The respondent was permitted to testify that Dr. Senn examined him and advised him that his bowel trouble was caused by yellow fever. The evidence shows that this was in 1900. This evidence was immaterial, but it does not follow that its admission was error. Counsel for appellant cross-examined at length as to how the operation in 1900 should have been performed. These matters were not a part of the case. The ultimate questions for the jury to determine were: (1) Was the negligence of the city the proximate cause of the immediate injury; and (2) the damages sustained thereby by the respondent? Who advised or performed the operation in 1900, and whether it was done in the most approved way, were collateral to the main inquiry. A case will only be reversed for prejudicial error. Hoseth v. Preston Mill Co., 104 Pac. 612. 3 Wigmore on Evidence, § 2180. Upon the | ities cited are cases where there had been no cross-examination of respondent he was asked previous examination. There was no error if he was not drawing a pension for total in this ruling. disability at the time of receiving the injury. The court sustained an objection to this question, which ruling is said to have been error. No authorities are cited in support of its relevancy. We do not understand that the appellant at the trial sought to prove that the respondent was suffering from a total disability before the accident, but rather that, owing to his physical condition, it was negligence for him to have ridden a bicycle in the dark without a lantern, and that his ailment was not increased by reason of the accident. The respondent, as we have stated, testified that up to a short time preceding the injury he was earning $2.50 a day grinding knives in a mill. This the appellant, not only did not attempt to disprove, but corroborated by the testimony of the foreman of the mill. The appellant offered in evidence certain papers purporting to be the originals in the matter of a pension the respondent was receiving for infirmities resulting from his service in the United States army in the Philippine Islands. They were first offered in an unopened package. The court observed that they were offered as a mass; that, not being advised as to what they contained, he would sustain the objection to their being admitted in evidence. Later one of appellant's counsel addressing the court said: "Of this mass we offer the last three pages, being the medical examination and physician's certificate made in February, 1901, showing the condition of the man at that time." This case was tried in April of this year, more than eight years after the date of the report sought to be introduced in evidence. The offer was denied on the ground that the papers were not properly identified. The witness stated that he had received them by mail and believed them to be the original papers. We think there was no error in the ruling of the court. It is at least doubtful whether the papers were sufficiently identified. They were inadmissible on at least two other grounds: (1) They were too remote in point of time; and (2) the certificate of the medical examiner was hearsay. Conn. Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593, 24 L. Ed. 294. Certain hypothetical questions were propounded upon which error is assigned. These were based upon facts which the evidence tended to prove, and as such were proper. State v. Underwood, 35 Wash. 558, 77 Pac. 863; State v. Alcorn, 7 Idaho, 599, 64 Pac. 1014, 97 Am. St. Rep. 252. The contention that the court commented on the facts is without merit. The court may, in ruling upon an objection interposed by counsel during the progress of the trial, or during the argument of counsel to the jury, assign a reason for a ruling without violating the provision of the Constitution forbidding the court to comment on the facts. It is urged that the court committed error in refusing to instruct the jury that in determining the question of the respondent's negligence it should take into consideration whether or not he was intoxicated. The evidence shows that the injury was sustained between 9 and 10 o'clock in the evening. The only evidence as to his intoxication is the testimony of one witness that he saw the respondent at 5 or 6 o'clock in the afternoon, the day of the accident; that he was then "about half jagged." He further said: "I do not know whether you would call it drunk or not." If the witness who saw the respondent did not know whether he was drunk or sober, the jury would not be given an instruction from which it might guess that he may have been drunk. The testimony that "he was about half jagged" is not only indefinite, but is too remote in point of time to require an instruction covering the respondent's state of sobriety. The law deals with reasonable probabilities. Instructions framed to cover vague and possible conditions arising from the evidence would tend to confuse and obscure the issues. The other errors assigned by the appellant do not require separate consideration. We have examined the instructions given and Prior to the trial the court appointed cer- those requested and refused, and we think, tain physicians to examine the injuries sus- without specially setting out the instructions tained by the respondent, and they examined given, that they fully presented to the jury him. During the trial the appellant asked the general controlling principles of law the court to require the respondent to submit governing the case. The jury were instructto a further examination by one of these ed that it was the duty of the city to keep physicians. The court refused to do so; and its streets in a reasonably safe condition no liability; that a person traveling by night | complaint contains the usual averments in is required to use greater care than a travel- the foreclosure of a real estate mortgage, er by day; that in determining the question and further alleges: That since July 20, of contributory negligence they should con- 1907, James Thompson and the appellant, sider the condition of health and soundness Sadie V. Thompson, have been husband and of body of the respondent; that, if the trav- wife; that at the time of the marriage eler has any physical infirmities, he should James Thompson was the owner of the mortexercise care commensurate with those in- gaged property; that on September 20, 1907, firmities; that it was for them to determine James Thompson borrowed from the respondwhether it was negligence for the respondent ent the sum of $1,400, and for the purpose of to have ridden his bicycle without a light securing its payment he upon that date on the night in question. The law as to executed and delivered to her a mortgage whether the city had notice of the obstruc- upon the property, describing himself as an tion in the street was also fully covered by unmarried man. The prayer is for a forethe instructions. closure of the mortgage, a sale of the mortgaged property, and an adjudication that the appellant wife has no interest in the prop The judgment will therefore be affirmed. RUDKIN, C. J., and CHADWICK and erty. The appellant, Sadie V. Thompson, in FULLERTON, JJ., concur. PANCY. HOOKWAY v. THOMPSON. (Supreme Court of Washington. Nov. 23, 1909.) 1. HOMESTEAD (§ 42*)-SELECTION-OCCUUnder Ballinger's Ann. Codes & St. § 5243 (Pierce's Code, § 5485), providing that in order to select a homestead the head of a family must execute and acknowledge, in the same manner as a grant of real property, a declaration of homestead, and file the same for record, mere Occupancy by the head of a family, without execution and filing such declaration, is insufficient to create a homestead. [Ed. Note.-For other cases, see Homestead, Cent. Dig. § 60; Dec. Dig. § 42.*] 2. HOMESTEAD (§ 95*) - EXEMPTION - PRIOR MORTGAGE. Ballinger's Ann. Codes & St. §§ 5215, 5243 (Pierce's Code, §§ 5457, 5485), provides that a homestead may be selected from the separate property of the husband by the wife executing a declaration of homestead and filing the same for record, and section 5246 (section 5488) declares that, "from and after the time" the declaration is filed for record, the premises shall constitute a homestead. Held, that the words "from and after the time" precluded the giving of a homestead declaration a retroactive effect, and hence a declaration filed after the execution of a mortgage on the property of the husband, as an unmarried man, though after his marriage, was ineffective as against the mortgage. [Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 141-146; Dec. Dig. § 95.*] Department 1. Appeal from Superior Court, King County; John F. Main, Judge. Suit by Augusta Hookway, as guardian of the person and estate of Walter F. Heimann, a minor, against Sadie V. Thompson and another. Decree for plaintiff, and defendant Sadie V. Thompson appeals. Affirmed. George W. Saulsberry and L. Y. Devries, for appellant. Aust & Terhune, for respond ent. GOSE, J. This action was instituted by the respondent to foreclose a mortgage on lot 2 in block 4 of McGraw's Washington Park addition to the city of Seattle. The her separate amended answer, admits that she was married to her codefendant on July 20, 1907; admits that he was the owner of the property at the time of the marriage; and alleges affirmatively that, immediately after the marriage, she and her codefendant moved onto the premises and into the house situate thereon, that she has since occupied the same as a homestead for herself and her husband, that she has no other home or homestead; that her husband is absent from the state at a place unknown to her; that he refused to claim the property as a homestead, and that on June 15, 1908, she executed and filed with the county auditor of the county where the property was situate for the joint use and benefit of herself and a declaration of homestead on the property, husband, and that she has expended her separate funds in improving the property. The action was commenced on March 4, 1908, and, as we have stated, the declaration of homestead was executed and filed on June 15th following. A demurrer was interposed to the answer, on the ground that it did not state facts sufficient to constitute a defense. From a judgment sustaining the demurrer, the appeal is prosecuted. The single question presented for determination is whether a mortgage executed to secure a contemporaneous loan is valid by a husband upon his separate real estate and enforceable against a subsequent declaration of a homestead on the part of the wife. The question to this extent is a new one in this court, and its determination necessitates an examination of our homestead statutes. The applicable provisions are contained in 2 Ballinger's Ann. Codes & St., and are as follows: "Sec. 5214. The homestead consists of the dwelling house, in which the claimant resides, and the land on which the same is situated, selected as in this chapter provided. "Sec. 5215. If the claimant be married the homestead may be selected from the separate property of the husband." "Sec. 5243. In order to select a homestead the husband or other head of a family, or in case the husband has not made such selection, the wife must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record." "Sec. 5246. From and after the time the declaration is filed for record the premises therein described constitute a homestead." Pierce's Code, §§ 5456, 5457, 5485, 5488. brought into existence by the doing of the several statutory acts by the claimant, and that it exists and speaks from the date of the filing, and not otherwise. The appellant acquired no homestead right by occupancy. There is nothing in the statute which remotely suggests that occupancy even initiates the right. A party executing a declaration of homestead must state either that he is residing on the premises selected, or that he intends to reside thereon, and that he claims them as a homestead. It may be remarked that there is no provision in the law for the abandonment of the homestead by a discontinuance of possession, but that the statute expressly provides that a declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded. Under the prior law (Code of Laws 1881, § 342) the homestead could be selected at any time before sale. In construing that statute, we held that no formal declaration was necessary in the selection of a homestead, but that its mere occupancy as such by the owner and his family constituted a selection. Philbrick v. Andrews, 8 Wash. 7, Anderson v. Stadlmann, 17 Wash. 433, 49 Pac. 1070. The appellant One of the most valuable aids in the inurges that we have adopted the same con- terpretation of a remedial statute is to construction of the present statute, and cites in sider the old law, the mischief, and the remsupport of the contention: Wiss v. Stewart, edy, and it is the business of the courts so 16 Wash. 376, 47 Pac. 736; Anderson v. to construe the law as to suppress the misStadlmann, supra, supra, Ross v. Howard, 25 chief and advance the remedy. 1 Cooley's Wash. 1, 64 Pac. 794; Whitworth v. McKee, Blackstone, star page 88. The mischief of 32 Wash. 83, 72 Pac. 1046; Curry v. Wil- the old law was that a homestead right son, 45 Wash. 19, 87 Pac. 1065; North Pacific could be impressed upon real estate without Loan & Trust Company v. Bennett, 49 Wash. the record giving any notice of its existence. 34, 94 Pac. 664; and a case from this state The remedy intended by the statute was that (In re Thompson [D. C.] 140 Fed. 261). In such right could only be created by the filing all these cases except the Bennett Case, of a declaration of homestead, and that it the homestead had been selected by occu- could only be abandoned by the filing of a pancy under the law of 1881. While in some declaration of abandonment. The evident of the earlier cases cited the court remark- purpose of the statute was that a homestead ed that the new law changed the old law should exist in virtue of the record only. as to the manner of selection but not as to The spirit pervading the entire law negatives time of selection, the fact remains that the the view that upon the filing of a declaration language was used in construing the old law. of homestead it operates retroactively and This is made clear, and the position of the defeats a pre-existing right. "The homecourt as to the relation of the present stat- stead right and the joint interests are creute to the prior one is well stated, by Chief ated by the executing, acknowledging, and Justice Fullerton, in Whitworth v. McKee, recording of the declaration. The new char32 Wash. 99, 72 Pac. 1051, in the following acter of the estate, with its new incidents, language: "We agree with counsel that the commences at that moment, and the new later statute so far superseded the earlier rights vest in both parties [meaning husband one that no new homestead right can now be and wife] at the same time." Barber v. Baacquired under it, or could have been so ac- bel, 36 Cal. 16. In Gleason v. Spray, 81 quired since the passage of the later statute. Cal. 221, 22 Pac. 552 (15 Am. St. Rep. 47), in ***" He then pointed out that a home- construing the words "a declaration of abanstead selected by occupancy under the old donment is effective only from the time it law was a vested interest, or an estate which is filed in the office in which the homestead could not be destroyed by the repeal of the is recorded," it was said: "This last seclaw under which it was acquired. The same tion, it is to be observed, fixes the time when view is announced in Donaldson v. Winning- the homestead character of the property is ham, 48 Wash. 374, 93 Pac. 534, 125 Am. extinguished by abandonment, and does not St. Rep. 937. It would seem that the mean- give the abandonment any retroactive operaing of the present law as to the time and tion." It was held in this case that a conmanner of selection of a homestead, and as veyance of the homestead after the filing of to when and how a homestead right is cre- a declaration of abandonment took precedence ated, is so clear as to make it certain that over one executed while the property was a a homestead can only be selected by the ex- homestead. The court remarked that the ecution and filing of a homestead declara- words "from the time" must have been used tion, and that the premises constitute a advisedly. The provisions of our statute homestead only from and after the time the (section 5246 and the section in relation to declaration is filed for record. The words the abandonment of a homestead) are literal of the statute "from and after the declara- transcripts from the California statute con by assignment from a third person to whom it cure the indebtedness, that after the owner had been assigned by the deceased owner to sepledged the first certificate to plaintiff he assigned his interest to defendant subject to the indebtedness secured, and that the title to the second certificate assigned to the third person, subject to the indebtedness, was owned by the deceased owner at the time of his death. states a good cause of action against the administratrix of the deceased owner as against a demur rer. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 1856; Dec. Dig. § 447.*] 4. EXECUTORS AND ADMINISTRATORS (§ 114*) -ESTOPPEL. "from the time" speak only in the future, the stronger words, declaring that the premises described in the declaration shall constitute a homestead "from and after the time" it is filed, cannot be construed as having any retroactive force. This construction is supported by the following cases: Titman v. Moore, 43 Ill. 169; Reinbach v. Walter, 27 Ill. 393; Smith v. Richards, 2 Idaho (Hasb.) 498, 21 Pac. 419; Hines v. Duncan, 79 Ala. 112, 58 Am. Rep. 580; Bullene v. Hiatt, 12 Kan. 98; Hook v. Richeson, 115 Ill. 431, 5 N. E. 98; Davies-Henderson Lumber Co. v. Gottschalk, 81 Cal. 641, 22 Pac. 860; Tuttle v. Howe, 14 Minn. 145 (Gil. 113), 100 Am. pledged as security sued the administratrix of Where the assignees of stock certificates Dec. 205; McCormick v. Wilcox, 25 Ill. 274; the deceased pledgor for dividends received on Symonds v. Lappin, 82 Ill. 213. The lan- the certificates, one of which had been assignguage in the Bennett Case was used in con-ed to her, subject to the pledge, and the administratrix paid a specified sum to have the suits struing section 15, p. 93, Laws 1899, which dismissed, she could not, in a subsequent action provides that the occupant of a homestead to foreclose the lien on the stock, urge that shall remain in possession of it after the the money paid was her individual money, and foreclosure of a mortgage and until the time secured by the certificate which had been asthat it should all be applied on the indebtedness for redemption has expired. To the extent signed to her. that it conflicts with this opinion it is overruled. To the same extent Waldron v. Kineth, 41 Wash. 459, 84 Pac. 16, 111 Am. St. Rep. 1022, is also overruled; the controlling question there being the right of one having a homestead to object to confirmation of sale. It follows from what we have said that the lien of a mortgagee in good faith cannot be defeated by the filing of a declaration of homestead subsequent to the execution and filing of a mortgage. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 465, 466; Dec. Dig. § 114.*] Department 1. Appeal 1. Appeal from Superior Court, King County; Geo. E. Morris, Judge. Action by Otto Beyer against Mary P. Bullock, as administratrix of Walter F. Plunkett, individually, and others. From a judgment for plaintiff, defendant Mary P. Bullock, as administratrix, appeals. Affirmed. Geo. McKay, for appellant. O. F. Cutts, The judgment will therefore be affirmed. for respondent. RUDKIN, C. J., and FULLERTON and CHADWICK, JJ., concur. MORRIS, J., took no part. Where two or more defendants unite in a demurrer to the complaint, and a good cause of action is stated against one or more, the de murrer will be overruled. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 486, 487; Dec. Dig. § 204.*] 2. PLEADING (§ 204*)-ANSWER-DEMURRER. The principle beneath the rule that where two or more defendants unite in a demurrer to the complaint, and a good cause of action is stated against one or more, the demurrer will be overruled, applies to an answer. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 488; Dec. Dig. § 204.*] 3. EXECUTORS AND ADMINISTRATORS (§ 447*)ACTION AGAINST ADMINISTRATRIX-PLEAD ING-DEMURRER. The complaint, in an action to foreclose a lien on certificates of stock, which alleges that plaintiff is the holder of one certificate of stock under a pledge from the deceased owner to secure a debt and the holder of the other certificate, together with the indebtedness it secured GOSE, J. This action was commenced for the purpose of foreclosing a lien upon two blocks of corporation stock evidenced by separate certificates, and to have the appellant, Mary P. Bullock, personally held as a trustee for certain dividends, which it was alleged she had received on the stock and failed to account for or pay over. The reSpondent held one of the certificates by a direct assignment from Walter F. Plunkett, the appellant's intestate, and the other, together with the indebtedness it secured, by assignment from Charles H. Beyer to whom it had been assigned by Plunkett. Each of the certificates was assigned by Plunkett as security for certain indebtedness. Plunkett had assigned the one certificate to the respondent, he assigned his interest in it to the appellant, subject to the indebtedness which it secured. The title to the Charles H. Beyer, certificate, subject to the indebtedness against it, was owned by Plunkett at the time of his death. The appellants jointly demurred to the complaint, on the ground that several causes of action had been improperly united. The demurrer being overruled, they answered jointly, renewing the objection. There was a decree for the plaintiff, from which this appeal was taken. After [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dec. Dig. § 1170.*] The first error is assigned to the overruling | linger's Ann. Codes & St. § 6535 (Pierce's Code, of the demurrer. Where two or more defend-$ 1083), disregard technically incorrect rulings on ants unite in a demurrer to the complaint, questions of practice not resulting in prejudice to the party complaining. and a good cause of action is stated against one or more of them, the demurrer will be wholly overruled, and the same rule will be applied to an answer. Pomeroy's Code Remedies (3d Ed.) § 606. A good cause of action was stated against the appellant as administratrix of the Plunkett estate, and the demurrer was therefore properly overruled. 2. PARTY WALLS (§ 9*)-RIGHTS AND LIA BILITIES. A party wall agreement binding on the successors and assigns of the parties thereto runs with the land, and is binding on the grantees of the respective parties. [Ed. Note.-For other cases, see Party Walls, Cent. Dig. §§ 42-53; Dec. Dig. § 9.*] 8. VENDOR AND PURCHASER (§ 238*)-BONA FIDE PURCHASER. A purchaser with notice from a purchaser without notice may claim any immunity his grantor has because of the fact that he was a purchaser without notice. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 580-582; Dec. Dig. § 238.*] 4. PARTY WALLS (§ 6*)-AGREEMENTS-IMPLIED AGREEMENTS. Prior to the commencement of the action, the respondent and Charles H. Beyer each commenced an action against the appellant, as administratrix, to require her to pay certain dividends, which in each case it was alleged she had received on the stock. These suits were commenced before Charles H. Beyer had assigned his certificate to the respondent. Thereafter and on April 4, 1907, the appellant administratrix paid to the attorneys for the plaintiffs therein, they being wall on the boundary line between his own and Where the owner of a lot erects a party each represented by the same counsel, the the adjacent lot, resting partly on each, no imsum of $600 for the purpose of having the plied obligation is imposed on the owner of the suits dismissed. A receipt was given her at adjacent lot to contribute to the cost of the wall on making use of it, but such obligation the time of payment, stating that the money to exist must be created by express contract. had been paid in the two cases. One-half [Ed. Note.-For other cases, see Party Walls, the payment was applied upon the indebted-Cent. Dig. § 17; Dec. Dig. § 6.*] ness in favor of the respondent, and the bal- 5. PARTY WALLS (§ 9*)-RIGHTS AND LIAance was applied upon the indebtedness in favor of Charles H. Beyer. This action was commenced in December, 1907, and about eight months after such payment. The contention is now made that the entire $600 was the individual money of the appellant, Bul: lock, and that it should all be applied upon the indebtedness secured by the stock she now owns. She made no such claim at the time of payment. At that time she not only failed to direct the application of the money, but accepted a receipt in her representative capacity. This is made clear by the testimony of the attorney to whom she made the payment. It further appears from his testimony, and is not denied, that the money was paid upon the distinct agreement that both suits should be dismissed. We think, in view of that fact, the money was correctly applied, and the judgment will therefore be affirmed. RUDKIN, C. J., and CHADWICK and FULLERTON, JJ., concur. MORRIS, J., took no part. HAWKES v. HOFFMAN et ux. (Supreme Court of Washington. Nov. 30, 1909.) 1. APPEAL AND ERROR (§ 1170*)-REVERSALSTATUTES. Where no evidence was admitted that was not admissible under the actual issues, and no pertinent evidence was rejected, the court on appeal on the merits must, as required by Bal BILITIES. A purchaser for value, without notice of a party wall agreement, is an innocent purchaser for value, and takes the property without any burden created by an agreement for the construction of the wall. Cent. Dig. § 53; Dec. Dig. § 9.*] The rule that one who has notice of a fact sufficient to put him on inquiry is deemed to have notice of all facts which reasonable inquiry conceivable fact that could be learned from inwould disclose does not impute notice of every quiry, but it imputes notice only of those facts which are naturally and reasonably connected with the fact known and to which the known fact can be said to furnish a clue. [Ed. Note.-For other cases, see Notice, Cent. Dig. §§ 4-7; Dec. Dig. § 6.*] 7. PARTY WALLS (§ 8*)-RIGHTS AND LIA BILITIES: sires to erect a new wall of more extensive diOne of the owners of a party wall who demensions on the site of the old wall may not compel his co-owner to share the expense with him in the absence of an express contract to that effect. [Ed. Note. For other cases, see Party Walls, Cent. Dig. §§ 24-41; Dec. Dig. § 8.*] 8. PARTY WALLS (§ 5*)-RIGHTS AND LIA BILITIES. Where an existing party wall is destroyed by fire, lapse of time, or otherwise, the easement is at an end, and there is no obligation resting on either party to rebuild in the absence of contract requiring it. Cent. Dig. § 13; Dec. Dig. § 5.*] 9. PARTY WALLS (§ 9*)-BONA FIDE PUR- Knowledge by an intending purchaser that a wall has been erected on the dividing line of |