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to the enactment of chapter 106, Sess. Laws 1893, p. 253, conditional sales of personal property retaining title in the vendor were valid in this state, not only between the vendor and vendee, but also as against subsequent bona fide purchasers, incumbrancers, or creditors. De Saint Germain v. Wind, 3 Wash. T. 189. 13 Pac. 753; Dodd & Co. v. Bowles, 3 Wash. T. 383, 19 Pac. 156; Quinn v. Parke & Lacy Machinery Co., 5 Wash. 276, 31 Pac. 866. To obviate the hardship of this rule, the Legislature passed the act of 1893, supra, which was afterwards amended by chapter 6, p. 6, Sess. Laws 1903. Section 1 of the last-mentioned act provides "that all conditional sales of personal property, or leases thereof, containing a conditional right to purchase, where the property is placed in the possession of the vendee, shall be absolute as to the purchasers, incumbrancers and subsequent creditors in good faith, unless within ten days after taking possession by the vendee, a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor's office of the county, wherein, at the date of the vendee's taking possession of the property, the vendee resides." This statute did not invalidate conditional sales as between the original vendor and vendee, or as to third parties not bona fide purchasers or incumbrancers, where no memorandum was filed with the auditor, or where the description in any memorandum duly filed was indefinite. This being true, the written agreement was competent evidence as tending to sustain the appellant's allegation of title in itself. The respondents contend that the description of the engine contained in the 'memorandum was insufficient to give constructive notice of appellant's title; that it described the engine as being located at Lynden; that it never was located or kept there; that the respondents first saw it in Nims' possession and apparent ownership near Bellingham: that the description in the written memorandum would apply to any one of numerous engines located in Whatcom county; that the appellant had failed to mention the name of the manufacturer stamped on the engine; and that the description was so imperfect as to make the memorandum void for the purpose of giving constructive notice to respondents, who claim to be subsequent holders as bona fide purchaser and mortgagee. We are unable to agree with this contention. The property when sold was in Snohomish county, and was to be thereafter delivered to Nims, who was to locate it at Lynden, in Whatcom county. This he never did. Assume, however, that he had done so, and that thereafter, without the knowledge or consent of the appellant, he had removed it to Bellingham, where the respondents first saw it, appellant would not have lost its title by reason of such removal. Yet, if the respondents had

thereafter dealt with Nims, they would have been in no better position as to constructive notice than they now are. The 1903 statute, without referring to the location of the property, provides that the memorandum shall be filed in the office of the auditor of the county where the vendee resides, and section 2 provides that the county auditor "shall enter in a suitable book to be provided by him at the expense of his county, with an alphabetical index thereto, and exclusively for that purpose, ruled into separate columns with appropriate heads, "The time of filing,' 'Name of vendor,' 'Name of vendee,' 'Date of instrument,' 'Amount of purchase price,' and 'Date of release.'" This contemplates that any person desiring to purchase personal property from one in possession thereof may, for protection, examine this book and index. Had the respondents done this, they would have learned of the memorandum of conditional sale, indexed in the names of appellant as vendor and Nims as vendee. It affirmatively stated that the vendor was a Seattle corporation, and that the vendee was a resident of Whatcom county. Respondents as intending purchasers could have applied to either for information. By doing so, they would have ascertained that Nims had no mill other than the one located near Bellingham, and that the engine they were about to purchase was the identical engine mentioned in the memorandum of conditional sale. By prosecuting inquiries suggested by the memorandum on file, they would have obtained all information necessary for their protection. The description should not be held insufficient as a matter of law. In Willey v. Snyder, 34 Mich. 60, Mr. Chief Justice Cooley, in commenting upon the sufficiency of descriptions in chattel mortgages, said: "But if a stranger is to be sent out to select property mortgaged, with no other means of identification than such as are afforded by the written description, and without being at liberty to supplement that information by such as can be gained in the mortgagor's neighborhood by inquiry of those who know what property the mortgagor was possessed of which would answer the description in the instrument when it was given, and by possessing himself of such other circumstances as persons usually avail themselves of in applying written descriptions to the things intended, it is much to be feared that the stranger would be so often at fault that chattel mortgages, if their validity depended upon his success in identifying the property, would seldom be of much value as securities. Written descriptions of property are to be interpreted in the light of the facts known to and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect-the parties and their privies. A subsequent purchaser or mortgagor is supposed to acquire a knowl edge of all the facts, so far as may be need

ful to his protection, and he purchases in view of that knowledge." Had respondents examined the index and files of the auditor's office, they would have learned of the conditional sale of an engine to Nims by appellant. As Nims resided in Whatcom county, this fact would have been sufficient to place a cautious business man on inquiry for the purpose of ascertaining what engine had been so sold. The evidence, however, fails to show that respondents either examined the records or made any investigation. As against Nims and all third parties not bona fide purchasers or incumbrancers, appellant was the owner, and respondents can only secure their alleged rights by showing tuat they were obtained from Nims in good faith. They severally alleged themselves to have been innocent holders, one as purchaser and the other as incumbrancer, without notice of appellant's title. These allegations being denied, the burden of proof to sustain them rested on respondents. No such proof was offered or made. A party seeking to avail himself of rights as an innocent purchaser must affirmatively plead and prove such rights. 2 Abbott's Trial Brief, p. 1634, § 43; Diemer v. Guernsey, 83 N. W. 1047, 112 Iowa, 393; Wilhoit v. Lyons, 98 Cal. 409, 33 Pac. 325. Under statutes of other states providing for the filing or recording of written memoranda of conditional sales, this rule has, in well-considered cases, been especially applied to defendants in replevin actions, who claimed to have purchased in good faith from vendees in possession of personalty under such conditional sale contracts. Crumrine v. Reynolds, 78 Pac. 402, 13 Wyo. 111; Singer Mfg. Co. v. Nash, 70 Vt. 434, 41 Atl. 429. The honorable trial court erred in refusing to admit in evidence the memorandum of conditional sale, with proof of its filing with the county auditor.

The respondents appeared by the same attorney, but answered separately. In their separate cost bills they each taxed a statutory attorney fee. The appellant moved the court to retax costs by allowing them but one fee. This motion being overruled, it assigns error, contending that respondents were entitled to one fee only. Assuming the respondents to be entitled to costs, this contention cannot be sustained. One respondent answered, claiming title by purchase, while the other pleaded a mortgage. These defenses were based on different contracts, and were properly presented by separate an

The fact that both respondents were represented by the same attorney is immaterial. Koyukuk Mining Co. v. Van de Vanter, 30 Wash. 385, 70 Pac. 966.

For error in refusing to admit the written memorandum in evidence with proof of its filing, the judgment is reversed, and the cause remanded for a new trial.

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

(47 Wash. 117)

STATE ex rel. AMALGAMATED REPUBLIC MINES CO. v. NICHOLS, Secretary

of State.

(Supreme Court of Washington. Sept. 6, 1907.) 1. CORPORATIONS- FOREIGN CORPORATIONSRIGHT TO DO BUSINESS-POWERS.

Ballinger's Ann. Codes & St. § 4291, providing that no foreign corporation shall be permitted to transact a real estate or brokerage business, and that the provision shall not extend to any other business for the transaction of which such corporation may be organized, does not permit foreign corporations to do business or to file articles of incorporation prohibited to domestic corporations.

2. SAME-EFFECT OF FILING.

The mere filing of articles of incorporation with the Secretary of State authorizes the corporation to do all the business named therein not expressly prohibited by law.

3. SAME-REAL ESTATE AND TRUST BUSINESS. 1 Ballinger's Ann. Codes & St. § 4291, provides that any foreign corporation incorporated for any of the purposes for which a domestic corporation may be formed shall have power to transact every kind of business in the state, in the same manner as domestic corporations, by complying with the provisions of the act, provided that such foreign corporation shall not transact business within the state on more favorable conditions than are prescribed for a similar domestic corporation, and that no foreign corporation subsequently organized empowered to deal in real estate or to carry on a real estate brokerage business shall transact such business in the state, etc. Held, that a foreign corporation organized after the passage of such act to buy and sell real estate and do a brokerage agency and trust business not organized under Laws 1903, p. 367, c. 176, providing for the organization of trust companies, was not entitled to file its articles of incorporation in the state and do business therein, such powers not being granted to domestic corporations not organized under that act.

Mandamus by the state, on relation of the Amalgamated Republic Mines Company, against Sam H. Nichols, as Secretary of State. Writ denied.

Geo. W. Belt, for plaintiff. A. J. Falknor and Cutts & Dorety, for respondent.

MOUNT, J. Action in mandamus to con.pel the Secretary of State to file in his office a certified copy of the articles of the Amalgamated Republic Mines Company, a poration organized under the laws of the territory of Arizona. The Secretary of State refused to file the articles, because, among the many powers of the corporation as defined by its charter, were contained powers to deal in real estate, do a brokerage and agency and trust business. The corporation avers that the only business it desires or intends to transact in this state is to acquire mines and to establish and operate mills for the treatment of ores. It disavows any intention of performing, or attempting to perform, any powers enumerated in its articles of incorporation, which powers are prohibited by thelaws of this state.

It is conceded that the relator has complied with all the provisions of the statute relating to the filing of articles of foreign cor

porations, and that it is entitled to have its articles filed here, unless the Secretary of State may refuse to file the same because the articles enumerate the powers to do a real estate, brokerage, agency and trust business. If these were the sole powers of the corporation, it is clear that the writ would not issue, because foreign corporations organized after 1890 are prohibited from doing a real estate or brokerage business in this state, and this corporation, which was organized in Arizona on May 6, 1907, is concededly not organized in pursuance of the provisions of the act of 1903 relating to trust companies. Laws 1903, p. 367, c. 176. Section 4291, 1 Ballinger's Ann. Codes & St., provides that any corporation incorporated under the laws of any state for any of the purposes for which domestic corporations are authorized to be formed under the laws of this state shall have power to transact every kind of business in this state, in the same manner and to the same extent as domestic corporations, by compliance with the conditions prescribed by succeeding sections, "provided, however, that this chapter shall not be so construed as to allow such foreign corporation to transact business within the state on more favorable conditions than are prescribed by law for a similar corporation organized under the laws of this state, provided, further, that no foreign corporation which is hereafter organized which has among its other powers the business of dealing in real estate, and buying and selling the same, and for the purpose of carrying on a real estate brokerage business, shall be permitted to transact such business of buying and selling and dealing in real estate, and carrying on a brokerage business therein, in this state; but this prohibition shall not extend to any other business for the transaction of which such corporation may be organized." The State Constitution also provides, at section 7 of article 12, that "no corporation organized outside the limits of this state shall be allowed to transact business within the state on more favorable conditions than are prescribed by law for similar corporations organized under the laws of this state." In the case of State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462, where a domestic corporation sought to amend its articles so as to change its name from "Osborne, Tremper & Co., Inc.," to "Seattle Trust & Title Company," without complying with the act of March 17, 1903, relating to trust companies, we held that mandamus would not lie to compel the Secre tary of State to file the amended articles. And in State ex rel. Gorman v. Nichols, 40 Wash. 437, 82 Pac. 741, where it was sought to form a domestic corporation to do a trust or agency business, where the corporation was not formed in accordance with the act of 1903 relating to trust companies, we refused to compel the Secretary of State to file the proposed articles. In this last-named

case some of the proposed powers of the corporation were powers for which the corporation might have been formed under the general incorporation laws, but most of the powers named were trust or agency powers. The formation of the corporation for those purposes was in violation of the trust company act, which provides that "hereafter no corporation shall be organized for the purpose of carrying on a trust company business in the state of Washington except under this act." Section 1, p. 367, c. 176, Laws 1903. In other words, we refused to permit a domestic corporation to be formed with trust powers among its other designated powers, where such corporation had not complied with the act relating to trust companies. It is clear, therefore, that, if the relator were a domestic corporation, the writ would not issue to require the respondent to file the articles. It seems to follow, from this decision and from the provisions of the statute and the Constitution, to the effect that foreign corporations shall not be allowed to transact business within the state on more favorable conditions than domestic corporations, that the writ ought not to issue in this case.

It is true the relator recites in the petition for the writ that it disavows any intention of doing any business prohibited by the laws of this state, but there is no provision of law by which such disavowal may become a public record, so that persons, dealing with the corporation might be informed of the powers of the corporation outside of the recorded articles. It is also true that the statute provides, at section 4291 (Ballinger's Ann. Codes & St.), that no foreign corporation shall be permitted to transact a real estate or brokerage business, and that "this provision shall not extend to any other business for the transaction of which such corporation may be organized." This provision cannot be construed so as to permit foreign corporations to do business or to file articles of incorporation prohibited to domestic corporations. The mere filing of articles of incorporation may not be the transaction of business within the meaning of the Constitution, but the filing of the articles apparently authorizes the corporation to do all the business named therein not expressly prohibited by law. A trust business is not denied to either foreign or domestic corporations. Either may do such business, but before doing so the corporation must be formed under the provisions of the trust act. Where the articles designate trust powers and the act relating to such powers is not complied with, the articles are misleading upon their face. Neither a foreign nor a domestic corporation can do business in this state without first filing its articles with the Secretary of State. If a foreign corporation is permitted to file articles which a domestic corporation cannot, it would seem apparent that the former is shown a preference. For the purposes of business in this state, a foreign corporation

is "organized" by the filing of a certified copy of its articles. To allow the relator to file its articles with trust powers would be in effect to permit its "organization" in derogation of the act of 1903, and upon more favorable conditions than are allowed to domestic corporations. This would be opposed to the public policy of the state as evidenced by the trust statute and the Constitution, cited supra.

We are of the opinion, therefore, that, when a domestic or a foreign corporation designates trust or agency powers in its articles of incorporation, it is required by the act relating to such powers to be incorporated in a particular way. The Secretary of State ought not to be compelled to file articles which do not conform to the law in that respect.

The writ is denied.

HADLEY, C. J., and FULLERTON, CROW, ROOT, RUDKIN, and DUNBAR, JJ., concur.

(47 Wash. 77)

In re PETRIDGE'S WILL.

PETRIDGE v. KOLDERUP. (Supreme Court of Washington. Sept. 6, 1907.) WILLS REVOCATION-FEME SOLE-MARRIAGE,

Ballinger's Ann. Codes & St. § 4598, declares that if, after making any will, the testator shall marry, and the wife shall be living at testator's death, such will shall be deemed revoked, unless provision shall have been made for her by marriage settlement, or she be provided for in the will, or in some way mentioned therein to show an intention not to make such provision, etc. Section 4615 declares that words used in the act which import the masculine gender may be extended to females, when such construction shall be necessary. Held, that where a feme sole made a will devising her entire estate to her brother, and afterwards married and died without issue, leaving her husband surviving, such will, which did not refer to the husband in any manner, was revoked by the marriage.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 469.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Application by T. II. Kolderup for the probate of the will of Alexia Halvorsen Petridge, deceased, to which II. B. Petridge, filed objections. From an crder admitting the will to probate and appointing Kolderup administrator with the will annexed, Petridge appeals. Reversed and remanded.

Fred II. Peterson and H. C. Force, for appellant. S. S. Langland, for respondent.

without issue. H. B. Petridge filed in the probate department of the superior court in and for King county a petition for his appointment as administrator, alleging that the will above mentioned had been revoked by subsequent marriage of the testatrix. T. H. Kolderup, on behalf of Emil Nelson, also filed a petition for the probate of the will and his appointment as administrator cum testamento annexo; the will having named no executor. From an order admitting the will to probate and appointing T. II. Kolderup administrator cum testamento annexo. II. B. Petridge has appealed.

The only question on this appeal is whether the will of Alexia Caroline Halvorsen was revoked by her marriage. At common law the subsequent marriage of a feme sole revoked her will, for by such marriage she was deprived of testamentary capacity, her will ceased to be ambulatory in its nature, and was therefore void. Subsequent marriage of a man did not revoke his will, for the common law made sufficient provision for his wife by her right of dower. But a subsequent marriage and birth of a child, taken together, revoked his will. 2 Greenleaf on Evidence, § 684; 4 Kent's Commentaries, §§ 521-527. The first Legislature of Washington Territory (Sess. Laws 1854, p. 312; Abbott's Real Property Statutes, 381) passed an act relating to wills which contained the following sections:

"Section 1. Be it enacted by the Legislature of Washington Territory, that every person of twenty-one years of age and upwards, of sound mind, may by last will devise all his estate, real and personal, saving to the widow her dower."

"Sec. 3. A married woman may by will dispose of any real estate held in her own right, subject to any rights which her husband may have as tenant by curtesy."

"Sec. 7. If, after making a will disposing of the whole estate of the testator, such testator shall marry and die, leaving issue by such marriage living at the time of his death, or shall leave issue of such marriage born to him after his death, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, and no evidence shall be received to rebut the presumption of such revocation.

"Sec. S. A will made by an unmarried woman shall be deemed revoked by her subsequent marriage."

The enactment of the above sections 7 and 8 was an adoption of common-law principles by our first territorial Legislature. This statute was continued without change until the territorial Legislature passed an entirely new

CROW, J. On April 27, 1903, Alexia Caroline Halvorsen, a single woman, residing in Seattle, executed her last will and testament, devising her entire estate to her brother, Emil Nelson, of Bordeaux, France. On Octo- ¦ probate act (Abbott's Real Property Statutes, ber 11, 1905, she married H. B. Petridge, | 385; Sess. Laws 1859–60, p. 165), chapter 2 whom she did not know at the date of the will. They lived together as husband and wife until December 27, 1906, when she died

of which related to wills. In this chapter. sections 3 and S of the act of 1854 were continued without change, while sections 1 and

7 were respectively succeeded by the following:

"Sec. 18. Every person who shall have attained the age of majority, of sound mind, may, by last will, devise all his estate, real and personal. This section shall not be construed as depriving a widow of her dower, nor a husband of his interest as tenant by the curtesy."

"Sec. 23. If, after making any will, the testator shall marry, and the wife shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for her by marriage contract, or unless she shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation, shall be received."

The acts of 1854 and 1860 both preserved to the widow and the husband, respectively, the common-law estates of dower and tenancy by the curtesy, which have since been abolished and no longer exist in this state. In Sess. Laws 1873, p. 252 (Abbott's Real Property Statutes 390), the territorial Legislature again enacted a probate practice act, of which chapter 3 (sections 22 to 43, inclusive) related to Wills. These sections, which were incorporated in the Code of 1881 without change, are now sections 4594 to 4615, Ballinger's Ann. Codes & St., and sections 2340 to 2361, Pierce's Code. Section 8 of the act of 1854, providing that subsequent marriage should revoke the previous will of an unmarried woman, was omitted from this act of 1873, while section 23 of the act of 1860 was re-enacted as section 26 (section 4598, Ballinger's Ann. Codes & St.; section 2344, Pierce's Code), with the exception that the words "marriage settlement" were substituted for the words "marriage contract." The chapter of the act of 1873 relating to wills also contained an entirely new section, numbered 43, being section 4615, Ballinger's Ann. Codes & St., and section 2361, Pierce's Code, reading as follows: "Sec. 43. Words in this chapter contained, or in this act which impart the singular number only, may also be applied to the plural of persons and things, and words imparting the masculine gender only may be extended to females also when such construction shall be necessary." Section 4597, Ballinger's Ann. Codes & St. (section 2343, Pierce's Code), relative to the revocation of wills, is to be found in all three of the territorial laws above mentioned, except that the words "testatrix" and "her" appeared first in 1873.

The respondent contends that the omission of original section 8 of the act of 1854 from the act of 1873 shows a legislative intent that the will of an unmarried woman should not thereafter be revoked in the event of her subsequent marriage. There might be some merit in this contention but for the fact that, at the identical time section 8 was

omitted, section 43 (section 4615, Ballinger's Ann. Codes & St.; section 2361, Pierce's Code) was first enacted. The appellant insists that, applying the rule of construction therein announced to section 4598, Ballinger's Anu. Codes & St. (section 2344, Pierce's Code), the latter should be construed under the facts of this case to read as follows: "If, after making any will, the testatrix shall marry and the husband shall be living at the time of the death of the testatrix, such will shall be deemed revoked, unless he be provided for in the will, or in some way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation shall be received." Having due regard to the language used in the two sections now being construed, and also considering the history of our legislation on wills, property rights of husband and wife, and the descent of realty and personalty, we hold that the construction urged by appellant is necessary and should be adopted. Endlich on Interpretation of Statutes. § 182. The acts of 1854 and 1860 relating to wills both protected the common-law estates of dower and tenancy by the curtesy from destruction by the will of either the husband or wife. The first Legislature (Sess. Laws 1854, pp. 305, 308), in chapters 11 and 12 of an act relating to executors, administrators, and the distribution of real and personal property, enacted a law of descents: chapter 11 making no provision for the inheritance of real property by the husband from the wife or by the wife from the husband, although chapter 12 did provide for such distribution of personalty under certain conditions. Section 242 of chapter 11 (page 308), however, reads as follows: "Nothing contained in this act shall effect the title of a husband as tenant by curtesy, nor that of a widow as tenant in dower." In 1869 the first separate and community property law defining the rights of married persons was enacted. Sess. Laws 1869, p. 318; Abbott's Real Property Statutes, 471. This statute was materially amended in 1871 (Sess. Laws 1871, p. 67; Abbott's Real Property Statutes, 474), but was re-enacted in 1873 (Sess. Laws 1873, p. 450).

It is evident from the separate and community property law, originally passed in 1869 and re-enacted in 1873, and the probate practice act of 1873, that the trend of legislation was a departure from the commonlaw principles, with a tendency towards an equalization of the property rights of husband and wife. An examination of the probate act and other statutes of 1873, however, discloses that no change in the law of descents was then made. The original act of 1854 relating to descents, with some immaterial amendments, was permitted to contiaue. doubtless by reason of legislative oversight or inadvertence. At the succeeding 1875 session, however (Laws 1875, p. 53), the Legislature passed an act to regulate the de

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