Opinion Per HADLEY, J. [36 Wash Hochbrunn, 24 Wash. 206, 64 Pac. 165. Such is, no doubt, true if other facts alleged are not inconsistent with these bare averments as to absence of discovery. In the case cited there was a direct and positive averment as to the time of discovery, and it does not appear that there were any other statements in the complaint inconsistent with such averments. Appellant admits in his brief that he is not now entitled to share in the reorganization itself. Notwithstanding the averments of the complaint, the reorganization agreement, which is attached to the complaint as an exhibit, shows that appellant was not excluded from participating in the reorganization. All holders of the second company's stock and bonds were, by the terms of the agreement, placed upon equal footing. By its terms the appellant was privileged to deposit cash according to his holdings, ratably as other holders were premitted to do. Based upon appellant's holdings, it was necessary that he should deposit the aggregate sum of $25,112.50, only one-fourth of which, as we have seen, was required to be deposited at the beginning, the remainder being payable by installments. Having failed to make such deposit, and not having tendered the same, he admits that he is not entitled to share in the reorganization. He nevertheless alleges the facts about reor ganization, and discusses them as forming a basis for the relief which he asks. He reasons that his absence from the country was known, and that the terms of the reorganization were intentionally made such as it was known he could not meet within the time fixed. But the fact remains that the terms of the reorganization did not exclude him. It may have been his misfortune that he was absent from the country at the time. But respondents' counsel urge that some duty rested upon appellant to provide local represen Jan. 1905] tation to guard his interests in so important a matter while he sojourned in a country so remote as Central America. An exhibit attached to the complaint does show that he was represented by an attorney in fact in the signing of the first reorganization agreement, some six months prior to the last one, but it is not made to appear that such representative was acting for him at the date of the last agreement. It must, therefore, be assumed here that he was not locally represented, and that his absence was known to those participating in the reorganization, which facts, together with the effected reorganization, he urges amounted to a fraud upon his rights. Notwithstanding what he urges as a fraud in the reorganization, he does not seek relief directly therefrom. He admits that he has not placed himself in position to ask participation in the reorganiation, but he reasons that he is entitled to an accounting, and to a share in the value of the property which he claims was sacrificed at the mortgage sale, under the first company's foreclosure, as a part of the alleged fraudulent scheme. He urges that the defenses in the foreclosure suit set up by the second company's mortgagee, the trustee for appellant's bonds, were valid defenses, and that, if they had been pressed, they would have resulted in excluding a large amount of property from the lien of the first company's mortgage, to the benefit of the second company's bondholders, including himself. It will be remembered that those defenses were withdrawn by the second company's mortgagee, and the written stipulation for their withdrawal became a matter of record in the foreclosure case in May, 1896. A few days thereafter a decree of foreclosure pro confesso was entered, and this was soon followed by a foreclosure sale of all the property, including what appellant claims should Opinion Per HADLEY, J. [36 Wash. have been excluded from the first mortgage lien. He alleges that he had actual notice of all matters which were of public record. The above matters being all of public record as early as May, 1896, and soon thereafter, he, therefore, then had actual knowledge that the defenses had been abandoned by the second company's mortgagee, that the lien had been decreed against all the property, and that the same had been sold at judicial sale. A part of the property so sold was the same for which appellant by this action seeks an accounting, and in the value of which he seeks to share. The real fact which he alleges as constituting a fraud upon his rights in the property, for the value of which he seeks recovery, consisted of the abandonment of the defenses in the foreclosure suit. Under his theory, that act was a deliberate fraud upon his rights, since it left his property interests unprotected, and allowed them to be wrongfully subjected to the lien of the first company's mortgage. Appellant had actual knowledge thereof more than four years before he began his suit. For more than four years he had actual knowledge that the property, in the value of which he now seeks to share, had been judicially soid as subject to the lien of the first mortgage, and that the purchasers and subsequent holders held it by virtue of such lien and sale. The application of the doctrine of laches to the foregoing facts is much discussed by counsel, but we need not discuss that subject, since we find that the statute of limitations disposes of the case It is true, as we have already seen, appellant alleges that he did not discover the plan of reorganization until a later time, but, as hereinbefore stated, he does not, by this action, seek participation in the reorganization. He seeks an accounting, and, as a result thereof, to share in property, or its value, which he claims was fraudulently permitted to Jan. 1905] be judicially sold to the prejudice of his rights, and of which he had actual knowledge for more than four years before bringing his suit. Having knowledge that the property had thus passed into the hands of holders who depended upon the validity and priority of the lien, as decreed by the United States court, he cannot be permitted to disturb property rights and the relations of property holders after the period of limitation has run from the time these matters became of public record. It matters not that he may have hoped to be let into some reorganization scheme. He knew, nevertheless, that his alleged property interests had, in legal form at least, been swept away by the judicial sale, and that, if he would protect the same, the duty was upon him to do so within the period of the statute of limitations. His complaint, upon its face, shows that the facts constituting the real fraud, as alleged, were discovered at a time beyond the statutory period of limitations. Such being true, the complaint is not otherwise made good by the bare averment of a time of discovery. Under Stearns v. Hochbrunn, supra, the bare allegation as to time of discovery, standing alone, may be sufficient as against demurrer, but the bar of the statute cannot thereby be evaded when other facts are averred in detail, which are inconsistent therewith, and which disclose an actual discovery beyond the limitation period. The judgment is affirmed. MOUNT, C. J., and FULLERTON and DUNBAR, JJ., con cur. [No. 4787. Decided January 30, 1905.] THE STATE OF WASHINGTON, on the Relation of C. A. Cook, Appellant, v. JOHN B. REED, as Treasurer of Pierce County, Respondent.1 APPEAL AND ERROR-STATEMENT OF FACTS-NECESSITY-REVIEW OF FINDINGS-RECORDS - REDEMPTION FROM TAX SALES INSPECTION. Upon application for a writ of mandate to compel the county treasurer to allow an inspection of certain records in his office, being copies of certificates of redemption from tax sales, a finding of the trial court that the same were not public records required by law to be kept, cannot be reversed on appeal where the evidence on which the finding was based is not brought up by a statement of facts. KEPT AT PUBLIC RECORDS - COUNTY TREASURER - INSPECTION EXPENSE. The fact that certain records of the county treasurer were kept at public expense does not establish that they are public records, open to inspection by the public. A general de SAME DEMAND FOR INSPECTION-MANDAMUS. mand by a private citizen for an inspection of "any and all books of public records" desired by him, cannot be made the basis for a writ of mandate to the county treasurer, especially where the treasurer is willing to furnish specific information called for, free of charge. Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 24, 1903, upon findings in favor of the defendant, after a hearing on the merits before the court, denying an application for a writ of mandate. Affirmed. Jesse Thomas, for appellant, cited: State ex rel. Colscot v. King, 154 Ind. 621, 57 N. E. 535; Burton v. Tuite, 78 Mich. 363, 44 N. W. 282. F. Campbell, Charles O. Bates and Walter M. Harvey, for respondent. Reported in 79 Pac. 306. |