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forgery and notifying this appellant. It is also quite evident that appellant, or whosoever first cashed these forged checks, was guilty of some negligence in not having the party properly identified. But, laying aside the question of negligence as to appellant and those from whom he bought the checks, it does not appear from the pleadings and evidence in this case that the appellant suffered loss by reason of the delay or negligence of respondent. If the appellant had made a showing that at the time he wa.: apprised of the forgery he was unable to collect the money which he had paid for said checks, but that he could have done so if respondent had promptly detected the forgery, as it should have done, he would doubtless have a defense to this action. But nothing of the kind appears. So far as this record shows, the appellant, when apprised of the forgery, could have recovered from each of the parties from whom he received the checks the amount of money paid therefor, or was in as good a position to have done so as he would have been, had the respondent immediately protested the checks and notified him of the forgery. We think the judgment of the trial court was in accord with the principles enunciated in the opinion of this court upon the former hearing.

The judgment is affirmed.

HADLEY, C. J., and FULLERTON and MOUNT, JJ., concur.

(46 Wash. 686)

MORRIS et ux. v. HEALY LUMBER CO. et al.

(Supreme Court of Washington. Aug. 2, 1907. 1. LANDLORD AND TENANT-LEASE - ABANDONMENT.

The failure to build a logging road or railroad under a lease of premises "for a logging road or railroad to be thereafter constructed" was not such an abandonment of the lease as to entitle lessors to re-enter before expiration of the term.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 32, Landlord and Tenant, § 366.] 2. SAME TENANCY FOR INDEFINITE TERM.

A lease for one year, and so on from year to year, until the same should be terminated at the end of the first or any subsequent year by lessee giving one month's notice in writing to that effect, and providing that failure to pay rent should work a forfeiture thereof, was not a lease for an indefinite term. within Ballinger's Ann. Codes & St. & 4570,

3. SAME LACK OF MUTUALITY.

A lease, under which lessee may at its option hold the premises indefinitely, or terminate it on one month's notice, and conferring no right on lessor to terminate the same while the rent should continue to be paid, is not thereby rendered void for lack of mutuality. 4. EVIDENCE — PAROL

TERMS OF LEASE.

EVIDENCE-VARYING

Parol evidence to show that a lease was made on a condition that would defeat it is inadmissible.

[Ed. Note. For esos in point, see Cent. Dig. vol. 20, Evidence, § 1932.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Shamgar Morris and another against the Healy Lumber Company and others. From a judgment for defendants, plain tiffs appeal. Affirmed.

Walter S. Fulton, for appellants. Brownell & Coleman, for respondents.

FULLERTON, J. The appellants brought this action against the respondents to procure a cancellation of a written lease and to recover the possession of certain lands held by the respondents under and by virtue of the lease. The facts necessary to an understanding of the controversy are, in substance, these: The appellants own certain lands situated in King county, described, according to the United States government surveys, as the N. E. 14 of the N. E. 14 of section 9, and the N. 1⁄2 of the N. W. 4 and the N. W. 4 of the N. E. 4 of section 10, all in township 25 N. of range 7 E. of the Willamette meridian. The respondent IIealy Lumber Company owns land abutting upon the appellants' land on the north, east, and south. The land of the respondent is valuable chiefly for the timber standing upon it. Owing to the topography of the country in its vicinity, the lands of the respondent cannot be logged profitably without bringing the logs out through certain gulleys or ravines which extend diagonally across the appellants' land. In the year 1889, the respondent was engaged in logging the land lying north of the land of the appellants, and was bringing the logs out over a road extending diagonally across the two western 40-acre tracts above described, having theretofore entered into a written agreement with the appellants which granted it that right. In the year named, a dispute arose between the parties as to the extent of the rights conferred by the agreement, and an action was begun by the appellants against the respondent to have them judicially determined. This action was settled by the execution of the agreement out of which the action at bar arises. The latter agreement contained seven clauses, only two of which, however, are material to the present controversy. By the first clause, the appellants leased to the respondent for three years, "and no longer." the right to construct and operate a logging road through the two western 40-acre tracts, together with the right to use a small lake near the southern boundary of the land as a storage ground. By the third clause they leased to the respondent a strip of land 100 feet wide, being 50 feet on each side of a line theretofore surveyed through the two eastern 40-acre tracts, for a logging road or railroad to be thereafter constructed, and a tract of land in the northwest corner of the N. E. 4 of the N. W. 1⁄4 of section 10, suflicient in size for a logging camp. with the privilege of erecting buildings and other improvements thereon necessary

and convenient for the use of the respondent in conducting the logging business. The duration of the lease was prescribed in the following language: "To have and to hold said strip for a period of one year from the 24th day of October, 1889, and so on fron year to year until the lease mentioned in this clause shall be terminated at the end of the first year or any subsequent year by the party of the second part [respondent] giving to the parties of the first part [appellants] one calendar month notice in writing; the party of the second part yielding and paying the yearly rent of fifteen dollars ($15.00) on the 24th day of October of each and every year of said tenancy for said strip and the camping place hereinafter mentioned. Failure to pay said rent when the same falls due may be treated as a forfeiture of this lease by the parties of the first part." The roadway described in this clause of the lease was intended to connect with the roadway described in the first clause, at or near the place where the camp was located, and its situation is such that it cannot be used as an independent way, but must be used in connection with the road first described. The respondent, however, did not find it necessary to make use of the way during the life of the lease mentioned in the first clause, and no logging road or railroad was ever constructed over the way. It took possession of the camping place and erected a number of buildings thereon shortly after the lease was executed, using it in connection with its logging business conducted while the lease mentioned in first clause of the agreement was in existence. After that lease expired, it attempted to get it renewed by agreement, and failing in that it sought to procure a right of way under a statute attempting to confer on logging companies the right of eminent domain. The statute was held unconstitutional by the trial court, and the right to condemn denied; its judgment being affirmed by this court on appeal. Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964. After this decision, the respondent was obliged to cease its operations, since it was unable to get its logs to market. It therefore sold all of its stock and equipment of a perishable nature, keeping only its permanent equipment, blacksmith tools, and the like.

These

it has since kept in the building, on the camp site, where the other named respondents have since resided. Prior to commencing this action, the appellants made an ora! demand upon the respondent for possession of the premises described in the third clause of the lease, and, on its failure to surrender possession, brought this action for the purposes first stated. The trial court held that the facts did not justify a recovery, and entered judgment accordingly. This appeal is from that judgment.

The appellants' first contention is that there was an abandonment of this lease. But that there was no abandonment in fact

is at once apparent. The respondent is ac-. tually in possession, and has now all of the possession that was surrendered to it when the lease was executed. Did its failure to build either the logging road or railroad amount to an abandonment in law? It seems to us that it did not. There was no express agreement in the lease that it would build either of the roads. The lease merely lets the land to the respondent for that purpose, but does not obligate it to build. Hence it would seem that the mere failure of the lessee to do something it did not obligate itself to do could not be such an abandonment of the lease as to permit the lessor to re-enter before the expiration of the term. Doubtless, a failure on the part of the lessee to perform express stipulations contained in the lease may work a forfeiture where these stipulations are for the benefit of the estate or the profit of the lessor, but forfeitures are never favored, and will not be enforced, even in actions at law, unless the right is clear and the proofs evident. The lease in question here contains no express stipulations that have been violated by the lessee, and we must conclude that the lessor cannot declare the lease at an end on this ground.

The second contention is that the lease creates a tenancy at will, which could be terminated at any time by the lessor, and was so terminated by the oral notice to quit and the subsequent commencement of this action. But we cannot agree that this is the effect of the lease. In the first place, we think it may be doubted whether there is under the statutes of this state any such tenancy as a tenancy at will, at least, any such tenancy as was known by that name at the common law. The statute recognizes but four species of tenancies, namely, tenancies for a fixed time, tenancies from year to year, tenancies for an indefinite term, and tenancies by sufferance. Ballinger's Ann. Codes

& St. §§ 4568-4571. The nearest approach to a tenancy at will in the tenancies here mentioned is the tenancy for an indefinite time; but, if the lease in question creates a tenancy for an indefinite time, it does not aid the appellants in this action. Such a tenancy can only be terminated by a written notice given 30 days or more preceding the end of some rent-paying period (Id. § 4569), and no such notice was given in this case. But we do not think the lease was a lease for an indefinite time in the sense used in the Code. By its terms it was to expire, if not sooner forfeited for the nonpayment of rent, when the lessee gave one calendar month's notice in writing to that effect at the end of the first year of the lease or any subsequent year. In other words, it bound the lessor as long as the lessee paid the rent, and bound the lessee until he gave the calendar month's notice in writing. It is argued that this construction of the lease avoids it, because it then lacks mutuality. But mutuality in this sense is not essential to a valid lease.

this state there are no restrictions upon the right of alienation. A person owning land in fee may convey a fee, and, having power to convey a fee, may convey any interest in the land less than a fee. Tischner v. Rutledge, 35 Wash. 288, 77 Pac. 388. So, in this case, the appellants, having power to convey their whole estate by deed, had power to convey in the same manner any lesser estate therein.

Lastly, it is contended that the court erred in excluding evidence as to the consideration that actuated the appellants in entering into the lease. But such evidence was immaterial to any issue made by the pleadings. While it is permissible for certain purposes to show by parol what the actual consideration was upon which a deed is founded, it is never permitted where the purpose of the evidence is to annex a condition to the instrument not expressed in it. Here the purpose of the oral evidence was to show that the grant was made upon a condition that would defeat its operative effect, and for this purpose parol evidence is inadmissible. Wright v. Stewart, 19 Wash. 179, 52 Pac. 1020.

The judgment appealed from is affirmed.

HADLEY, C. J., and MOUNT, CROW, and ROOT, JJ., concur.

(46 Wash. 664)

CURTIS v. CURTIS et al. (Supreme Court of Washington. Aug. 1, 1907.) 1. DIVORCE-CUSTODY OF CHILD-MODIFICATION OF DECREE-SUFFICIENCY OF SHOWING.

Where on divorce the custody of a minor child was awarded a third person, a showing made by the mother afterwards that through her improved health she was able to support and educate the child, and was a proper person to have its care and custody, was sufficient to warrant a modification of the decree by awarding the child to her; it being unnecessary to show that its welfare demanded a change in its custody.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 793, 794.]

2. SAME-MOTHER'S MORAL CHARACTER.

That long before marriage, and before her child's birth, and in her earlier years, the wife was immoral, does not establish her present unfitness to have the custody of her minor child on divorce; her past character being known to the husband when they married, and there being no showing of her improper conduct since. 3. SAME-CONSENT TO DECREE - CONCLUSIVE

NESS.

That in a divorce suit the wife stipulated a third person might have her minor child's custody did not estop her from afterwards seeking a modification of the decree.

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Rebecca Viola Curtis against Frank M. Curtis and another. Defendant and Clara Maltby appeal from a decree modifying a decree granting a divorce and the custody of a minor child to Maltby. Affirmed.

Hathaway & Alston, for appellants. J. Y. Kennedy, for respondent.

FULLERTON, J. On May 24, 1906, in an action pending in the superior court of Snohomish county between the respondent and the appellant Frank M. Curtis for a divorce, the court entered a decree divorcing the parties and awarding the care and custody of their minor son, then of the age of 4 years, to the appellant Clara Maltby, further decreeing that the appellant Curtis pay to Mrs. Maltby the sum of $15 per month for the maintenance of the child. On October 23d thereafter, the respondent petitioned the court for a modification of the decree to the effect that the child be taken from the custody of Mrs. Maltby and awarded to her, alleging as grounds therefor that the appellant Maltby and her husband were then engaged in running a hotel at Marysville, Wash., connected with which was a saloon, which could be entered by a door opening therein from various parts of the hotel; that much drinking and carousing occurred in the saloon, which could be witnessed by the boy by merely opening one of the doors leading to the saloon; and, further, that the boy was permitted to mingle promiscuously with the guests of the hotel and the patrons of the saloon. She further alleged that at the time of the decree she was much broken in health, caused by the cruel treatment of her husband, and consented to the decree awarding the child to Mrs. Maltby without fully understanding the effect of the same, believing that it was but temporary, and that a hearing would be had before a final decree would be made relating to the permanent custody of the child. She also alleged that she was earning lucrative wages as a cook, and by doing domestic and laundry work in the town of Index, Wash., and was capable of caring for and educating the child. The ap pellants put in issue the allegations of the petition by answer, and a trial was had on the merits of the controversy. The trial court held that the respondent was entitled to the custody of the child and modified the decree accordingly.

The respondent offered no evidence whatever in support of her allegation that the appellant Maltby was subjecting the child to improper influences, nor did she show, or attempt to show, that the child was not receiving due and proper care. She confined her proofs to the allegation that she, herself, by reason of her change in health, was then able to support and educate the child, and was a proper and fit person to have its care and custody. It is the appellant's contention that this showing is not suflicient; that the respondent should have shown not only her own changed condition, but that the welfare of the child demanded a change in its custodian before the court was authorized to modify the original decree. But the rule is not so broad as this. It is true this court

said, in Koontz v. Koontz, 25 Wash. 336, 65 Pac. 546, that a decree of the superior court which determines the custody of infant children is conclusive upon the court which rendered the decree, and upon all other courts, in the absence of a material change in the condition and fitness of the parties, or the requirements for the welfare of the child; but it did not mean by this that both these conditions had to concur before a change in the decree could be made. While the welfare of the child is in all cases, where the court is clothed with power of its disposition, the primary consideration, yet it is not the policy of the law to take children away from their parents and give them to strangers merely because the strangers are better provided financially to rear and educate them than are the parents. Parents are their children's natural protectors. They have an interest in them that is not shaken by acts of disobedience or ingratitude, and because of this interest children under their parents' immediate care, even though their surroundings be humble and their opportunities narrow, are much more apt to grow up useful men and women than they are when reared by strangers, who do not have this natural affection for them. When, therefore, the parents are able to care for their children, it is the policy of the law to award their custody to them, rather than to the custody of stran

gers.

The appellants further urge, however, that the wife is unfit morally to have the custody of the child. But we do not think the evidence establishes this fact. The specific acts of immorality charged against her, even admitting that they are proven, occurred in her earlier years, long before her marriage to the appellant Curtis or the birth of the child, and were known, moreover, by him at the time of such marriage. Surely he should not be permitted to urge these as a reason for depriving her of her offspring. Nor do we think Mrs. Maltby can urge the matter. The mother's right to the child must depend on her present conduct, and we find nothing in the evidence that impugns her character for morality and decency occurring since her marriage with the appellant.

It is contended that, because the respondent stipulated in the divorce that the child should be awarded to Mrs. Maltby, she cannot now question the decree. We do not think, however, that this fact has any bearIng upon her right to now seek its modification. A stipulation in an action ordinarily merely takes the place of evidence. It was so here, and the decree founded thereon no more estops the parties from seeking its modification than would a decree founded upon evidence of a different character.

The order appealed from is affirmed.

HADLEY, C. J., and CROW, MOUNT, and ROOT, JJ., concur.

PIPER v. PIPER.

(46 Wash. 671)

(Supreme Court of Washington. Aug. 1, 1907.) 1. MARRIAGE-ANNULMENT-PROCESS ICE BY PUBLICATION.

SERV

Pierce's Code, § 335, subd. 4 (Ballinger's Ann. Codes & St. § 4877), authorizing service of summons by publication on a nonresident defendant in an action for divorce, authorizes like service in an action for the annulment of a marriage.

2. STATUTES-ACTS RELATING TO MORE THAN ONE SUBJECT-DIVORCE AND ANNULMENT OF MARRIAGE.

Statutes classifying an action for the annulment of a marriage with an action for divorce are not in violation of the constitutional requirement that no bill shall embrace more than one subject, which shall be expressed in its title; the subject of the annulment of marriage being germane to that of divorce.

Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Action by Dollie A. Piper against William E. Piper. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Roche & Onstine, for appellant. R. M. Barnhart and Carroll A. Gordon, for respondent.

HADLEY, C. J. This is an action for the annulment of a marriage. The complaint alleges that the plaintiff and defendant were intermarried on the 29th day of November, 1899, and that prior to and at the time of the marriage defendant had a wife living, his marriage to whom was still in force and effect, undissolved by decree of divorce or otherwise. Affidavit in due form was filed, showing that the defendant is a nonresident of this state and that his residence is unknown to the plaintiff; his last known place of residence being stated. Service of publication summons was regularly made in the usual manner. No appearance was made by the defendant, and in due time a default was claimed against him. The plaintiff offered evidence in support of her complaint, when the deputy prosecuting attorney, who appeared in behalf of the state, objected to the hearing of any evidence on the ground that the action is one for the annulment of a marriage, and that service of summons by publication is not authorized in such a case. The court sustained the objection, and thereupon entered judgment dismissing the action. Plaintiff has appealed.

The sole question presented by the appeal is whether our statutes authorize service of summons by publication in an action of this character. Section 335, subd. 4, Pierce's Code (Ballinger's Ann. Codes & St. § 4877), authorizes service by publication upon a nonresident defendant "when the action is for divorce in the cases prescribed by law." Appellant argues that an action for the annulment of a marriage is. in this state of the same nature as an action for divorce, and that it has always been treated by our Legislatures in the passage of statutes as in effect

the same. We believe this is true. In the territorial law of 1854 (Laws 1854, p. 405 et seq.) and again in the territorial law of 1862 (Laws 1862-63, p. 413 et seq.), suits for divorce and alimony and for the annulment of marriages are treated together in the same legislative acts. The same is true of section 2600 et seq. of the Code of 1881, and also of a subsequent act of the state Legislature found in Sess. Laws 1891, p. 42, c. 26. The legislative designations of the above statutes are as follows: "An act regulating divorces." "An act to regulate suits for divorce and alimony," "An act in relation to applications for divorce, amendatory of section 2000 * * * of the Code of 1881." Section 4632 of Pierce's Code (Ballinger's Ann. Codes & St. § 5718) provides that one must reside in this state for one year before applying for a divorce, and the same section makes the same provision with regard to suits for annulment of marriage. Section 4633 also . provides that the court shall require proof in either a suit for divorce or for annulment, when there has been a failure to answer, or when the answer admits the allegations of the complaint. It thus appears that our Legislature has invariably treated actions for divorce and for the annulment of marriage as belonging to one general subject, and in conferring jurisdiction to grant divorces it has also been made to include the annulment of marriages.

No constitutional objection can well be urged against classifying the two actions together, for the reason that the subject of the annulment of marriage is germane to that of divorce, and the statutes are therefore not repugnant to the constitutional requirement that "no bill shall embrace more than one subject, and that shall be expressed in the title." That these two matters are often treated in statutes as of the same subject and as germane to each other is evident from the following: "The word 'divorce,' as now used, means a dissolution of the bonds of matrimony, although, as used in the statutes of many states, it includes both nullity and divorce. * * * The jurisdiction of court to annul marriages is usually conferred by statutes including both causes for annulment and causes for divorce, without attempt to distinguish one from the other. * * * The nullity suit, like a suit for divorce, is a proceeding to establish the status of the parties. Therefore the proceeding must be brought where the parties are domiciled. The law of domicile will be the same as in divorce proceedings." 19 Am. & Eng. Enc. of Law, pp. 1218, 1219. "A suit to declare a marriage null is held to be within the term 'divorce suit in a statute of the sort we are considering." 2 Bishop on Marriage, Divorce, and Separation. § 786. The same author, at section 808 of said volume, says: "A statute creating a jurisdiction for 'divorce' carries with it suits for nullity--a doctrine before stated in another aspect." In view of the

not uncommon legislative policy above indicated, as well as in view of the express provisions of our statutes, we think it has been the evident intention of our Legislature to establish the same jurisdiction and practice for both divorce and annulment suits. It follows that there was authority to serve the summons by publication in this action.

The judgment is therefore reversed, and the cause remanded, with instructions to vacate the judgment of dismissal and proceed to hear the appellant's testimony.

FULLERTON, MOUNT, ROOT, and CROW, JJ., concur.

(46 Wash. 568)

PIERCE et ux. v. PETTIT et al. (Supreme Court of Washington. Aug. 1, 1907.) 1. APPEAL-PRESENTATION OF ERROR-EXCEPTIONS-NECESSITY.

Where no exceptions were taken to the court's findings of fact, they are not subject to review on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1536.]

2. VENDOR AND PURCHASER-RESCISSION BY PURCHASER-WAIVER.

Though, at the time vendees paid a part of the purchase price of land and received a memorandum receipt therefor, providing that if title as shown by an abstract to be furnished was not good, and could not be made good, then the agreement should be void, it was represented that vendor, who had but a contract of sale, was the owner, yet vendees, having learned that vendor had but a contract of sale before themselves subsequently entering into a contract of sale of the land and the owner being able, ready, and willing to convey, they were not thereby excused from performance of the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 238, 268.]

Appeal from Superior Court. King County; A. W. Frater, Judge.

Action by C. C. Pierce, Jr., and another, against Herman C. Pettit and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

McCafferty & Bell, for appellants. Shank & Smith, for respondents.

HADLEY, C. J. This is a suit to recover $800, which was the sum paid by the plaintiffs as a part of the purchase price upon a contract to purchase real estate. The cause was tried by the court, and recovery was denied. Judgment was entered dismissing the action, and the plaintiffs have appealed.

Errors are assigned upon certain of the court's findings, and considerable discussion of the evidence in reference thereto is contained in appellants' brief. The record, however, discloses no exceptions to the findings, and they are therefore not reviewable here, as we have often held. Late expressions of the court in point may be found in the following cases: Hoeschler v. Bascom (Wash.) S7 Pac. 943, and Bybee v. Bybee (Wash.)

ST Pac. 1122.

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