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titution of a portion of appellant's lands and premises held and claimed by respondents, and third to establish the corners and boundaries of appellant's land and recover damages in the sum of $1,000. The appeal is from a judgment of nonsuit and an order denying a motion for a new trial.

The patent from the government conveyed to appellant the S. E. 4 of the N. W. 4, N. E. 4 of the S. W. 4, and the lots 5 and 6 of Sec. 6, Tp. 47 N., R. 3 W., B. M., Idaho, containing 160 acres according to the official plat of the survey of said land returned to the General Land Office by the surveyor general. Before commencement of the action appellant had conveyed to Martin Bedoggia, one of the respondents, the E. 1⁄2 of the N. E. 4 of the S. W. 4 of Sec. 6, in pursuance of a direction of the General Land Office. The official plat referred to in the description is here reproduced:

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on the west boundary line of the section and runs north 20 chains. It is evident that the line on the plat demarking the north and south halves of the section meets the west boundary line of the section 2.02 chains north of the quarter corner as shown on the plat. The original corners of the section, as established by the deputy surveyor, are all in place.

[1] The only question involved in this case is as to the identity of the land conveyed to appellant by her patent. This court cannot inquire into the propriety of the surveyor general's action in preparing the plat from the data furnished him by the deputy surveyor in the field. That is a matter committed by the federal statutes to the surveyor general, subject to the supervision of the General Land Office. The patent having conveyed the land according to the official plat of the survey returned by the surveyor general, the

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NEW NORTH BOUNDARY COEUR D'ALENE INDIAN RESERVATION.

v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; Doe v. Hildreth, 2 Ind. 274; Chapman v. Polack, 70 Cal. 487, 11 Pac. 764; Wilson v. Chicago Lbr. & Timber Co., 143 Fed. 705, 74 C. C. A. 529; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S. W. 484, 20 S. W. 161; Jefferis v. E. Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Coles v. Yorks, 36 Minn. 388, 31 N. W. 353.

There is no contention between appellant | plat becomes an integral part of the descripand respondents as to the quarter quarter tion and is binding on all parties who obtain corner on the east line of the section between title to the land by reference thereto. Cragin the east quarter corner and the northeast corner thereof. Appellant contends that the northwest corner of her tract of land is at a point designated on the plat, 17.98 chains south of the northwest corner of the section. Respondents contend that the northwest corner of appellant's land is at a point equidistant from the northwest corner of the section and the quarter corner as shown on the west boundary of the section. It is evident from This is not a case of a contradiction between the official plat that if the respondents' con- the official plat and the field notes of the tention is correct, the true point of the north- original survey, as respondents seem to sugwest corner of appellant's land is south 2.02 gest, for the plat shows on its face that it chains of the point claimed by appellant. The corresponds with and was prepared with appellant in describing her land begins at a reference to the actual survey. If there were point 2.02 chains north of the quarter corner discrepancies between the survey and the

plat, and the description in the patent is according to its terms to be determined according to the official plat, the official plat must control. Beaty v. Robertson, 130 Ind. 589, 30 N. E. 706.

The judgment must be reversed and a new trial ordered. Costs awarded to appellant,

BUDGE, C. J., and MORGAN, J., concur.

On Petition for Rehearing. RICE, J. A petition for rehearing has been filed in this case, in which it is earnestly contended that the opinion filed is erroneous in two particulars: First, in determining that the recitation in the patent, after describing the legal subdivision as "containing 160 acres according to the official plat of the survey," causes the plat to control over the monuments in place in the field; and, second, in holding that the preparing of the plat is left entirely to the surveyor general, and that by filing a plat inconsistent with the monuments placed by the government survey he may give boundaries to the subdivisions different from those fixed by the survey on the ground.

[2] There can be no doubt that the expression in the patent "according to the official plat of the survey of the land returned to the General Land Office by the surveyor general" refers to the description of the land as well as to the quantity conveyed. Wilson v. Hoffman, 70 Mich. 552, 38 N. W. 558; Foss v. Johnstone, 158 Cal. 119, 110 Pac. 294; Chapman & D. Lbr. Co. v. St. Francis Levee Dist., 232 U. S. 186, 34 Sup. Ct. 297, 58 L. Ed. 564; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171.

[3] The identity of the land granted is to be determined, therefore, by the official plat. The field notes of the actual survey and the monuments set by the deputy surveyor are useful only in enabling one to lay out upon the ground the land designated by the official plat. The survey and the plat thereof having been approved by the General Land Office,

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In an action for divorce, the particular acts of cruelty complained of are not of themselves the determining factor, but the question as to whether the acts of cruelty cause grievous mental suffering on the part of the innocent party 3. APPEAL AND ERROR 934(2) FINDINGS is the determining question under the statute. TO SUPPORT JUDGMENT-INFERENCES.

In the absence of objection made in the trial court that the facts are insufficient, in the ment the court will consider as found every reaconstruction of findings to support the judgsonable inference of fact which may be drawn from the facts found. 4 DIVORCE

RATION.

127(4)-EVIDENCE-CORROBO

No definite rule as to the degree of corroboration required in an action for divorce can be laid down, but each case must be decided according to its own facts and circumstances. 5. DIVORCE 127(4)-CRUELTY-EVIDENCECORROBORATION.

In an action for divorce, all facts shown by the evidence, independently of the statements, admissions, or testimony of the parties, which tude of the party complained of toward the othtend to show the treatment, conduct, and attier party to the marriage, are properly considered by the trial court, and it is to determine whether such facts and circumstances corroborate the testimony of the plaintiff in the action. 6. DIVORCE 286, 312 — APPEAL- DISCRETION OF TRIAL COURT-CUSTODY OF CHILDREN-ALIMONY.

The question as to the disposition of children and allowance of alimony in divorce actions is in the first instance committed to the discretion of the court, and unless such discretion is abused the judgment will not be disturbed.

7. DIVORCE 286 — CRUELTY - DISPOSITION OF COMMUNITY PROPERTY-APPEAL.

The matter of the disposition of community property, where a divorce is granted upon the grounds of extreme cruelty, is a matter in the trial court, and unless such discretion is abused, first instance committed to the discretion of the the judgment will not be disturbed. 8. DIVORCE 221-ATTORNEY'S FEES-STAT

UTE.

The right of the trial court to allow attorthe terms of the statute can only be put into operation when it is necessary to enable the wife to prosecute or defend the action. 9. DIVORCE 221-ATTORNEY'S FEES. the future, and not to the past. The allowance of attorney's fees looks to

neither can be called in question in a collater-ney's fees is derived from the statute, but by al proceeding. Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566. It is there fore unnecessary to determine whether the section involved in this case, being a fractional section, was properly subdivided by the plat or not, for even though the plat was made contrary to law it still identifies and designates the land actually conveyed by the patent. See the case of Gazzam v. Lessee of Phillips, 61 U. S. 372, 15 L. Ed. 958, which overrules the case of Brown's Lessee v. Clements, 3 How. 650, 11 L. Ed. 767.

The petition for rehearing is denied.

Budge, C. J., dissenting in part.

Appeal from District Court, Lewis County; Edgar C. Steele, Judge.

Suit for divorce by Rosa B. Donaldson Decree for against John W. Donaldson. plaintiff, and defendant appeals. Decree modified, and, as modified, affirmed.

Allen A. Holsclaw, of St. Maries, and Geo.

BUDGE, C. J., and MORGAN, J., concur. W. Tannahill, of Lewiston, for appellant.

Perry W. Mitchell and S. O. Tannahill, both is the general concensus of judicial opinion, of Nez Perce, for respondent.

the facts found by the judge in this case might or might not result in grievous mental suffering to the injured spouse. The particular acts of cruelty complained of are not of them

RICE, J. The respondent, Rosa B. Donaldson, brought this suit to obtain a decree of divorce from appellant upon the ground of ex-selves the determining factor, but the questreme cruelty causing grievous mental suffering. A judgment was entered in favor of respondent. The appeal is from the judgment. [1, 2] Extreme cruelty is defined by section 2649, Rev. Codes, as "the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage." In 9 R. C. L. p. 335, it is said:

"It is well recognized that no exact inclusive and exclusive definition of legal cruelty can be given, and the courts have not attempted to do so, but generally content themselves with determining whether the facts in the particular case in question constitute cruelty or not. Especially, according to the modern view, is the question whether the defending spouse has been guilty of legal cruelty a pure question of fact to be resolved upon all the circumstances of the case."

tion as to whether the acts of cruelty caused grievous mental suffering on the part of the innocent party is the determining question under the statute. In the headnotes to the case of Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99, 12 L. R. A. (N. S.) S20, 125 Am. St. Rep. 654, it is said:

"A continuous course of fault-finding, threats, and other acts, intended to aggravate and annoy the other party to a marriage, though each act is trifling in itself, may cause such a degree of mental suffering as to constitute a ground for divorce on the charge of extreme cruelty."

[3] In the absence of objection made in the trial court that the findings are insufficient, in the construction of findings to support the judgment the court will consider as found every reasonable inference of fact which may

In the case of De Cloedt v. De Cloedt, 24 be drawn from the facts found. Thus, in the Idaho, 277, 133 Pac. 664, the court said:

"Extreme cruelty is a term of relative meaning, and a course of conduct that would inflict grievous mental suffering upon one person might not have that effect upon another. Hence no fixed legal rule for determining. its existence in any given case can be laid down. The judge who tries the case and has the parties before him for observation in the light of the evidence is the one to whom the law commits the determination of this question in the first instance, and this court will not disturb a finding that particular acts constitute grievous mental suffering, unless the evidence in support of the finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court."

See. also, Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660, and Fleming V. Fleming, 95 Cal. 430, 30 Pac. 566, 29 Am. St. Rep. 124.

The finding of the trial court is as follows: "That since said marriage defendant has treated plaintiff in a cruel and inhuman manner; has cursed her and otherwise abused her, and has on divers occasions called plaintiff vile and profane names, and has threatened plaintiff with great bodily harm. That on or about the 1st day of February, 1915, the defendant cursed and swore at plaintiff, called her vile names and applied to her vile epithets. That the defendant has on other occasions been guilty of cruel treatment toward the plaintiff as set out in paragraphs 3 and 4 of the plaintiff's complaint."

The appellant does not specify as error that the court did not find that the misconduct of appellant inflicted grievous mental suffering upon respondent. Nevertheless, in actions of this nature we feel called upon to consider the sufficiency of the finding to support the judgment.

In the case of Fouch v. Bates, 18 Idaho, 374, 110 Pac. 265, it is said to be a well-established rule that a finding should be liberally construed in support of the judgment. If extreme cruelty is a relative term, as held in the cases of De Cloedt v. De Cloedt, supra, and Fleming v. Fleming, supra, and indeed as

case of Kelly v. Kelly, 18 Nev. 49, 1 Pac. 194, 51 Am. Rep. 732, the appeal was taken from the judgment roll alone, and there was neither findings of the court nor any statement of the evidence before the Supreme Court. The complaint averred that:

"By reason of the acts of the defendant herein before set forth the life of the plaintiff has that he has been forced to cease cohabiting and been rendered unendurable and miserable, so living with defendant."

There was no averment that he was in danger of life or limb, or health, or in the reasonable apprehension of such danger. But

the court said:

"If the conduct of which the defendant confesses to have been guilty, and which she admits drove the plaintiff from his home, could have resulted in injury to health, then the judgment must be allowed to stand."

In order to support the judgment the inference may be drawn fairly from the findings that the acts found by the trial court to have been committed by the appellant caused the respondent to undergo grievous mental suffering.

[4, 5] It is contended that the plaintiff's testimony is not corroborated to a sufficient degree to justify the granting of the decree. Rev. Codes, § 2661, provides that:

upon

"No divorce can be granted the uncorroborated statement, admission or testimony of the parties."

This court had that section of the statute under consideration in the cases of Bell v. Bell, 15 Idaho, 9, 96 Pac. 196, and De Cloedt v. De Cloedt, supra, and held in those cases that no definite rule as to the degree of corroboration required could be laid down, and that each case must be decided according to its own facts and circumstances. Where the ground urged for divorce is extreme cruelty, very frequently it would be impossible to obtain corroborating evidence of the specific acts of cruelty complained of. All facts

shown by the evidence, independently of the the satisfaction of the mortgage by the apI statements, admissions, or testimony of the pellant. parties, which tend to show the treatment, [8, 9] The action of the trial court in conduct, and attitude of the party complained awarding attorney's fees to the respondent of toward the other party to the marriage, in the final judgment is also assigned as are properly considered by the trial court, error. That portion of the judgment reads and it is to determine whether such facts and as follows: circumstances corroborate the testimony of the plaintiff in the action. Viewed in this light, we think the record contains sufficient testimony, outside the statements, admissions, or testimony of the parties, from which the trial judge would be justified in concluding that the testimony of the respondent was corroborated. Blanchard v. Blanchard, 10 Cal. App. 203, 101 Pac. 536; Briggs v. Briggs, 20 Mich. 34.

[6] The appellant assigns as error the ac

"It is further ordered, adjudged and decreed that the plaintiff shall have judgment against the defendant for the sum of $150 as additional attorney's fees for plaintiff's attorneys, said sum of $150 to be paid to the clerk of the above-entitled court on or before March 1, 1916, and by the said clerk to be paid to plaintiff's attorneys upon their giving a receipt in full therefor."

Rev. Codes, § 2662, provides:

"While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enor to prosecute or defend the action."

tion of the court in awarding the custody of able the wife to support herself or her children,

George M. Donaldson, one of the minor children, to the respondent, and in awarding her $40 per month for his support until he shall have obtained his majority. The question as to the disposition of children and allowance of alimony in divorce actions is in the first instance committed to the discretion of the trial court. In this case it does not appear that such discretion has been abused, and that part of the judgment will not be disturbed.

[7] Appellant also assigns as error the action of the trial court as to the division of the property. Rev. Codes, § 2670, subd. 1, reads: "If the decree be rendered on the ground of adultery or extreme cruelty, the community property must be assigned to the respective parties in such proportions as the court, from all the facts of the case and the condition of the parties, deems just."

We are satisfied from an examination of the record that the court did not decree to the wife any of the separate property of the husband. The matter of the disposition of community property, where a divorce is granted upon the ground of extreme cruelty, is a matter in the first instance committed to the discretion of the trial court. The court's action in this respect is subject to review, but the division of the property in this case appears to be equitable, and the court's action in that regard should not be disturbed.

The right of the court to allow attorney's fees is derived from the statute, and by the terms of the statute can only be put into operation when it is necessary to enable the wife to prosecute or defend the action. The allowance of attorney's fees looks to the future and not to the past. In the case of Bordeaux v. Bordeaux, 29 Mont. 478, 75 Pac. 359, it is said:

"It is well settled that the court below has no power, after trial and judgment in the case, to compel the husband to provide the wife with for expenses incurred in the trial of the case; money to pay for past services of attorneys, or that the necessity mentioned in the statute rethe future. Therefore, after the case has been fers to prosecuting and defending the action in tried, and the judgment has been entered, no such necessity can exist."

See, also, McCarthy v. McCarthy, 137 N. Y. 500. 33 N. E. 550; Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. 735; Poillon v. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 323; Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87; Pedreira v. Pedreira, 32 Cal. App. 711, 164 Pac. 30.

Prior to the trial the respondent made formal application to the trial court for temporary alimony, attorney's fees, and suit money, and the court, after a hearing, entered an order requiring certain sums to be paid therefor. It does not appear that any further or additional application for attorney's fees was made. If such application had been made and the court had postponed action thereon pending a hearing of the case, it might be said that respondent was en

The court awarded a judgment to respondent against appellant in the sum of $480; such judgment being rendered for the pur-abled to secure counsel to assist her in prospose of covering the amount of a mortgage in favor of the Holland Bank upon real property which had been decreed to the respondent. It does not clearly appear whether or not the appellant is personally liable upon the note secured by this mortgage, but it would be better practice to permit appellant to satisfy the mortgage himself rather than to pay the money to the respondent for that purpose. The judgment should contain a provision requiring the respondent to

ecuting her action upon the strength of the pending application. In that event we have no doubt the court would be authorized to make an order at the time of entry of the judgment for the allowance of such attorney's fees as it should find to be just. But where, as in this case, there is no application pending, and the wife has prosecuted her action to a judgment, it cannot be said that the allowance is made to enable her to prosecute or defend the action, but the al

dered. We do not think the court under the statute had power to make the order complained of.

From an examination of the records in the cases of Roby v. Roby, 9 Idaho, 371, 74 Pac. 957, 3 Ann. Cas. 50, Day v. Day, 12 Idaho, 556, 86 Pac. 531, 10 Ann. Cas. 260, and Spofford v. Spofford, 18 Idaho, 115, 108 Pac. 1054, it appears that in each case an application for attorney's fees was pending during the consideration of the case by this

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MORGAN, J., concurs.

BUDGE, C. J. (concurring in part and dissenting in part). I am in accord with the views expressed in the majority opinion except as to the holding touching the matter of attorney's fees, but in that portion of the opinion I am unable to concur. This court has heretofore adhered to the view that attorney fees may be properly allowed in a divorce suit, and has actually awarded such fees in cases where the services of the attorney had been rendered prior to the order awarding such fees. Roby v. Roby, 9 Idaho, 371, 74 Pac. 957, 3 Ann. Cas. 50; Day v. Day, 12 Idaho, 556, 86 Pac. 531, 10 Ann. Cas. 260. The Supreme Court of Oregon in a well-considered case has announced the following

rule:

*

* *

"When, in a divorce case, the wife has incurred liabilities for attorney's fees, and other expenses of the suit, the trial court may, after such expenses have been incurred, by order, compel the husband to advance the money to pay them, in a proper case. Schulz v. Schulz, 128 Wis. 28, 107 N. W. 302; Courtney v. Courtney, 4 Ind. App. 221, 30 N. E. 914: Woodward v. Woodward, 84 Mo. App. 328; Lamy v. Catron, 5 N. M. 373, 23 Pac. 777; Waters v. Waters, 49 Mo. 385; Jones v. Jones, 111 Ill. App. 396; Thorndike v. Thorndike, 1 Wash. T. 175. There are cases holding the reverse of the above proposition, but we think that the rule stated supra is the better one. A wife, sued for divorce, may employ counsel to attend to the case for her, and, at any time before the final decree in the case is granted, the court may, in its discretion, require the husband to pay for the services so rendered, although the order requiring such payment be granted after the services of counsel have been rendered." (Italics mine.) Taylor v. Taylor, 70 Or. 510, 134 Pac. 1183, 140 Pac. 999-1003.

See, also, Lake v. Lake, 17 Nev. 230, 30

Pac. 878.

There is nothing in the language of our statute which requires a different holding. It provides (Rev. Codes, § 2662):

"While an action for divorce is pending, the court may, in its discretion, require the hus

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band to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” (Italics mine.)

It is apparent from the language here used that the awarding of attorney fees in such cases is given into the discretion of the trial court, and that that court may at any time while the action is pending require the hus band to pay for such services as may be nec essary to enable her to prosecute or defend the action. The trial court is certainly in a position to know whether or not the wife has need of such services, and whether or not the circumstances are such that the husband ought to be required to pay for them, but it does not follow that he could ultimately and equitably determine the entire amount of such fees until all of the services had been performed and the case was ready to be disposed of.

I desire particularly to dissent from that portion of the majority opinion reading as follows:

was

"It does not appear that any further or admade. If such application had been made and ditional application for attorney's fees the court had postponed action thereon pending a hearing of the case, it might be said that respondent was enabled to secure counsel to assist her in prosecuting her action upon the strength of the pending application. In that event we have no doubt the court would be anthorized to make an order at the time of entry of the judgment for the allowance of such attorney's fees as he should find to be just. But where, as in this case, there is no application pending, and the wife has prosecuted her action lowance is made to enable her to prosecute or to a judgment, it cannot be said that the aldefend the action, but the allowance is clearly for services already rendered."

In my opinion a sufficient answer to the view just quoted is to be found in the respondent's complaint which was the first instrument filed in the action. Therein it is alleged (paragraph 8):

"Plaintiff alleges that she is in indigent circumstances, and wholly dependent upon her own labor, and her friends and relatives for her support, that she is in ill health, and unable to earn her own livelihood, and is dependent upon the charity of her friends for support." And in the prayer respondent demands, (paragraph 3):

"That the defendant be required to pay a reasonable sum into court to defray the expense of this suit and for counsel fees, and that he pay the plaintiff such further sum for alimony as to the court may seem just for her support during the pendency of this action."

This is certainly an application to the court for such attorney fees as may be needed to properly prosecute the action, and in my opinion no other form of application is required under the statute, and the mere fact that the respondent made an additional application and received a temporary award before the cause was tried does not alter the situation nor deprive the trial court of the discretion which the statute has expressly given it to make such an award upon the whole case and in the final decree as to it

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