the usual manner, and both of them then | vinces us that the trial court was fully warsubscribed their names to all of the other ranted in concluding, as it did in effect, that papers. Acknowledgment of the execution of respondent at the time of acquiring both the the mortgage as having been made on Octo- De Wees notes and the new notes had no ber 1, 1907, by both her and her husband is notice whatever of the usurious nature of certified to in usual form by indorsement the agreement for interest upon the loan thereon by a notary public. It is clear from they were given to evidence; nor of any oththe evidence that Mrs. Erickson then intend- er possible defense available to Erickson and ed to sign this mortgage, and that she wife as against Mrs. De Wees or Gray. In thought she had signed it, as she had signed reaching this conclusion we assume that in the other papers in connection with the giv- this case the burden of proving good faith ing of the new notes, and that she then ac- and want of notice of infirmities in the notes, tually acknowledged the execution of the was shifted to respondent, under our holdmortgage. It is equally clear that the no- ings in Keene v. Behan, 40 Wash, 505, 82 tary and others present thought she had then Pac. 884, Ireland v. Scharpenberg, 54 Wash. subscribed her name to the mortgage. This 558, 103 Pac. 801, and other cases. Neither omission was not discovered until some have we overlooked the fact that respondmonths later. Soon after October 1st, these ent's proof upon this question consists alnew notes and mortgages were assigned to most wholly of the testimony of witnesses respondent by Gray, and the De Wees notes who were interested in respondent's favor. and mortgages were thereupon surrendered The trial judge saw and heard these witand canceled. The evidence tends to show nesses testify, and while he may not have that the amount due on the De Wees notes been required as a matter of law to find in was approximately the same as the amount respondent's favor upon this evidence alone, of the new notes at the time of the substi- under the decisions last cited, yet he was tution. On October 18, 1907, the new mort- privileged to so find, and under all the cirgage on the land was duly recorded in the cumstances shown we think he was fully auditor's office of Mason county. On De- warranted in so doing. cember 4, 1907, appellant Helgesen recovered a judgment against Erickson and wife in the superior court of King county upon a community debt owing to him by them. On December 7, 1907, a transcript of this judgment was duly filed in the office of the clerk of the superior court for Mason county, so that it then became a lien upon the land of Erickson and wife in that county under section 445, Rem. & Bal. Code. This judgment, and an execution sale thereunder by the sheriff of Mason county, is the basis of appellant Helgesen's title to the land. Thereafter it was discovered that Mrs. Erickson had not subscribed her name to the new mortgage upon the land. She was advised of that fact, and asked to subscribe her name thereto, which she did in the presence of the same notary who had taken her acknowledgment thereto on October 1st. We think the evidence shows that she then signed it of her own free will, and that she then stated in substance that she thought she had signed it at the time of her acknowledgment on October 1st. This mortgage was again recorded on March 25, 1908, in the auditor's office of Mason county, but without any additional certificate of acknowledgment.

[2] Touching the question of respondent acquiring the notes for value it is insisted that they were taken as collateral security for a pre-existing debt, and hence are subject to any defense which could have been successfully urged against the original holder. Assuming that they were taken to secure a pre-existing debt-which, however, may be well doubted as a matter of law in view of the substitutions made-we think they may be considered as being acquired by respondent for value. 7 Cyc. 932; Peters v. Gay, 9 Wash. 383, 37 Pac. 325. The case of McDonald & Co. v. Johns, 114 Pac. 175, it may be argued, militates against this view. That case only involved the question of priority between two mortgages given to secure preexisting debts due different creditors. This case involves rights of an assignee of negotiable notes with the mortgage securing them, as collateral security to a pre-existing debt, as against the lien of a subsequently rendered judgment upon the land mortgaged. That decision does not hold that the taking of negotiable paper under such circumstances is not in good faith and for value. We will presently notice how the mortgage is freed from infirmities as well as the notes by the transfer to respondent.

[1] We will first notice the contention of counsel for appellants, that respondent did Since the contracting for a greater rate of not acquire the notes in good faith. It is un- interest than is allowed by law does not rendisputed that respondent acquired all of der the notes void under section 6255, Rem. these notes as well as all of the De Wees & Bal. Code, it seems clear that the defense notes long before maturity. Whether or not of usury is not available to the maker respondent acquired them in good faith in- against a holder acquiring the notes in good volves only questions of fact touching the no- faith for value before maturity. This is one tice it had of the usurious interest charged of the infirmities curable by such a transfer. and agreed to be paid upon the debt due 29 Am. & Eng. Ency. of Law, 521; 1 Daniel from Erickson to Mrs. De Wees or Gray. A on Negotiable Instruments (5th Ed.) 197; careful reading of all of the evidence con- Rem. & Bal. Code, § 3443.

spondent, and Gray then requested of respond- | ing debts the respective dates of their creaent, and was permitted by it, to write over tion determines their respective priority. his indorsement the words "without recourse"; it being understood that such indorsement was only for the purpose of relieving Gray of personal liability by reason of such indorsement in the event the sale was consummated. The notes were thereupon sent to a Tacoma bank for the purpose of completing the sale, but it was not completed, and the notes were returned to respondent. We think, under these cireumstances, that this addition to the indorse ment of Gray did not lessen the rights of respondent as to equitable defenses available to Erickson and wife against the notes.

[6] It is insisted that the authority of Gray to transfer the original De Wees notes to respondent by indorsing her name thereon as her agent is not shown. Gray held a power of attorney from Mrs. De Wees which apparently gave him quite broad powers, though it may be doubted as to whether or not, standing alone, it was sufficient to authorize the transfer of these notes in this manner, but in view of the fact that Gray had made the loan, received the notes and had possession thereof as agent for Mrs. De Wees, and in view of the fact that he was to some extent interested in the notes as owner and his general course of dealing as the representative of Mrs. De Wees we think for the purpose of this case his authority was sufficiently made to appear. It may be well doubted that this question has any relevancy to the matter here involved since there is nothing to indicate that any apparent uncertainty as to Gray's power to make this indorsement would suggest to respondent that the notes were usurious.

We have proceeded so far upon the assumption that the mortgage was in law executed by Mrs. Erickson as well as by her husband, notwithstanding she did not actually subscribe her name thereto. Let us now inquire as to the correctness of that assumption. We have seen that on October 1, 1907, the mortgage was complete in every respect save as to the subscription of Mrs. Erickson's name thereto; that her name then appeared in the body of the mortgage as grantor with that of her husband; that she actually acknowledged its signing and execution as though she had actually subscribed it; that she believed she had actually subscribed it with her own hand, and that the notary certified to her acknowledgment in usual and proper form. This is not a question of some one signing her name to a mortgage for her at her request, for it is plain from the evidence that she made no request of that nature. Indeed, it may well be doubted that a voluntary conveyance or incumbrance of land can be lawfully signed by some one other than the grantor so as to bind the grantor by the mere signing alone, as our general statutes of frauds indicate may be done in making of contracts other than those affecting title to real property (section 5289, Rem. & Bal. Code); for section 8746, Rem. & Bal. Code, provides that deeds, and this of course means mortgages, shall be "signed by the party bound thereby."

[8] There is here presented the question of adopting the mortgage as a whole including the name in the body thereof as her signature thereto by Mrs. Erickson. Now the requisites for the execution of a deed or mortgage under our statute are: (1) That it be in writing; (2) that it be signed (not subscribed) by the party bound thereby : and (3) that it be acknowledged by the party making it before some person authorized to take acknowledgments. In this case there is no question as to the deed being in writing or as to it being acknowledged, but only as to it being signed. This court has held in harmony with the general rule that: "It is a well-established rule of law that a contract is signed, within the meaning of the statute, whether the name of the party to be charged appears at the bottom, top, middle, or side of the paper." Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 651, 32 Pac. 737, 740, 33 Pac. 1055; Anderson v. Wallace Mfg. Co., 30 Wash. 147, 70 Pac. 247.

[7] The question of the priority between the lien of the mortgage and the lien of the judgment upon which appellant Helgesen's title rests seems to be clearly settled in respondent's favor by the decisions of this court. The notes and mortgage were given October 1st, and assigned to respondent about November 4th; while the judgment in favor of Helgesen was not rendered until December 4th. Mann v. Young, 1 Wash. T. 454; Dawson v. McCarty, 21 Wash. 314, 57 Pac. 816, 75 Am. St. Rep. 841; Hacker v. White, 22 Wash. 415, 60 Pac. 1114, 79 Am. St. Rep. 945; Lee v. Wrixon, 37 Wash. 47, 79 Pac. 489; Hicks v. National Surety Co., 50 Wash. 16, 96 Pac. 515, 126 Am. St. Rep. 883; McDonald & Co. v. Johns, 114 Pac. 175. Assuming for the sake of argument that the mortgage was given to secure a pre-existing debt, and was also assigned with the notes as collateral security for another pre- It follows that the mere fact that her existing debt, the case last cited shows that name was not written at the foot of the the mortgage is nevertheless superior to the mortgage in the usual place for signing does lien of the judgment upon which Helgesen's not conclusively show a want of lawful title rests, which judgment was rendered signature thereto. Had she written her after the execution and assigning of the name in the body of the mortgage in her mortgage and notes. Where two liens at own hand, it clearly would have been a the date of their creation secure pre-exist- good signing of the mortgage by her. The

question then is, Was her acknowledgment | is even yet in most states the only purpose of the execution of the mortgage after it of an acknowledgment. We are of the opinwas fully prepared with her name written ion that this mortgage was executed by therein as grantor equivalent in law to a Mrs. Erickson on October 1, 1907, notwithsigning of it by her? In the case of Newton standing she did not then actually subscribe v. Emerson, 66 Tex. 142, 18 S. W. 348, the her name at the foot thereof. Supreme Court of Texas had under consideration a situation almost identical with that here involved. There the deed was not subscribed by the grantor, but was duly acknowledged, the grantor's name appearing in the body thereof as grantor. The court said: "Under this state of facts it is unimportant that the entire instrument, including the name of Charles G. Newton, was written by another at his request, nor is it important whether he was present when it was written; for it is well settled that by his acknowledgment before the officer he adopted, and made his own, every word, including his own name, then upon the instrument. By that act and the delivery of the instrument he declared and made his name or sign, then on the paper, the evidence of his intention in reference to giving it validity and effect, as fully as though the name had been written by himself. Bartlett v. Drake, 100 Mass. 175 [97 Am. Dec. 92, 1 Am. Rep. 101]; Clough v. Clough, 73 Me. 488 [40 Am. Rep. 386]; Nye v. Lowry, 82 Ind. 320; Willis v. Lewis, 28 Tex. 185; Adams v. Field, 21 Vt. 267; Armstrong v. Stovall, 26 Miss. 282; Pike v. Bacon, 21 Me. 287 [38 Am. Dec. 259]; Bird v. Decker, 64 Me. 552. It is to be regarded, then, as though entirely written by himself, for he declared that, as an entirety, it was his act; that he had signed and executed it."

The only difference we see between that case and this is the fact that the deed there appears to have been written at the request of the grantor, but it is apparent that that court regarded that fact as of no consequence, but rested the validity of the deed upon the ground of adoption of it by the grantor as his act. Loyd v. Oates, 143 Ala. 231, 38 South. 1022, 111 Am. St. Rep. 39; Harwell v. Zimmerman, 157 Ala. 473, 47 South. 722; Chivington v. Colorado Springs Co., 9 Colo. 597, 14 Pac. 213; Gribben v. Clement, 141 Iowa, 144, 119 N. W. 596, 133 Am. St. Rep. 157; Currier v. Clark, 145 Iowa, 613, 124 N. W. 622; Northwestern, etc., Co. v. Jonasen, 11 S. D. 566, 79 N. W. 840; 9 Am. & Eng. Ency. of Law (2d Ed.) 145; 1 Cyc. 540.

[9] This view of the law we think is particularly applicable to the execution of a deed or mortgage in the state of Washington, in view of the fact that under section 8746, Rem. & Bal. Code, the acknowledgment of the execution of a deed or mortgage seems to be as much a necessary part of its execution as the signing. Under this section it is apparent that the acknowledgment has to do with the actual execution of the instrument rather than only for the purpose of

Counsel for appellants place some reliance upon the fact that all of the written portion of this mortgage, which includes Mrs. Erickson's name as one of the grantors (by the written portion we mean that portion other than the printed form used), was prepared in the handwriting of Gray, the mortgagee; and it is insisted that therefore he could in no event be the agent of Mrs. Erickson for the purpose of writing her name in the mortgage, and thus in effect signing it for her. In support of this contention our attention is called to Wingate v. Herschauer, 42 Iowa, 506, Carlisle, Jones & Co. v. Campbell, 76 Ala. 247, Tull v. David, 45 Mo. 444, 100 Am. Dec. 385, and other authorlties supporting the view that a grantee cannot become the agent of the grantor for the purpose of signing the latter's name to a conveyance. These authorities seem to be applicable to and support that view, but we have seen that this is not a question of some one writing Mrs. Erickson's name in the mortgage as her signature by virtue of her previous request or authorization, but it is a question of her adoption of the entire instrument as written, including her name written therein as grantor after the instrument is complete in form. In such a case we think the authorities we have cited show that it is utterly immaterial by what means or by whom the instrument was physically brought into existence. By her adoption of it, to paraphrase the language in Newton v. Emerson above cited, "she made as her own every word, including her name as grantor, then in the mortgage."

We find no error in the record, and conclude that the judgment must be affirmed. It is so ordered.

DUNBAR, C. J., and MOUNT, J., concur.

GOSE, J. (dissenting). It appears from the majority opinion that Mrs. Erickson intended to sign the mortgage, and believed that she had done so until some time after the judgment lien attached, when she actually signed it. She did not intend to adopt her name written by another as her signature. This is shown, I think, by the entire record. Her failure to sign the mortgage was due entirely to an inadvertence and oversight. An intention to sign an instrumont cannot be held equivalent to an actual signing of the instrument. If she intended to sign her own name to the mortgage and failed to do so by inadvertence, it would seem conclusive that she did not intend to adopt her name written by another as her signature. I think the judgment lien should

that extent I dissent from the view expressed by the majority.

FULLERTON, J., concurs with GOSE. J.

(64 Wash. 238)

VEYSEY BROS. v. E. K. BISHOP MILL

There can be no way of necessity over the lands of a stranger, such ways arising out of estoppel, as where a grantor sells land which would be wholly inaccessible but for the way. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*] APPEAL AND ERROR (§ 1011*)-REVIEW-VER- 2. EASEMENTS (§ 10*) — CREATION DICT AND FINDINGS-CONCLUSIVENESS. PRESCRIPTION.

CO. 1911.)

(Supreme Court of Washington. July 22,

The finding of a contested fact will be followed on appeal unless against the clear preponderance of the testimony.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

En Banc. Appeal from Superior Court, Chehalis County; Ben Shieks, Judge.

Action by Veysey Bros. against the E. K. Bishop Mill Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

O. M. Nelson, for appellants. W. H. Abel, for respondent.

tion.

--

-WAYS

A private way may be acquired by prescrip

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 27-33; Dec. Dig. § 10.*}

3. EASEMENTS (§ 8*)-CREATION-WAYS-PRE

SCRIPTION.

Where the owner of lands allowed his neighbors to pass over them, and after fencing left gates and bars for them to use, and there was nothing to show that the use was hostile or adverse, it appearing that the way had not been fixed or defined, and was used only as a way of convenience, no easement arises to use the way, though it has been used more than the period of the statute of limitations; for a use, permissive in its origin, will continue to be of the same nature, and no adverse user can arise unti a distinct and hostile assertion of right against the owner is brought home to him. [Ed. Note.-For other cases, see Easements,

PER CURIAM. The only question involved in this case is one of fact. Parker & Simmons, thereafter Simmons, engaged to cut a certain quantity of shingle bolts, and Cent. Dig. §§ 23, 24, 33; Dec. Dig. § 8.*]

4. EASEMENTS (§ 10*)-PRESCRIPTION-ACQUISITION OF RIGHTS OF WAY THROUGH UNINCLOSED LANDS.

In general, a private easement for a right lands, unless the use is such as to convey to the of way cannot be acquired over uninclosed owner reasonable notice that a claim is made in hostility to his title.

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 27-33; Dec. Dig. § 10.*] 5. EASEMENTS (§ 8*)-PRESCRIPTION-PERMISSIVE USE-INTENTION.

deliver them to respondent at its mill in Montesano, at the agreed price of $3 per cord. An arrangement was made whereby credit was to be extended by appellant to Parker & Simmons. It is contended by appellant that respondent obligated itself to pay the board and commissary bill of all of the men, an account of which was from time to time rendered by appellant. The original obligation assumed by respondent is containWhere the owner of uninclosed lands, over ed in a letter to Parker & Simmons, and is as which his neighbors had been in the habit of follows: "We will advance you on the above passing, left gates and bars in a fence which price one dollar per cord as the bolts are he erected, that act, instead of indicating a sursplit on the land, and will furthermore ad-render or acquiescence in the right of persons to pass, evidences a different intention. vance as part of above price provisions suffi[Ed. Note.-For other cases, see Easements, cient for yourselves and an extra man for a Cent. Dig. §§ 23, 24, 33; Dec. Dig. § 8.*] term of two or three months while you are engaged in cleaning out the creek and getting the proposition in shape to deliever bolts

from it."

Appellant says that thereafter respondent agreed to stand good for all supplies for all the men employed, the cost of which was to be deducted from the labor checks; this without reference to the amount due on the contract. There is a square issue of fact, affirmed by one and denied by the other. In such cases we are inclined to follow the judgment of the trial judge, unless it appears to be against the clear preponderance of the testimony. Barring some inconsequential items not now necessary to be discussed, the contentions of respondent were sustained below, and for the reasons assigned are now sustained.

Judgment affirmed.

Department 2. Appeal from Superior Court, Stevens County; John A. Kellogg, Judge.

Action by C. Schulenbarger against A. H. Johnstone and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

Jesseph & Grinstead, for appellant. Howard W. Stull and H. Wade Bailey, for respondents.

CHADWICK, J. Appellant brought this action, seeking to restrain respondents from interfering with his use of a roadway now and for some time past used by appellant and his grantors. The roadway to which appellant asserts the right of user runs from his land across the lands of respondents, through bars and gates, and connects with the public road on the south line of respondents' lands. Although settled upon about

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes.