Opinion of the Court-FULLERTON, J. [28 Wash.

ments of title relied upon by the appellants be held void, that they be enjoined from in any manner asserting title to the premises adverse to her, and for general relief. The allegations of the affirmative answers were put in issue by replies. The trial court, after hearing, found that the deed from C. M. Drake to his wife was made for a valuable consideration, and without any intent to hinder, delay, or defraud creditors, and was received by the wife without any such intent. A decree was entered accordingly, holding for naught the appellants' muniments of title, enjoining them from asserting any claim to the property by reason thereof, and quieting the title to the premises in the respondent Maria S. Drake. This appeal is from that decree.

As a preliminary question, the respondents insist that the appellants cannot maintain this action. It is said that, as their complaint does not allege, and it was not shown by the evidence, that the land in controversy was in the possession of the appellants, or that the same was vacant, at the time the suit was instituted, the appellants cannot recover, because a plaintiff must allege and prove one or the other of these facts before he can maintain an action to quiet or remove a cloud from title. Spithill v. Jones, 3 Wash. 290 (28 Pac. 531), is cited as sustaining this contention. This court in that case did hold that an action to quiet title should be dismissed for want of equity where the proofs failed to show that the plaintiff was in possession of the lands the title to which was sought to be quieted, or that the same was unoccupied by any person. It spoke also as if the question was one of the jurisdiction of the court. It is clear, however, from the opinion as a whole, that the court did not mean by its use of this term that it was without jurisdiction or power to determine the subjectmatter of the controversy between the parties or

Apr. 1902.] Opinion of the Court-FULLERTON, J.

that a judgment entered therein would have been void, but meant rather that equity would not entertain a suit to quiet title when the plaintiff had

an

adequate remedy at law, and that he had such adequate remedy in that case by an action of ejectment against the person in possession. In other words, it was held that plaintiff had mistaken his form of action, and the court would not permit him to maintain it over the objection of the defendant. And this must be so from the nature of the objection. The fact that the plaintiff is or is not in possession, or that the land is or is not vacant, does not affect the jurisdiction of the court to determine the subject-matter of the controversy between the parties, nor does it affect the merits of that controversy, but affects only the plaintiff's right to have the merits of the controversy determined in that particular form of action. Being 30, it is a right which the defendant can waive, and when he does so, and consents to a trial upon the merits, the judgment entered therein is entered therein is not void, or not void, or voidable. even, except for errors committed in the course of the trial which would render the judgment voidable were the plaintiff's right to maintain the action absolute. Hooper v. Henry, 31 Minn. 264 (17 N. W. 476); Mitchell v. McFarland, 47 Minn. 535 (50 N. W. 610). The question not being jurisdictional, it may be doubtful whether the respondents can urge it upon the appeal of their adversaries; but, passing this, it is clear that they have waived the objection. After their demurrers were overruled, they not only answered by denials and by affirmative matter constituting a defense, but they answered by a pleading in the nature of a cross complaint, in which they pleaded title in one of themselves by virtue of the deed the appellants sought to have canceled, praying that the appellants' muniments of title be

Opinion of the Court-FULLERTON, J.

[28 Wash. held void and a cloud upon such title; thus submitting to the determination of the court the very issue the appellants sought to have submitted. What is more, they obtained the relief for which they prayed. Certainly they cannot, on an appeal by their adversaries from the judgment granting that relief, be heard to say that the appeal cannot be maintained because the appellants originally mistook the form of action in which they sought to submit to the court the question finally determined by it. They cannot hold to the benefits of the judgment and deny their opponents the right to contest it on the ground that the controversy which led up to it was not before the court. On any theory the appellants have the right to have the judgment entered reviewed by this court, and reversed, if not found to be consonant with the law and facts of the case. are clear that the appellants are entitled to something more, that they are entitled to have the whole of the controversy determined, because the respondents, by denying the appellants' title, and setting up title in one of themselves, and asking to have the question adjudicated, have waived the right to object to the form of the action.

But we

The respondents next insist that the appellants cannot, in any event, recover, because the question became res judicata in the former action mentioned, which, as we have said, was dismissed without prejudice. It is not contended that the judgment actually entered therein has the effect of res judicata on the merits of the controversy, but that the respondents were entitled in that action to a judgment on the merits, and that the court erred in refusing to enter it. It is evident, however, that it is to the judgment actually entered in an action which is or is not a bar to another action, not a judgment that might or ought to have been entered therein. It is, perhaps, needless to add that a judgment of dismissal of an action without prejudice is

Apr. 1902.] Opinion of the Court-FULLERTON, J.

not a bar to another action between the same parties for the same cause of action.

Another reason urged why the appellants cannot recover is that they were not creditors of C. M. Drake at the time he conveyed the property at Tacoma to his wife. It is said that the predecessors in interest to the appellants at that time had at most only an unliquidated claim for damages for a fraud practiced upon them by C. M. Drake, and that one holding an unliquidated claim for damages against another, sounding in tort, does not constitute the claimant a creditor before the claim is prosecuted to judg ment, nor invest him with the right given by law to creditors to question fraudulent or voluntary transfers of property made by the person against whom the claim exists before the claim is reduced to judgment. There are cases which maintain this contention, but they are based, as we understand them, upon statutes not so broad as the rule in force in this state. The statute of 13 Eliz. c. 5, which is a part of the common law of this state (Wagner v. Law, 3 Wash. 500-502, 28 Pac. 1109, 28 Am. St. Rep. 56, 15 L. R. A. 784), provided that all conveyances made with the intent to hinder, delay, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, etc., should be deemed and taken as void, and of none effect. In those states where a similar statute is in force, or which recognize this statute as being a part of their common law, it is the almost uniform holding that a person having a claim against another for damages sounding in tort is a creditor of that other within the meaning of the rule, and this holding, we think, is supported by the better

reason.

Again, it is said the appellants cannot recover because it was not alleged that Drake was insolvent at the time of the conveyance which is alleged to have been fraudulently

Opinion of the Court-FULLERTON, J. [28 Wash.

made. The complaint, as we have shown, alleges the agree ment between the parties to exchange properties, the deeds made in pursuance of that agreement, the deed from C. M. Drake to Maria S. Drake, and the times of their several executions; that execution had been issued upon the judgment, and that the sheriff had returned that he was unable to find any other property belonging to C. M. Drake out of which the execution could be made, and further alleges that "C. M. Drake had no other property in the state of Washington at any of the times herein mentioned out of which to make said execution." This is sufficient against the general objection here made. Cook v. Tibbals, 12 Wash. 207 (40 Pac. 935).

On the question of the good faith of the conveyance from C. M. Drake to his wife, we think the trial court erred. By statute in this state (Bal. Code, § 4580) it is provided that in every case where any question arises as to the good faith of any transaction between husband and wife, whether a transaction between them directly or by the intervention of a third person, the burden of proof shall be upon the party asserting the good faith; and in Liebenthal v. Price, 8 Wash. 206 (35 Pac. 1078), after referring to the statute, we said it was a general rule, where transfers of property from husband to wife are questioned, that the payment of a valuable consideration must be shown by proof of the most satisfactory character. While it may be true that a conveyance from a husband to a wife is not of itself a badge of fraud, either under the rule of the statute or the general rule cited, it is nevertheless a fact, which naturally awakens suspicion, lends greater weight to other unfavorable circumstances, and will be for that reason set aside upon less proofs of fraud than will a transaction between parties not having the same confidential relation. Turning to the record, and consid