Opinion Per RUDKIN, C. J.

[55 Wash.

of the section 18.11 feet south of the other surveys at the initial point mentioned in the description, and 39.38 feet south at the southwest corner of the tract. Under this state of facts, the appellant contends, first, that the Anderson survey is the correct one; and second, that the conveyance was made with reference to the Anderson survey, and that that survey, right or wrong, must control. The court below found against the appellant on both of these contentions, and its findings are amply sustained by the testimony.

It seems to us that the overwhelming weight of the testimony shows that the Gardner survey, according to which the fence was being constructed, is the correct one, and that the tract was not conveyed with reference to any particular survey or boundary. Indeed, the testimony tends to show that both the White and Gardner surveys were made at the instance of the appellant for the express purpose of locating the boundary, and that he sold portions of his land on the north with reference to those surveys, thus selling land which he did not own if the Anderson survey is to be adopted. The fact that the appellant undertook to sell land that he did not own does not concern the respondents, but it tends to show the understanding of the parties. Complaint is made because the respondents acquired a quitclaim deed from the property owner to the south for a strip of land lying between the Gardner survey and a certain street shown by the Anderson survey, but that question does not concern the appellant. The testimony clearly shows that the respondents purchased the identical lands they are now claiming, and that the acts of the appellant are without warrant or authority in law. The judgment is therefore affirmed.

MOUNT, PARKER, CROW, and DUNBAR, JJ., concur.

Nov. 1909]

[No. 7853.

Opinion Per Curiam.

Department One. October 6, 1909.]

CHARLES ELREY et al., Appellants, v. HARLAN P. CHRISTIE et al.,

Respondents.1

Appeal from a judgment of the superior court for Franklin county, Zent, J., entered September 15, 1908. Reversed.

A. C. Routhe and A. A. Hinman, for appellants.
Horrigan, O'Brien & Coad, for respondents.

PER CURIAM.-This case depends upon the same record and is controlled by the case of Timmerman v. McCullagh, ante p. 204, 104 Pac. 212. For the reasons given in that case the judgment is reversed, and the cause remanded with instructions to enter a judgment for the appellants quieting the title to the property described in their complaint.

[No. 7657. En Banc. November 4, 1909.]

J. B. CORDINER, Appellant, v. MILLARD R. McMAHAN et al.,
Respondents.2

Appeal from a judgment of the superior court for Chelan county, Steiner, J., entered July 14, 1908. Affirmed.

Cordiner & Cordiner and J. C. Kleber, for appellant.

Reeves & Reeves, for respondents.

PER CURIAM.-This action involves the question determined in the case of Cordiner v. Dear, ante p. 479, 104 Pac. 780, and is affirmed on the grounds stated in the opinion in that case.

[No. 7658. En Banc. November 4, 1909.]

J. B. CORDINER, Appellant, v. MINNIE L. KIRKENDALL et al.,
Respondents.

Appeal from a judgment of the superior court for Chelan county, Steiner, J., entered July 14, 1908. Affirmed.

Cordiner & Cordiner and J. C. Kleber, for appellant.

Reeves & Reeves, for respondents.

PER CURIAM.-This action involves the question determined in the case of Cordiner v. Dear, ante p. 479, 104 Pac. 780, and is affirmed on the grounds stated in the opinion in that case.

'Reported in 104 Pac. 214.

'Reported in 104 Pac. 783.

[No. 7708. Department Two. November 15, 1909.]

OLYMPIA LIGHT & POWER COMPANY, Respondent, v. TUMWATER POWER & WATER COMPANY, Appellant, LEOPOLD F. SCHMIDT et al.,

Defendants.1

Appeal from a judgment of the superior court for Thurston county, Linn, J., entered May 4, 1908. Dismissed.

G. C. Israel, Martin L. Pipes, George H. Funk, and Frank C. Owings, for appellant.

T. N. Allen and Troy & Falknor, for respondent.

PER CURIAM.-By virtue of a stipulation of the parties on file herein, to the effect that this cause shall abide the disposal of cause No. 7707, in which an opinion was filed herein on the 28th day of October, 1909, Olympia Light & Power Co. v. Tumwater Power & Water Co., ante p. 392, 104 Pac. 778, it is hereby ordered that the appeal herein be dismissed.

[No. 8177. Department One. November 16, 1909.]

FRANK N. MCCANDLESS, Appellant, v. FRED T. PETERSON et al., Respondents.1

Appeal from a judgment of the superior court for King county, Morris, J., entered February 20, 1909, upon findings in favor of the defendants, after a trial before the court without a jury.

Blattner & Heasty and L. B. da Ponte, for appellant.

Larrabee & Wright, for respondent Peterson.

Reversed.

Fred L. Rice and Cross & Rice, for respondents Fraser et al.

PER CURIAM.-This action was brought to recover certain property sold on tax foreclosure sale. The facts bring it within the recent cases of Gouid v. Knox, 53 Wash. 248, 101 Pac. 886; Gould v. White, 54 Wash. 394, 103 Pac. 460; Gould v. Stanton, 54 Wash. 363, 103 Pac. 459.

The case is therefore reversed, with instructions to the lower court to ascertain the value of the permanent improvements put upon the property by the respondents, and also all amounts paid out in taxes, special taxes, and local assessments, under the provisions of chapter 137, Laws 1903, and to enter judgment accordingly.

'Reported in 104 Pac. 1135.

INDEX.

ABANDONMENT:

Of lease, see LANDLORD AND TENANT, 5.

ABATEMENT AND REVIVAL:

1.

Election of remedy, see ELECTION OF REMEDIES.

Judgment as bar in another action, see JUDGMENT, 9-12.

ABATEMENT AND REVIVAL-ANOTHER ACTION PENDING-PLEA-DIS-
MISSAL OF FIRST ACTION. A motion to vacate a judgment cannot be
pleaded in abatement of another action for the same cause, where
the motion was dismissed on stipulation without prejudice before
the plea in abatement was filed. Flueck v. Pedigo.
646

ABSENTEES:

1. ABSENTEES - AGENT OF ABSENTEES APPOINTMENT AUTHORITY.
Where, upon the partition of an estate, an agent for absentees was
appointed in probate to receive and care for their portion of the
estate, distributed to them, and later by a suit in equity, the dis-
tribution was set aside and a different tract of land distributed to
the absentees in lieu of the first, the agent still retains authority
to act under the appointment in probate as to the later parcel
finally awarded. Bickford v. Stewart....
... 278

2.

3.

SAME-SALE BY AGENT-PETITION. Where an agent for absentees
was appointed in probate, under Bal. Code, § 6371, to receive their
portion of the inherited estate distributed to them, and the ap-
pointment was later continued in a suit in equity instituted for a
redistribution, a sale by the agent under order of court pursuant
to § 6373, is not affected by the fact that the petition for sale was
filed in the equity case; since that court had then acquired and
exercised probate jurisdiction over the estate. Bickford v. Stew-
art......
278

....

SAME-POWER TO SELL-CONSTITUTIONAL LAW-TAKING PROPERTY
WITHOUT DUE PROCESS OF LAW. The act, Bal. Code, §§ 6371-6375,
authorizing the appointment in probate of an agent for absentees
to receive their portion of the estate, and if not claimed within one
year, to sell the same under an order of court, paying the proceeds,
less expenses, into the county treasury, for the use of the absentees,
is within the inherent legislative power of the state to control the
inheritance and descent of property, and does not violate the con-
stitutional inhibition against the taking or sale of property without
due process of law. Bickford v. Stewart....

278

ABSENTEES-CONTINUED.

4.

ABSENTEES-APPOINTMENT OF AGENT-Sales-METHOD OF SALE-
STATUTES. The act, Bal. Code, §§ 6371-6375, authorizing the appoint-
ment in probate of an agent for absentees to recover their portion
of the estate, and to sell the same if not claimed within a year, is
not ineffective as to the sale by reason of failing to provide a
method of sale, where it provides for sale by the agent "under order
of court" and all the procedure required for administrator's sales
was followed. Bickford v. Stewart..
278

ABUTTING OWNERS:

Assessments for expenses of public improvements, see MUNICIPAL
CORPORATIONS, 5-17.

Rights as to vacation of streets, see MUNICIPAL CORPORATIONS, 22-28.

ACCEPTANCE:

Of offer or proposal, see CONTRACTS, 2.

Of goods sold, in general, see SALES, 4, 5.

ACCIDENT:

Injuries to servant, see MASTER AND SERVANT.

Defective sidewalks, see MUNICIPAL CORPORATIONS, 31.

From automobiles in streets, see MUNICIPAL CORPORATIONS, 32-34;
NEGLIGENCE, 3.

From fright of horses, see NEGLIGENCE, 1, 2.

At railroad crossings, see RAILROADS.

ACCORD AND SATISFACTION:

Relinquishment of rights and claims, see RELEASE.

ACCOUNT:

Form of action for, see ACTIONS, 1.

Accounting by officers of corporations, see CORPORATIONS, 4.

ACCRUAL:

Of right of action, see LIMITATION OF ACTIONS, 1.

ACQUIESCENCE:

In location of boundary lines, see BOUNDARIES.

ACTION:

Abatement of action, see ABATEMENT AND REVIVAL.
Stay of proceedings, see APPEAL AND ERROR, 11.
Conditions precedent, see APPEAL AND ERROR, 39.
Establishment of boundaries, see Boundaries.
Breach of contract, see CONTRACTS.

By and against corporations and stockholders, see CORPORATIONS, 1-4.
Setting aside judgment of divorce, see DIVORCE, 1, 2.