(47 Wash. 178) BENEKE et al. v. BENEKE et al. (Supreme Court of Washington. Sept. 18, 1907.) 1. HUSBAND AND WIFE-I'ROPERTY PURCHASED IN PART WITH COMMUNITY FUNDS. Property purchased in part with community funds is community property to the extent and in the proportion that the consideration is furnished by the community. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 901.] 2. SAME. That the community advanced money to compromise or procure the release of a disputed claim against the separate property of one of the spouses does not convert the same or any definite portion thereof into community property. Appeal from Superior Court, Spokane County; Miles Poindexter, Judge. Action by Anna W. Beneke, personally and as administratrix of the community property of Henry Beneke, deceased, and Anna W. Beneke, his wife, against Henry J. Beneke, as alleged executor of the estate of Henry Beneke, deceased, and others. Judgment for defendants, and plaintiffs appeal. Affirmed. See 89 Pac. 150. W. D. Scott and H. M. Stephens, for appellants. Danson & Williams and Fred H. Moore, for respondents. RUDKIN, J. In the month of August, 1895, Mary Zander Beneke died intestate in Spokane county. At the time of her death she and her husband, Henry Beneke, were possessed of the real property now in controversy, together with other property in Spokane county, all of which was either the separate property of the husband or the community property of the husband and wife. Soon after the death of the wife a dispute arose between the surviving husband and the four children of the marriage over the distribution of the estate; the surviving husband claiming the whole as his sole and separate property, and the children claiming an undivided one-half interest therein as community property and as heirs at law of their deceased mother. An action was thereupon commenced by the surviving husband in the superior court of Spokane county against the heirs of the deceased wife to establish title in himself. During the pendency of this action, and on the 19th day of May. 1897, said Henry Beneke and the plaintiff Anna W. Beneke intermarried and maintained the relation of husband and wife thereafter until the death of the husband on July 29, 1905. Soon after this marriage Henry Beneke and his children entered into an agreement or stipulation, reciting that Henry Beneke claimed all the real estate in process of administration as his sole and separate property, that the children claimed a onehalf interest therein as community property, and that they deemed it for their best interests to settle their conflicting claims and to have the estate distributed without further delay or expense; and and it was thereupon 91 P.-41 agreed that the father should pay the sum of $1,000 to each of the four children, and that upon the distribution of the estate certain described property should be awarded and decreed to each child. A decree of distribution was entered in pursuance of this agreement or stipulation, and the property now in controversy, subject to a mortgage of $1,300, together with certain other property, was awarded to Henry Beneke. Upon the entry of the decree of distribution Henry Beneke and the plaintiff herein executed their promissory note in the sum of $5,300 to pay each of the four children the sum of $1,000 as agreed, and to take up the $1,300 mortgage already on the property; and the land in controversy was mortgaged to secure the payment of the note. The note was afterwards paid, in part out of the separate funds of the plaintiff and in part out of the community funds of Henry Beneke and the plaintiff, according to the allegations of the complaint. Henry Beneke died testate in Spokane county on the 29th day of July, 1905, having by will disposed of the property in controversy to certain of his children. This action was thereupon prosecuted in the name of the surviving wife, as administratrix of the community property of herself and her deceased husband, against the executor of the will and the devisees named therein, to recover possession of the property as a part of the community estate. If community property, her right to recover should probably prevail; but, if not, it is manifest that her complaint should be dismissed. The court below gave judgment in favor of the defendants, and the plaintiffs appeal. If we concede that the property in dispute was the community property of Henry Beneke and his first wife, we do not understand by what process it was converted into the community property of Beneke and his second wife. In any view of the case, Henry Beneke had an undivided one-half interest in the property as surviving husband, and, if it be conceded that he and the appellant purchased the undivided one-half interest belonging to the children, this would not convert the whole into community property. The utmost that can be said in favor of the appellant is that the community would have an interest in the property, in the proportion that the funds advanced by the community bore to the entire purchase price, under the decision of this court in Heinz v. Brown, 90 Pac. 211. But what would that interest be? The children were paid in part for their interest by the conveyance or distribution of property in which Henry Beneke confessedly had a one-half interest, and in which the appellant had none. One thousand three hundred dollars of the money went to satisfy an existing mortgage, and the remainder went to satisfy the claims of the heirs in part. What proportion this sum bore to the entire amount received by the heirs is uncertain and incapable of ascertainment; and when we consider that the money was paid for the release of a disputed claim, which was very doubtful at best, the uncertainty is still further increased. If the community advances money to compromise or procure the release of a disputed claim against the separate property of one of the spouses, in the nature of things this cannot convert the whole or any definite portion into community property. If the appellant has any claim, it is in the nature of a claim against the separate estate of Henry Beneke for moneys advanced by the community, such as she is prosecuting in the action instituted after the dismissal of the present action in the court below. In view of the conclusion we have reached on the merits, we express no opinion on the motion to dismiss the appeal. There is no error in the record, and the judgment is affirmed. HADLEY. C. J., and CROW, FULLERTON, and MOUNT, JJ., concur. (47 Wash. 172) CITY OF SEATTLE v. FOSTER. (Supreme Court of Washington. Sept. 17, 1907.) STATUTES-REPEAL-IMPLIED REPEAL. Under the rule that repeals by implication are not favored, Laws 1899, p. 222, c. 121, § 15, requiring a pharmacist to enter in a book sales of intoxicating liquors, and providing that no liquors shall be sold except for medical, etc., purposes, which is a part of the statute relating to the practice of pharmacy, does not impliedly repeal Laws 1887-88, p. 125, c. 72, § 6 Ballinger's Ann. Codes & St. § 2937), authorizing a pharmacist to sell intoxicating liquors without a license only on the prescription of a physician, which is a part of the chapter relating to intoxicating liquors. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 229. Appeal from Superior Court, King County; A. W. Frater, Judge. C. Foster was convicted of selling intoxicating liquors without a license, in violation of an ordinance of the city of Seattle, and he appeals. Affirmed. Morris, Southard & Shipley, for appellant. Ellis De Bruler, for respondent. RUDKIN, J. The appellant, Foster, was convicted of the crime of selling intoxicating liquors without a license, in violation of an ordinance of the city of Seattle; and from the judgment of conviction the present appeal is prosecuted. The case was submitted to the court below upon an agreed statement of facts, the material parts of which are as follows: The appeilant conducted a pharmacy in the city of Seattle for the compounding, dispensing, and sale of drugs, medicines, poisons, wines, and malt and spirituous liquors, under the pharmacy laws of the state. On the 20th day of September, 1906, he sold to Mrs. John Kelly two bottles of malt liquor; the purchaser stating at the time of purchase that she pur At chased the same for medical purposes. the time of the sale the appellant kept in his place of business a registry book, in which he entered the name of the purchaser, the quantity purchased, the date, and for what purpose used, as required by section 15 of the pharmacy act of 1899 (Laws 1899, p. 222, c. 121); but such sale was not made on the written prescription of a reputable physician, as provided by section 6 of the act of February 2, 1888 (Laws 1887-88, p. 125, c. 72; Ballinger's Ann. Codes & St. § 2937), and by the ordinance of the city of Seattle, nor did the appellant have a license from the city for the sale and disposal of malt liquors. On these facts the appellant contends that the provisions of the act of February, 1888, and of the ordinance of the city of Seattle, which only authorize druggists and pharmacists to dispense spirituous, fermented, and malt and other intoxicating liquors without a license, when done in good faith upon the written prescription of a reputable physician. were superseded by the pharmacy act of 1899, supra, and that since the passage of the latter act druggists and pharmacists may sell intoxicating liquors without a license, by merely keeping and making the proper entries in the registry book above referred to. With such a contention we are unable to agree. While the pharmacy act of 1899 provides that sale of wines and spirituous and male liquors may be made by pharmacists and druggists for medical, scientific, mechanical, and sacramental purposes without a license, it does not in terms or by implication dispense with the necessity for a physician's prescription or certificate when the liquors are sold to be used for medical purposes. The well-established rule that repeals by implication are not favored in law has a peculiar application here, for the two acts under consideration relate to widely different subjects-the former, to the sale and disposal of intoxicating liquors; the latter, to the conduct of the drug business. We are firmly convinced that the Legislature did not intend to permit a drug store to become a grogshop by merely keeping a formal record of its sales, and such would be the ultimate effect of upholding the contention of the appellant. There is no error in the record, and the judgment is affirmed. HADLEY, C. J., and CROW, MOUNT, and FULLERTON, JJ., concur. (47 Wash. 174) BALLARD et al. v. SLYFIELD et al. (Supreme Court of Washington. Sept. 18, 1907.) HUSBAND AND WIFE-COMMUNITY PROPERTYPRESUMPTION. Property acquired by purchase during marriage is presumed to be community property, and the burden rests on the spouse asserting its separate character to establish his or her claim by clear and satisfactory proof. ¡Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 913, 914.] 2. SAME-EVIDENCE-SUFFICIENCY. Evidence held to show that certain property was the separate property of the wife, and not community property. [Ed. Note. For cases in point, see Cent. Dig. vol. 26. Husband and Wife, § 916.] Appeal from Superior Court, King County: George E. Morris, Judge. Action by Irving M. Ballard and others against Sarah Slyfield and others to quiet title and recover rents and profits. Judgment for defendants, and plaintiffs appeal. appeal. Affirmed. F. A. Gilman, for appellants. Harold Preston, for respondents. RUDKIN, J. Irving Ballard and Lucinda M. Ballard intermarried on the 20th day of December, 1870, and continued to reside together as husband and wife until the death of the husband in the city of Seattle on December 30, 1880. On the 15th day of April, 1875, Edward A. Thorndyke and wife conveyed the property now in controversy to Lucinda M. Ballard, the wife of Irving Ballard. The present action was instituted on the 30th day of January, 1906, by the heirs at law of Irving Ballard, deceased, against the grantees of Lucinda M. Ballard, to quiet title to an undivided one-half interest in the property and to recover the rents and profits for the six years next preceding the commencement of the action. The defendants had judgment below, and the plaintiffs appeal. estate, and the title to said property remained thereafter unchanged until the conveyance thereafter to the defendant Sarah Slyfield, hereinafter referred to; and thereafter, during his lifetime, the said Irving Ballard regarded, considered, and declared said property to be the separate property of his said wife, and at the time of the death of the said Irving Ballard he had no right, title, or interest in or to, or made any claim to, said property, or any part thereof, so that, upon his death, no interest therein passed to the plaintiffs, or either of them, nor have the plaintiffs, or either of them, ever had any interest therein." This finding, of course, supports the judgment of dismissal; but the appellants earnestly insist that it is not supported by the testimony. The law governing this class of cases is well settled in all the community property states. Property acquired by purchase during the marriage is presumed to be community property, and the burden rests upon the spouse asserting its separate character to establish his or her claim by clear and satisfactory proof. The difficulties of obtaining proof under the circumstances disclosed by this record are apparent. The property was acquired 30 years before the adverse claim was asserted. One of the parties to the transaction is dead, and the other is an adverse witness. The testimony of the surviving wife is of little importance, consisting largely, as it does, of a disclaimer of knowledge or recollection of either law or facts. But, in so far as it may tend to support the claim of the appellants, it is utterly inconsistent with the acts and conduct of the witness covering the period of 25 years since her husband's death. Soon after his decease she filed a petition for letters of administration on his estate, purporting to contain a list or statement of all his property; but no mention was made of the property in dispute. The same is true of the verified inventory filed. She twice mortgaged the property for her own benefit, and finally conveyed it by warranty deed, receiving the full consideration therefor. The conduct of the appellants was equally inconsistent. No claim against the property was asserted by any or either of them until 6 years after the property had passed into the hands of stran The court found, among other things: "That the consideration of said conveyance was the sum of $900 then and there paid to the grantors therein by the said Irving and Lucinda M. Ballard. That said sum of $900 was made up, either wholly or in large part, of money which was then and there the separate property of the said Lucinda M. Ballard, and which she had previously received as an inheritance from the estate of her maternal grandfather; and the remainder. if any, of said sum, was paid out of the community funds of the said Irving and Lucinda M. Ballard. That at the time of said conveyance it was the intention of both the said Irving Ballard and the said Lucinda M. Ballard. then expressed, that the conveyance should operate to vest the title to said property in the said Lucinda M. Ballard as her sole and separate estate, and, if any part of the purchase price therefor was paid out of community funds, it was then and there the intention of the said Irving Ballard to make a gift thereof to his said wife, and to make a gift to her of said property so far as any part of the consideration therefor may have been contributed out of the community funds, and the deed was made to run to the said Lucinda M. Ballard by the express direction, at the time, of the said Irving Ballard, and said conveyance then and there operated to vest the title to said property in the said HADLEY, C. J., and CROW, FULLERLucinda M. Ballard as her sole and separate | TON, and TON, and MOUNT, JJ., concur. At the time of the assertion of this claim the eldest child was 32 years of age, or 11 years beyond his majority, and the youngest, a daughter, 24 years of age, or 6 years beyond her majority. When we take into consideration the acts and conduct of the widow and children during all these years, the declarations made by the husband in his lifetime, and all the facts and circumstances in the case, think the court was fully warranted in making the above finding, and its judgment is accordingly affirmed. VENDOR AND PURCHASER-CONTRACT-VALIDITY MISTAKE - CANCELLATION - UNJUST . PROVISION. Where plaintiffs made a contract to sell land to defendants not knowing it contained a provision requiring them to accept as cash any contracts of sale which defendant might make of portions of the land to other persons, and plaintiffs afterwards gave receipts for contracts so made by defendant, relying on his interpretation of the provision of their contract with him that it did not prevent their receiving payment otherwise, if payments were not made on the contracts made by him with others, and subsequently he insists on the opposite construction, they may have their contract with him canceled unless he agrees to elimination of the provision. [Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 35-37.] Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge. Action by Iredell S. Stone and others against H. L. Moody and wife. Judgment for defendants. Plaintiffs appeal. Reversed and remanded, with instructions. M. F. Gose, T. P. Gose, and C. C. Gose, for appellants. W. H. Winfree, for respondents. ROOT, J. This case was here once before, and may be found reported in 41 Wash. 680, 84 Pac. 617, 5 L. R. A. (N. S.) 799, to which reference is made for a more complete statement of the facts involved. Upon the first trial a motion for nonsuit was made at the close of plaintiffs' case, and no evidence was introduced by defendants. The court, having sustained the latters' motion, dismissed the action. This court reversed the judgment and remanded the case for a new trial. Upon the second trial both plaintiffs and defendants introduced evidence. The trial court made findings and conclusions in favor of defendants, and entered judgment and decree thereupon. From this the present appeal is prosecuted. Appellants maintain that they did not know that the contract contained the provision requiring them to accept as cash any contracts of sale which respondent Moody might make of portions of the land to other persons. Taking into consideration the extraordinary character of this provision, the opportunity which it would afford for fraud, and considering the matter in the light of all the evidence adduced, we are satisfied that they did not know that said provision was in the contract. Subsequently, when they signed the receipt for $22,500, on February 27, 1904, they learned that the provision above referred to was in the contract which they had signed. Moody, having sold or pretended to sell a portion of the land to one Heller for $22,500 upon terms, requested appellants to sign a receipt for such sum as if the same were a cash payment. At first they declined to do so and asked time to take legal counsel concerning the same. They testified that Moody refused to give them any time, but threatened to bring action against them at once for heavy damages in case they did not immediately sign the contracts to Heller and the receipt in question; that he thereupon proceeded to explain to them that they did not understand the matter aright; that it was merely a matter of form, and did not deprive them of the right to receive full payment in cash before parting with title to the land; that he had made a sale to Heller, and it was necessary to have the contracts and this receipt signed in order that Heller, upon making full payment, would be entitled to get a deed from them; that he intended to deal rightly and honestly by them, and that this was not a receipt for cash, but merely for the contracts which had been entered into by Heller; and that it was not intended to prevent them from getting full payment in cash before deeding the property. They also testified that they did not understand, in signing the receipt, that it was as a receipt for cash, but were told by Moody, and supposed and believed, that it was merely a receipt for the contracts with Heller; that they signed the receipt with the express understanding that it was merely a receipt for the contracts and a matter of form, that was necessary to be gone through in connection with respondent's deal with Heller, and not intended as evidence of a cash payment to them, and that they did not receive the Heller contracts as equivalent to a cash payment, nor intend to give credit upon their contract with Moody for the sum of $22,500, or any sum whatsoever, by reason of said Heller contracts; that they relied upon the explanation and interpretation of the contract as thus given by Moody, and received the Heller contracts and signed the receipt only upon the understanding that their contract bore the interpretation which he had thus assured them of. We are satisfied that the contention of the appellants is substantially correct. It is almost inconceivable that appellants would have signed the contract, had they known it contained the clause requiring them to accept, as cash, contracts that respondent might make for the sale of certain portions of the land. That appellants, after discovering that the contract had this clause, would sign a receipt such as they did on February 27, 1904, with the purpose and intention of thereby giving respondent Moody a credit of $22,500 upon the purchase price for the lands sold by them, when they received no cash, but only the contracts for the purchase of a portion of the land, would be a most remarkable circumstance. It would be unreasonable and inexplicable, unless done under some such understanding as that testified to by appellants. It appears from the evidence that IIeller has paid nothing to appellants on the contracts made to him. Ap pellants have received only $1,500 on account of the sale to Moody. The judgment of the honorable superior court is reversed, and this cause remanded, with the following instructions: Within 90 days from the filing of the remittitur with the clerk of the superior court, the respondents may file with the clerk of that court a written statement that they accept the contract with appellants, with the elimination of the clause requiring appellants to accept as cash, or give them credit for as cash, the Heller contracts, or any other contracts made, or to be made, for the sale of any portion of the land involved, and that they will accept such contract with appellants with the interpretation that the payments therein provided for shall be made by or for them at the times therein provided in cash. If respondents file this statement in the manner indicated, and shail, within said 90 days, pay in to the clerk of the court for the benefit of these appellants the amount of all payments, with interest thereon, due under said contract up to said time, then said contract shall remain in force and effect, with the interpretation as herein given. If respondents do not file such statement, or do not within said 90 days pay into said court for appellants the amount of payments and interest due up to said date, then the trial court shall enter an order and decree annulling and canceling the contract entered into between appellants and respondents concerning said land, and appellants shall pay in to the clerk of that court for respondents all money, with interest, paid by respondents to appellants on account of such contract, less the amount of taxable costs allowed in this action to appellants against respondents. Appellants shall make said payment to the clerk of the court within 10 days from the expiration of the 90-day period hereinbefore mentioned. HADLEY, C. J.. and FULLERTON, MOUNT, CROW, DUNBAR, and RUDKIN, JJ., concur. (47 Wash. 162) ADVANCE THRESHER CO. v. SCHIMKE et al. (Supreme Court of Washington. Sept. 12, 1907.) ATTACHMENT-ON DEMAND OTHERWISE SE CURED. Under Ballinger's Ann. Codes & St. § 5893, made applicable to chattel mortgage foreclosures by section 5879, and providing that plaintiff shall not prosecute any other action for the same matter while he is foreclosing his mortgage, and section 5351, requiring the affidavit for attachment to specify the amount of indebtedness, plaintiff in an action to foreclose a chattel mortgage may not have a writ of attachment issued before judgment, though an attachment is an ancillary proceeding; the intent of section 5893 being to prevent a mortgagee securing an additiona! remedy in anticipation of a deficiency judgment, while looking to the mortgage security, and before exhausting the same, and it being impossible for plaintiff, prior to a deficiency judgment, to state in his affidavit the amount of indebtedness-that is, the deficiency. [Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attachment. § 37.] Appeal from Superior Court, Lincoln County; W T. Warren, Judge. Action by the Advance Thresher Company against John M. Schimke and another. An attachment was dissolved, and plaintiff appeals. Affirmed. Martin & Wilson and W. M. Nevins, for appellant. Neal, Sessions & Myers, for respondent. CROW, J. On August 27, 1906, the plaintiff, Advance Thresher Company, a corporation, sold to the defendants, John M. Schimke and Fred Knoblich, certain farm machinery. To secure the purchase price the defendants executed and delivered to the plaintiff two notes for $855 and $775, falling due October 1, 1906, and October 1, 1907, together with a chattel mortgage on the machinery and other personal property. On October 30, 1906, the plaintiff commenced this action to foreclose its mortgage, and forthwith caused a writ of attachment to be issued and levied upon property of the defendant Schimke other than that described in the mortgage. The trial court, upon motion of defendant Schimke, entered an order dissolving the attachment, and the plaintiff has appealed. The controlling question before us is whether, in an action to foreclose a mortgage, a writ of attachment may be issued before judgment. Section 5893, Ballinger's Ann. Codes & St. (made applicable to chattel mortgage foreclosures by section 5879, Ballinger's Ann. Codes & St.), reads as follows: "The plaintiff shall not proceed to foreclose his mortgage while he is prosecuting any other action for the same debt or matter which is secured by the mortgage, or while he is seeking to obtain execution of any judgment in such other action; nor shall he prosecute any other action for the same matter while he is foreclosing his mortgage or prosecuting a judgment of foreclosure." Appellants contend (1) that an attachment may issue in an equitable action, citing Bingham v. Keylor, 19 Wash. 555, 53 Pac. 729; and (2) that the attachment, being a provisional remedy ancillary to the main action, is not another action for the same debt, in contemplation of section 5893. While in Bingham v. Keylor, supra, which was an action for the dissolution of a partnership, an accounting, and the appointment of a receiver, it was held that an attachment might issue in an equitable action, in so holding we said: "* * * Where the object of the action is to dissolve a partnership and for an accounting, and it is shown that upon such accounting a balance will be due the plaintiff, we perceive no reason why the plaintiff may not have an at |