erty by the defendants to one I. C. Richards, to secure a note of even date, executed by them to Richards, for the sum of $375, and to indemnify and save him harmless from the payment of certain other notes, amounting to $950, signed by him for their accommodation; the engine, however, being subject to a prior mortgage to secure the payment of about $800. Subsequently, Richards sold and indorsed the $375 note to the plaintiff. During the summer of 1894, the defendants removed the property sued for into this state; and in November, 1894, plaintiff took possession of it, in Sherman county, and, after advertising it as required by the terms of the mortgage and the laws of this state, in pursuance of the notice, offered it for sale at public auction on the 5th day of December, 1894; and he, being the highest and best bidder, became the purchaser, for $50, and thereby foreclosed the mortgage as to said property. That he is the owner and entitled to the possession of said property. And that on or about June 28, 1895, defendants wrongfully took, and now detain, the same from plaintiff. The answer, in effect, denies all the material allegations of the complaint except the execution of the note and mortgage. It affirmatively alleges an attempt on the part of the plaintiff to sell said property while in the possession of defendants, at which attempted sale he assumed to be the purchaser, and that, by reason thereof, the sale is void; that on or about June 25, 1895, plaintiff forcibly took possession of the property; and that, about four days thereafter, the defendants, finding it abandoned, retook it, and are the rightful owners, and entitled to the possession. The defendants set up two further and separate defenses. The first is that, prior to the commencement of the action, they paid to Richards the full amount of said $375 note, and discharged the indebtedness of $950, for the payment of which he was surety, and that plaintiff took the note, with knowledge of such payment and discharge. The second is, in effect, a plea of former adjudication touching the status of the mortgage set up in the complaint, and the property in question, as affected by such mortgage by the superior court of the state of Washington for Klickitat county, in a suit therein pending, wherein the defendants herein were plaintiffs, and the plaintiff herein and I. C. Richards were defendants. By said suit it was, in effect, determined and decreed, the court having jurisdiction of the cause and the parties, that the plaintiffs in that suit were the owners of the property; that all the indebtedness which the mortgage had been given to secure had been paid, except $175, and interest, at 10 per cent. per annum from March 17, 1893, due upon the $375 note; that the plaintiff herein was the sole owner of said note; and that he had, by virtue of said mortgage, a lien upon the prop

erty involved in this action, to secure the payment thereof. The suit was commenced June 10, and determined July 8, 1895. Thereafter, on July 10, 1895, the defendants in this action paid to plaintiff the sum of $216.08, the amount due upon said note, with interest, which he received and accepted, and thereupon surrendered the note and canceled said mortgage, and thereby plaintiff released and relinquished all claim upon the property. The reply joins issue upon the first cause of defense in toto, practically admits the alleged adjudication, payment, and cancellation of the mortgage of the second cause, but denies that the effect was a release or relinquishment by plaintiff of all claim upon the property sued for, and alleges that, at the time of the alleged payment and surrender of the note and cancellation of the mortgage, this action had been commenced. The parties gave evidence at the trial tending to support their several contentions. The verdict and judgment being for defendants, plaintiff appeals.

C. J. Bright, for appellant. B. S. Huntington, for respondents.

WOLVERTON, J. (after stating the facts.) The first question made is touching the notice of appeal. It is contended by respondents that it does not specify the errors relied upon with such certainty or particularity as to inform them or the court of the issues to be tried on the appeal. The bill of exceptions consists of what purports to be an extended stenographic report of the trial as it proceeded from first to last, including the instructions to the jury, which is certified and signed by the judge of the court below. To illustrate the assignments of error touching the introduction of evidence, we give the following from the notice of appeal: "Plaintiff specifies the following errors committed at the trial of said cause, to which exceptions were allowed, and upon' which plaintiff relies upon this appeal, to wit: 'Upon cross-examination, defendants' counsel asked said witness [Richards] the following questions, to wit: "I understand you to say, Mr. Richards, that you did not at that time [March 18, 1893], in the presence of defendants and Mr. Dunbar, at Dunbar's office, in Goldendale, say that the note for $375 was in the Dalles as collateral security, and that the $200 would be credited upon it. (Objected to; irrelevant, immaterial, and incompetent, and not proper cross-examination. Overruled.)" "Didn't you receive from defendant in May, 1893, a note for about $180? (Same objection. Same ruling.)" "Didn't you receive such a note at all? (Same objection. Same ruling.)" Defendants offered copy of mortgage from Van Hoy & Johnson to I. C. Richards, with indorsements thereon. (Objected to, as irrelevant, immaterial, and incompetent, and not properly authenticated. Overruled.) Upon

redirect examination of witness [Van Hoy], defendants offered in evidence copy of pleading and decree of superior court of Klickitat county. (Objected to, as immaterial and irrelevant, incompetent, and not properly authenticated. Overruled.)'" Upon turning to the bill of exceptions to determine upon what these assignments of error are based. we find that the first question is nowhere contained therein, the next is followed by the words, "Same objection overruled," and to the third there appears to have been no objection made in any form. Referring back to see what was meant by "Same objection," the first intelligible form is, "Objected to as not proper cross," and this the court sustained. As touching the admission of the copy of the mortgage, the bill of exceptions shows that it was "objected to on the grounds that it is incompetent, irrelevant, and immaterial"; and, as to the copy of pleadings and decree, the record simply shows that they were "admitted over objections of counsel." What the objections were does not appear.

The notice of appeal appears to have been framed without any regard to the proceedings as actually recorded, and the alleged errors do not appear in the record as assigned in the notice. Errors at the trial must be made to appear by the bill of exceptions, unless apparent from the record; otherwise, they cannot be the subject of review in the appellate court. But, apart from this, the bill of exceptions does not present any questions touching the introduction of evidence in form or mannner so as to make them readily available. The statute provides that "no particular form of exceptions shall be required"; but the objection should be stated with so much of the evidence or other matter as is necessary to explain it, and no more. Hill's Ann. Laws Or. § 232. Mr. Elliott, in his Appellate Procedure (section 809), says: "It is not enough to state exceptions in the bill. The facts on which the exceptions are based are quite as important as the exceptions. Where the facts are not stated, there is nothing demanding consideration, for without them neither the character nor the influence of the ruling can be ascertained or determined." See Insurance Co. v. Raddin, 120 U. S. 195, 7 Sup. Ct. 500; Kelly v. Murphy, 70 Cal. 562, 12 Pac. 467. And such is the case under the practice in this state. State v. Clements, 15 Or. 246, 14 Pac. 410. The objections to the bill of exceptions is not so much that the facts are not stated in the record, for it purports to contain all the facts of the trial, but that they are not so grouped and stated with reference to the exception to show the nature and influence of the ruling upon which error is alleged. By reading the testimony of witnesses seriatim, and noting the introduction of exhibits, etc., together with the objections, rulings, and exceptions, the court might be able to predicate a pertinent

assignment of error; but this counsel should do. This court has heretofore, in like instances, declined to thus ascertain for itself the questions sought to be presented (Hamilton v. Gordon, 22 Or. 557, 30 Pac. 495); and we decline to do so in this case so far as the rulings in the introduction of evidence are concerned. However, the errors relied upon in the giving and refusal of instructions to the jury by the court are stated in the bill of exceptions with sufficient clearness as to be definitely understood, and some of these we will examine.

The decree of the superior court of the state of Washington for Klickitat county haying determined the status of the mortgage in question, as it relates to the identical property here claimed, plaintiff cannot now claim ownership by virtue of a foreclosure of the mortgage, and a purchase of the property by him, thus cutting off defendants' equity of redemption; but he was, after the rendition of said decree, entitled to the possession of said property under the mortgage, by its terms, for the purpose of foreclosing the same to satisfy his lien; and the matter so stood at the date of the filing of the complaint herein, July 9, 1895. On the following day, the defendants paid to plaintiff's attorney in Klickitat county the amount of the note, with interest, and secured a cancellation and release of the mortgage. In this state of the record, the plaintiff asked, and the court refused, the following instruction: "If you find that, at the commencement of this action, there was anything due upon said mortgage, even though said sale might have been void for irregularities or want of notice, the plaintiff would still be entitled to the possession of the property, and you would find for the plaintiff." And the court gave, at defendants' instance, over objections, the following instruction: "If you believe from the evidence that after the decree in the superior court of the state of Washington for Klickitat county, in the suit wherein Van Hoy & Johnson were plaintiffs, and Richards and O'Connor were defendants, these defendants, or either of them, paid to plaintiff or his attorney the amount found by said decree to be due upon said note of $375, and was accepted by plaintiff in full payment and discharge of said note and mortgage, then I charge you that said payment was a redemption of said mortgaged property, and your verdict must be for defendants." Other instructions of like nature were given. all over the objections of plaintiff, but these are sufficient to illustrate the question involved. The refusal in the one instance, and giving instruction in the other, was not error. The action was for the recovery of specific property, and the purpose of both these instructions was to take the verdict of the jury touching the property. As we have seen, the plaintiff is wholly dependent upon the mortgage for the establishment of

his right to the possession, and cannot recover under any claims of ownership or title acquired by the alleged foreclosure. The payment of the mortgage debt, and cancellation and release of the mortgage, operated as a complete satisfaction of plaintiff's demand; and, as a consequence, his lien was discharged, and his title and right of possession to the property extinguished. Cobbey, Repl. § 873; Butlar v. Tufts, 13 Me. 306; Shiver v. Johnson, 62 Ala. 37; Dryer v. Lewis, 57 Ala. 554; Askew v. Steiner, 76 Ala. 218, and Marcus v. Robinson, Id. 550. The payment and release, however, took place after the commencement of the action. But this did not preclude the defendants from availing themselves thereof as a defense. At common law, matter of defense arising after issue joined could be interposed by a plea puis darrein continuance, which took the place of all former pleas. Steph. Pl. 64. The facts upon which the defense herein is based arose before issue joined, and the defendants were right in so pleading them in bar of the action. Sadler v. Fisher, 3 Ala. 200; McDougald v. Rutherford, 30 Ala. 253; Dryer v. Lewis, 57 Ala. 554. Under our statute (Hill's Ann. Laws Or. § 107), the parties may be allowed, on motion, to make a supplemental complaint, answer, or reply alleging facts material to the case occurring after the former complaint, answer, or reply. This provision would seem to be a substitute for the old practice of interposing a plea puis darrein continuance; but it does not reach a defense arising before answer, but after the commencement of the action. Under these pleadings, with the introduction of evidence tending to their support, as was the case herein, the instruction last above quoted was proper, because, if payment and release of the mortgage took place as alleged, it operates as an extinguishment of plaintiu's title, and hence he could not recover the property. For the same reason, the instruction asked by plaintiff was improper. He was, perhaps, entitled to costs up to the time of payment and cancellation of the mortgage (Leavitt v. School-District, 78 Me. 574, 7 Atl. 600); but that question does not seem to have been taken at the trial, and is not here for our determination. No error appearing by the record, the judgment of the court below must be affirmed.

the ground of breach of this condition, the court found that an attachment was issued by a creditor of the husband, but that the account was settled, and the attachment dissolved; that, prior to such settlement, the wife claimed the property as her own, and, upon trial of this issue, verdict was rendered in favor of the wife, giving her the property; and that there had been no breach of the condition relative to attachment. Held, that the findings were sufficient to justify a judgment for the mortgagors. 2. The action having been against the busband and wife jointly, a judgment rendered in their favor jointly was proper.

3. On appeal from a judgment of a justice, it is within the discretion of the circuit court to refuse to allow the filing of an amended complaint offered there for the first time.

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Charles L. Watson against William Buckler and Eleanor H. Buckler. There was judgment for defendants, and plaintiff appeals. Affirmed.

W. A. Williams, for appellant. L. A. McNary, for respondents.

WOLVERTON, J. This action was brought to recover possession of a stock of merchandise mortgaged by defendants to plaintiff. It is claimed that defendants have been guilty of a breach of the mortgage conditions, and for that reason plaintiff was, at the commencement of the action, entitled to possession of the stock. The action was first tried in the county court, and, on being appealed to the circuit court, a trial was there had, without the intervention of a jury. By the terms of the mortgage, defendants were to remain in possession; but it was conditioned that, in case they should suffer the property to be attached or levied upon by their creditors, the notes secured thereby were to become at once due and payable, and the mortgagee was thereupon empowered to take possession, and sell the property, to satisfy the mortgage debt. Such was, in effect, the finding

of the court. As touching a breach of this condition, the court further finds as follows: "Sixth. That on the 13th day of January, 1894, an action was commenced by J. M. Arthur & Co. against William Buckler, defendant in the justice's court of North Portland precinct, Multnomah county, state of Oregon, to recover the sum of $40.53,-and an attachment issued in said cause by said court, and placed in the hands of the constable of said precinct for service; and that on the 13th day of January, 1894, said constable proceeded to attach, or attempted to attach, said property, by virtue of said attachment; but the defendants, on or before the 16th day of January, 1894, settled said cause and the amount claimed in said action, and said attachment was dissolved. Seventh. That, prior to said settlement, the defendant Eleanor H. Buckler claimed said property by a demand in writing, on the grounds that it was her property, and not subject to attachment for the debts of her

husband; and thereupon a jury was called, and a trial had, upon which the verdict of the jury was rendered in favor of the said Eleanor H. Buckler giving her said property." "Tenth. There was no breach of any of the conditions of said chattel mortgage on the part of the defendants prior to the commencement of this action, to recover the possession of said property." The conclusions of law are, in effect, that the defendants were entitled to possession of the property, and to judgment for its return, and judgment was rendered accordingly.

The plaintiff contends that the judgment is not supported by the findings of fact; that it is found, in effect, that the creditors of the defendants had attached the property prior to the commencement of the action; that thereby the defendants had suffered a breach of one of the mortgage conditions, by reason whereof plaintiff became and was entitled to possession; and that the conclusions of law are erroneous deductions from the facts found; hence the judgment is without the requisite support. It is clear that, until the mortgagors have suffered a breach of some stipulated condition of the mortgage, they are entitled to the possession of the property covered thereby, as against the mortgagee. Plaintiff's cause of action is dependent upon his right of possession. He must therefore establish the breach, or fail in his purpose. Conceding, without deciding, that an attachment by a creditor of William Buckler would be a breach of such condition of the mortgage, we will consider the effect of the findings. Do they show that the property was attached or levied upon? A meaningless finding of fact, or one so obscurely stated as to render its import dubious and uncertain, should be disregarded, as it establishes nothing from which the law may deduce a result. Figg v. Mayo, 39 Cal. 264, 265. The findings, however, have the effect of a special verdict, which should receive a reasonable construction, and are not to be avoided, unless from doubt of their meaning or from the immateriality of the issue found. Hallock v. City of Portland, 8 Or. 29; 28 Am. & Eng. Enc. Law, 354; Woodward v. Davis, 127 Ind. 173, 26 N. E. 687. Two or more findings may be read together, for the purpose of ascertaining the precise shade of meaning intended. Kimball v. Lohmas, 31 Cal. 157; Dixon v. Duke, 85 Ind. 437. The language of finding 6 is: "Said constable proceeded to attach, or attempted to attach," but the defendants "settled said cause and the amount claimed in said action, and said attachment was dissolved." It must be admitted that, when read alone, there is some uncertainty as to its exact meaning. The seventh finding is easily understood. From this there is, perhaps, an implication that the defendant Eleanor H. Buckler admitted the attachment by making a demand in writing, claiming the property as hers, and hence not subject to

attachment in that cause; but it is possible that the property may not have been attached when she made the demand for it. Finding 10 is more general, and is to the effect that defendants had not suffered a breach of any of the conditions of the mortgage prior to the commencement of the action, and may be said to include the sixth finding. If taken as resulting therefrom, it would bear very much the semblance of a conclusion of law, but the court has stated it as a conclusion of fact. Viewing it as such, it is entirely inconsistent with the idea of an actual attachment. So that, construing the findings as a whole, we must conclude that the intendment of finding 6 is not that there was an actual seizure of the goods, but that while proceeding to attach, that is to say, while making an attempt to attach,-and before the service of the writ had been perfected, the cause was settled, and the attachment proceedings rendered ineffectual. The defendants, by preventing the attachment of the mortgaged property, avoided a breach, and hence the judgment is supported by the findings in this respect.

Error is predicated upon the refusal of the circuit court to permit the plaintiff to file an amended complaint, which was offered there for the first time; but, if otherwise competent, the matter was within the sound discretion of the court below, and is therefore not reviewable here. There was certainly no abuse of discretion.

Another matter complained of is that the judgment, which is for a return of the property, or, in case return thereof cannot be had, then for its value, is in favor of defendants jointly; but it is such as plaintiff ought to have expected if unsuccessful in the action. The instrument upon which the action is based was executed by defendants jointly. They were sued and answered jointly, and the court found that they were, at the date of the commencement of the action, in possession, and lawfully entitled thereto. The judgment was a logical sequence. Myers v. Moulton, 71 Cal. 498, 12 Pac. 505; Bank v. Howard, 52 Mich. 423, 18 N. W. 199.

Other questions were argued, but this disposes of all that properly arise upon the record. Let an order be entered affirming the judgment of the court below.

(29 Or. 289)

WALLOWA NAT. BANK v. RILEY.1 (Supreme Court of Oregon. July 18, 1896.) PUBLIC LANDS-HOMESTEAD ENTRY-EXEMPTIONS.

Under Rev. St. U. S. § 2296, relating to homesteads, and providing that no lands acquired under such section shall become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor, land so

1 Rehearing pending.

acquired is not liable for a debt contracted by the applicant after final proofs are made, and before the issuance of the patent. Mercantile Co. v. Davis (Colo. Sup.) 31 Pac. 495, disapproved. Barnard v. Boller (Cal.) 38 Paç. 728, followed.

but evidence of the same debt. This brings us, then, to the important question in the case. Section 4 of the act of congress of May 20, 1862, granting homesteads on the public lands (section 2296, Rev. St. U. S.),

Creditor's bill by the Wallowa National Bank against Levi W. Riley, Josie E. Riley, his wife, and C. B. Riley, to subject certain land to the payment of a judgment obtained by plaintiff against defendant Levi W. Riley. From a judgment for defendant, plaintiff appeals. Affirmed.

F. S. Ivanhoe and D. W. Sheahan, for appellant. A. C. Smith, for respondent.

BEAN, C. J. This is a suit, in the nature of a creditor's bill, to subject certain real estate formerly owned by the defendant Levi W. Riley to the payment of plaintiff's judgment. The facts are that on August 8, 1892, plaintiff commenced an action at law against the defendant to recover money, and caused the land in question to be attached; that a judgment was subsequently rendered therein, and the land ordered sold; that prior to the levy of the writ of attachment Riley conveyed the land to his wife, and she to the defendant C. B. Riley, for the purpose of hindering, delaying, and defrauding creditors; that the land in question was entered by Levi as a homestead, under the laws of the United States, and final proof made on the 8th day of October, 1889, and patent issued to him on November 23, 1891; that after final proof, and before patent, he became indebted to the plaintiff bank on several promissory notes, as surety for other parties; that such notes were renewed from time to time, the last renewals thereof, and the notes upon which the action at law was based, being made after he had received the patent for his land. Upon these facts the court below held that the land was not liable to seizure and sale for the satisfaction of said judgment, and plaintiff appeals.

Substantially the only question for our determination is whether a homestead under the laws of the United States is liable to seizure and sale for the satisfaction of a debt contracted after final proof and before patent issues. It is true, the contention was made at the argument that this case does not come within the provisions of the homestead law, because the notes upon which the action was based were given after the issuance of the patent. But in this view we are unable to concur. The notes in question were simply renewals of other notes, and evidence of an indebtedness contracted long before the date of their execution. The debt for which it is sought to subject the land in question to compulsatory sale was contracted by Levi at the time the money was borrowed from the bank, and the notes then executed, and all subsequent notes made in renewal thereof, were

provisions of this act shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor." The literal terms of this section clearly exempt the lands of the homesteader from liability for debts which antedate the issuing of the patent. But the contention for the plaintiff is that, in contemplation of law, the patent issues when the final proof is made, and accepted by the land department, and hence the land is liable for debts contracted thereafter; and this is the view of the supreme court of Colorado. Mercantile Co. v. Davis, 31 Pac. 495. So far as the question of title is concerned, this question may be conceded; but the vice of the position, as applied to the case before us, lies in the fact that we are not dealing with title, but with the question of exemption under a valid statute which declares, in plain and direct terms, that the land granted thereby shall not be liable for debts contracted prior to the happening of a specific event. It has been frequently held that, as between a settler and the government, a vested right to a patent is equivalent to a patent issued, and thereafter the government holds the legal title in trust for the settler, and, when issued, the patent will relate back to the inception of the right of the patentee, when necessary to cut off the rights of intervening claims. Witherspoon v. Duncan, 4 Wall. 210; Stark v. Starrs, 6 Wall. 402; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95. But this rule is one of title, and has no bearing upon the question of exemption. By the federal constitution, congress is expressly vested with the power of making all needful rules and regulations respecting the public domain, and under this power it may dispose of public lands on such terms and conditions, and subject to such limitations and restrictions, as in its judgment may be deemed advisable; and its decision is conclusive in all other places, and before all judicial tribunals. Gile v. Hallock, 33 Wis. 523; Seymour v. Sanders; 3 Dill. 437, Fed. Cas. No. 12,690; Russell v. Lowth, 21 Minn. 167; Miller v. Little, 47 Cal. 348. In pursuance of this power, and with a view to encourage the settlement of the public domain, congress has invited heads of families to settle upon small parcels thereof, and make for themselves homes, with the assurance that in no event shall the land become liable to the satisfaction of any debt contracted prior to the issuing of the patent, although in the meantime the settler may become the owner of the equitable title. It will thus be seen that questions as to when the period of exemp