6. DESCENT AND DISTRIBUTION ($ 91*)-AcTION BY HEIR-RELIEF AWARDED.

A widow, claiming that certain property standing in the name of decedent's son was partnership property of the decedent and his son, cannot maintain a suit to have her interest therein as heir adjudged, but only to determine that the interest of the decedent in the partnership is property of his estate to be administered in the usual manner.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 359-381; Dec. Dig. § 91.*]

7. ATTORNEY AND CLIENT (§ 174*)-LIEN FOR

ATTORNEY'S FEES.

In a suit to have property standing in the name of decedent's son adjudged to be partnership property, the court cannot create a lien in favor of the plaintiff's attorney on the prop

erty.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 378-380, 382, 385; Dec. Dig. § 174.*]

Department 2. Appeal from Circuit Court, Tillamook County; J. U. Campbell, Judge. Suit by Otelia Hadley against C. E. Hadley and others. From a decree for defendants, plaintiff appeals. Reversed and remanded.

The

One C. B. Hadley, a resident of Tillamook county, Or., died December 7, 1911. plaintiff is his widow, and she brings this suit, alleging that C. B. Hadley in his lifetime was a partner with C. E. Hadley, his son; that they did business together for many years under the partnership name of C. E. Hadley, and at the time of the death of C. B. Hadley there was a large amount of partnership property in the name and possession of C. E. Hadley-namely, real estate of the probable value of $75,000, and personal property of the value of $180,000; that C. W. Talmage was appointed administrator of the estate of C. B. Hadley, but that he refuses to inventory the property of the said partnership estate as such. Plaintiff seeks to have determined the question of the existence of the partnership and the property belonging thereto, her dower in the real estate as well as in the personal property, and to be adjudged the owner thereof; also to have determined the fees to be allowed her attorney for bringing this suit. She asks that C. E. Hadley be compelled to account to the estate of C. B. Hadley for the said partnership property; that C. B. Hadley's estate be declared the owner of an undivided half interest in said real estate described in the complaint and in the personal property in the hands of C. E. Hadley; and that C. W. Talmage be appointed receiver of the said property pending the litigation. To this complaint the defendant C. E. Hadley makes answer, denying the existence of said partnership, and alleging that he is the owner personally of all of said property referred to in the complaint. After the said case was at issue and ready for trial, plaintiff and defendant C. E. Hadley made a pretended settlement of plaintiff's interest in said partnership property for the

consideration of $7,000 paid to her; and plaintiff having neglected to have said suit dismissed, on March 22, 1913, C. E. Hadley filed a supplemental answer setting up the said settlement and asking for the dismissal of said suit. Plaintiff filed a reply to said supplemental answer alleging fraud in the said settlement, and asking that the settlement be declared void; that plaintiff be allowed to retain said $7,000 paid thereon; and that it be deemed an equitable advance to plaintiff of the amount that may be found due upon her share of said estate upon final adjudication thereof. Thereupon testimony was taken upon the issues tendered by the complaint, answer, and supplemental answer and reply. and reply. At the close of plaintiff's testimony defendants moved for a dismissal of said suit for the reason that plaintiff has not established the allegations of the complaint entitling her to any relief, which motion was sustained and the suit dismissed. Plaintiff appeals to this court.

Oak Nolan and B. J. Howland, both of Portland, for appellant. R. R. Duniway, of Portland (S. S. Johnson, of Tillamook, on the brief), for respondents C. E. & D. J. Hadley and Maud Sharp. George G. Bingham, of Salem, on the brief, for respondent C. W. Talmage.

EAKIN, J. (after stating the facts as above). [1] In the pleadings, as well as at the trial, plaintiff seeks to have her dower in the partnership property declared and admeasured to her, and that she have judgment for her half interest in her husband's interest in said partnership property. The main purpose of this suit seems to be to recover the widow's share of the estate's interest in said partnership. The title to the real estate in said partnership is in C. E. Hadley, and therefore the interest of the real estate is an equitable interest; and a widow has no dower in an equitable estate in lands. Section 7286, L. O. L.; Burton v. Moffitt, 3 Or. 29; Neal v. Davis, 53 Or. 423, 99 Pac. 69, 101 Pac. 212.

[2] And distribution of personal property of the estate must come through the administrator. In Casto v. Murray, 47 Or. 57, 81 Pac. 388, 883, it is said that upon the death of any person his personal property passes by operation of law to the personal representatives, from whom only the title thereto can be derived; and in Hillman v. Young, 64 Or. 73, 127 Pac. 793, 129 Pac. 124, it is said that the personal property of a deceased person goes by operation of law to the administrator and must be distributed by him.

[3] It was the duty of the general administrator, if he had reason to believe there was a partnership, to have inventoried it as such, and, if necessary, bring suit for the recovery thereof from the person in possession, if there was a reasonable ground to believe a

(72 Or. 573)

LAPP v. CITY OF MARSHFIELD et al. (Supreme Court of Oregon. Oct. 20, 1914.)

abuts upon Cedar street, and that he is not liable for any assessment for the improvement thereof; that the description of the separate

tracts described in said warrant was arbitra

LIC IMPROVEMENTS-ASSESSMENTS.

Under a city charter provision giving the council power to determine what shall constitute a lot or part thereof, where it does not appear that the owner of a tract is injured by laying it off into smaller rectangular tracts for assessment purposes, an assessment in that manner is at the most irregular, and not void in equity.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1064, 1069; Dec. Dig. § 444.*]

2. MUNICIPAL CORPORATIONS (§ 430*)-PUBLIC IMPROVEMENTS-ASSESSMENTS-"ADJACENT PROPERTY."

A city charter authorizing assessments for a public improvement upon "adjacent property" includes lands which, while not immediately abutting on the improvement, lie so near as to be benefited by it.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1040; Dec. Dig. 8 430.*

For other definitions, see Words and Phrases, First and Second Series, Adjacent.] 3. MUNICIPAL CORPORATIONS (§ 456*)-PUB

LIC IMPROVEMENTS-ASSESSMENTS.

In a suit to enjoin the collection of an assessment for public improvements, where plaintiff's land is included with other land and he introduced in evidence a map showing what he introduced in evidence a map showing what portion of the land assessed belongs to him, a decree will be entered for the release of his land from the lien of the assessment upon payment of his portion of the assessment.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1094-1099; Dec. Dig. 456.*]

Department 2. Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Suit by Joseph L. Lapp against the City of Marshfield and another. From a decree for defendants, plaintiff appeals. Modified.

This is a suit to enjoin the collection of certain assessments for the improvement of Cedar street in the city of Marshfield. The complaint alleges the due and regular passage by the city council of a resolution declaring the intention of the city to improve a portion of Cedar street from the north line of

Third street to a point 12 feet westerly of the center of Front street, and that thereafter the recorder gave notice of the intention of the city to make said improvement. The complaint then recites the taking of all the other steps necessary to make a valid assessment in form, from which it appears that, except for the alleged defects hereinafter mentioned, the proceedings leading up to the attempted sale of the property claimed by plaintiff are in all respects regular. The complaint alleges the issuance of an alias warrant requiring the marshal to sell certain tracts of land particularly described in the warrant and in the complaint. and further alleges that plaintiff is the owner of a tract of land which is described by metes and bounds; that no part of such land fronts or

rily used and employed in all the proceedings of the common council leading up to said improvement without reference to or regard being had for the ownership of lands embraced within said description; that within said description of the said several tracts in said warrant, and in the ordinance providing for the improvement, is a portion of the land owned by the plaintiff not fronting and is included in said assessment lands not abutting upon Cedar street, and that there owned by plaintiff; that plaintiff has repeatedly offered and has at all times been ready, able, and willing to pay to defendant any and all amounts properly chargeable to his and all amounts properly chargeable to his property, but that defendants have failed and refused, and still fail and refuse, to segregate said assesssment so that plaintiff may pay the amount properly chargeable to his property, and that it is impossible for plaintiff the amount properly chargeable to his propto so segregate the same, and not knowing erty, and being unable to ascertain the amount thereof, plaintiff has been unable to pay said assessment or to tender into court the amount thereof. The answer denied that plaintiff was the owner of the property described in the complaint, or any part thereof, for the purpose of the proposed improvement and alleged a regular and orderly assessment and a willingness and offer on the part of defendants to allow plaintiff to designate such parcels of said tract as he claimed to own and to pay his portion of the assessment thereon, which plaintiff had neglected and refused to do. The reply denied the new matter in the answer. After the plaintiff had concluded his testimony defendants moved for a dismissal of the suit on the ground that plaintiff had failed to show any cause of action, or any title in himself, to any land affected by the assessment, which motion was granted, and plaintiff appeals.

of San Francisco, Cal., on the brief), for apJ. M. Upton, of Marshfield (E. L. C. Farrin, of San Francisco, Cal., on the brief), for appellant. John D. Goss, of Marshfield, for respondents.

MCBRIDE, C. J. (after stating the facts as above). While the testimony as to the location of the tract purchased by plaintiff from the state is not so clear and satisfactory as could be desired, we are of the opinion that the testimony of the witness Cathcart tends to place it where it is indicated upon the map offered in evidence. Although the deed from the state is irregular and perhaps not so definite as to the boundaries of the tract conveyed as is usually the case, nevertheless it contains those elements of description by which a surveyor going upon the ground

would be able to find the property. For the purposes of this case, and in the absence of any contrary testimony, we may fairly assume that plaintiff's boundaries are where they are indicated on the map.

[1] The laying off of the tract into smaller rectangular tracts would seem to be authorized by section 71 of the charter, which provides, among other things:

"The council shall have power to determine what shall constitute a lot or part thereof as the terms are used in this act."

In any event it does not appear that plaintiff has been in any way injured by this method of assessment, which at the most would be only irregular and not void in equity.

[2] Neither is there any validity to plaintiff's contention that his land does not abut on the street to be improved, and is therefore immune from assessment. The city charter of Marshfield provides that assessments of this character may be made upon adjacent property. This includes lands which, while not immediately abutting on the improvement, lie so near thereto as to be benefited by it. Page & Jones on Taxation by Assessment, § 622; Kirkpatrick v. City of Dallas, 58 Or. 511, 115 Pac. 424; Town of Woodruff Place v. Raschig, 147 Ind. 517, 46 N. E. 990; Hennessy v. Douglas County, 99 Wis. 129, 74 N. W. 983. The evidence indicates that the land claimed by plaintiff will be benefited by the improvement.

[3] The most difficult question presented is the inclusion of plaintiff's land with land owned by others in the same assessment. Some authorities seem to hold such an as

sessment absolutely void, even in equity. McQuillin, Municipal Corporations, § 2082; Hunt v. State, etc., 26 Ind. App. 518, 58 N. E. 557. Other authorities seem to hold that an assessment of that character, while irregular, is not void, but voidable, and that the defect may be waived by failure to object at the proper time and place. McQuillin, Municipal Corporations, supra; Thomson v. People, 184 Ill. 17, 56 N. E. 383; Becker v. Baltimore & Ohio R., 17 Ind. App. 324, 46 N. E. 685. On principle the rule that such assessment is an irregularity, merely rendering the assessment voidable, would seem most equitable under such circumstances as appear in this case. That every step necessary to make a valid improvement was complied with is not questioned. The council had jurisdiction to make the assessment on all the property included in the assessment district. It exercised that jurisdiction erroneously by assessing the lands of two proprietors jointly instead of severally. Plaintiff made no objection to the assessment, and did not call attention to the error in time for the authorities to make a new assessment, but waited until the improvement was completed, and then and now says that he is unable to segregate the amount justly due by him from

that of other owners, or from land not owned by anybody, when it is apparent on the face of the map introduced by him that any competent survey or or mathematician can compute the amount in an hour. He attempts to excuse his failure to make a tender on the ground that he cannot compute the quantity of land included in the improvement, expresses a desire and ability to pay what is due, and in the same breath says he owes nothing. The case of Welch v. Clatsop County, 24 Or. 452, 33 Pac. 934, lays down a salutary rule to be applied to cases of this kind by requiring the party claiming relief against an illegal or irregular tax to tender what is fairly and equitably due before equity will

relieve him.

"Nothing," observes Lord Camden, "can call a court of equity into activity but conscience, good faith, and reasonable diligence. When these are wanting the court is passive and does nothing."

the plaintiff to pay assessments upon propHowever, as it seems inequitable to require erty he does not own in order to preserve the property which he claims to own, taxing the costs of this appeal against him will be a sufficient penalty for his lack of diligence in this proceeding. We will make the computations which he ought to have made and direct that upon the payment of that sum the property claimed by him and indicated on the map in evidence be released from the lien of the assessment, leaving the balance subject to the assessment lien for the collection of which an alias warrant may issue to the marshal. This will preserve the rights of the city and at the same time avoid doing any possible injustice to the plaintiff. computation of the amount due upon the tracts claimed by plaintiff shows the amount to be $591.

A

It is therefore ordered that if the plaintiff shall, within 30 days after the entry of this judgment, pay to the defendant the sum of $591, a decree shall be entered enjoining defendant from selling the property claimed by him in his complaint; but in default of such payment the suit shall be dismissed. In either event the defendant will recover costs and disbursements.

EAKIN, BEAN, and McNARY, JJ., concur.

(72 Or. 580) CLACKAMAS SOUTHERN RY. CO. v. VICK.

(Supreme Court of Oregon. Oct. 20, 1914.) TRIAL (§ 388*)-TRIAL BY COURT-NECESSITY FOR FINDINGS. Under Const. art. 7, § 3, as amended Noby jury where the value in controversy exceeds vember 8, 1910, guaranteeing the right of trial $20, and L. O. L. § 157, authorizing waiver of trial by jury by consent of the parties and assent of the trial court, section 158, requiring the decision to be given in writing, stating the facts found and conclusions of law separately, and the findings and judgment to be entered in