the lower court should be reversed, and it is wise conflicts with its general provisions. Also ordered. though the words "discovery shaft" are used in section 8, they should not be held to refer RUDKIN, C. J., and CROW, MORRIS, and to an original discovery such as is provided PARKER, JJ., concur. CHADWICK, J. To dissent from the majority opinion may be redundant in the light of what was said by Judge Fullerton when the case was first decided, 54 Wash. 617, 104 Pac. 128. It does seem to me that the majority, in its endeavor to follow the letter of the law, has utterly ignored its pretense and spirit. It is not explained why, if the construction put upon section 8 is proper, it was ever enacted at all. A very certain test of a statute when of doubtful meaning is to refer to the reasons prompting its enactment. It will require no argument to convince the reader that section 8 is useless cargo, serving no possible purpose, unless it was written to serve the purpose set out and explained in Judge Fullerton's opinion. The majority opinion reads the word "only" out of section 8, saying: "It is contended that the word 'only,' in the second line of section 8, where it is said that the relocation of forfeited or abandoned quartz or lode claims shall 'only' be made by sinking a new discovery shaft, lends color to the contention; and, if this were the only qualification for obtaining title by relocation of forfeited or abandoned claims, the contention might possibly be sustained. But considering the whole section together, in our judgment it simply means that the relocation of forfeited or abandoned quartz or lode claims shall only be made in the same manner as is provided for in the former section." Right here the opinion is at fault. The whole section is not considered together; else why is no mention made, or construction attempted of, the last clause of the section, which reads as follows: 46 * In either case a new location monument shall be erected and the location certificate shall state if the whole or any part of the new location is located as abandoned property"? The statute undertook to put upon the one who claims mining ground as abandoned or forfeited a burden that was not imposed upon an original locator, and properly so; for the one who takes abandoned ground takes more than the mere land. He reaps the reward of another's foresight and industry. Section 8 declares that he shall do more than file upon the land. It requires some evidence of good faith. puts the burden of proving the abandonment or forfeiture on the relocator, whereas under the opinion of the majority the burden of proof would be upon the one who is put to the necessity of ejecting the intruder. To save section 9, which is written in the singular, and evidently refers to section 2 of the act, the majority has held section 8 for naught, notwithstanding it most clearly appears to be an exception to the statute, and in no It for in section 2, and, as referred to in section 9, the word "discovery" is superfluous. This is made manifest by the words "or the relocator may sink the original discovery shaft ten feet deeper than it was at the date of commencement of such relocation," etc.; the law being that he is not bound to make a new discovery, but is bound to sink 10 feet in the ledge. There is and can be no such thing as a "discovery" where the shafts, tunnels, bunkhouses, and bins of another are appropriated; but there can be, and it was the intent of the law of 1899 to compel, some expenditure of time and money on the part of the one who jumps the claim of another. The object of the law of 1899 was to make claim jumping hard. The decision of the majority not only makes it easy, but will incite the mining claim jumper and blackmailer to new activities. FULLERTON, MOUNT, and GOSE, JJ., concur. (57 Wash. 581) LINDLEY v. McGLAUFLIN. (Supreme Court of Washington. March 4, 1910.) 1. ACCOUNT (§ 12*)-EQUITABLE JURISDICTION -LONG ACCOUNTS-REFERENCE. The complaint alleged for the first cause of action that plaintiff was lessee of a manufacturing plant, and made an oral agreement with defendant by which he was to manage the plant for $100 a month, and that defendant managed the plant for about a year, during which time he had sole charge of the business, keeping the accounts, etc.; that during that time plaintiff went abroad for about five months, giving defendant instructions as to the conduct of the business during his absence, and that defendant disobeyed such instructions by purchasing excessive amounts of material, and used plaintiff's materials to build a house for himself; borauthority; overdrew his account, and credited rowed large sums on plaintiff's account without himself with money he was not entitled to, and for which he did not account. The second cause of action alleged was that defendant, without plaintiff's knowledge or consent, moved a building from the leased premises so as to compel plaintiff to spend a certain sum in having it returned, and the third cause of action alleged safe in the office unlocked, permitting a certain that defendant through gross negligence left a amount of money to be stolen. The answer admitted defendant's employment, but denied the other allegations of the complaint, and the first separate answer alleged that defendant was to receive $150 a month and 20 per cent. of the profits of the business in addition thereto, and that the business made a profit of a certain sum, and the second separate answer alleged that deentitling defendant to that percentage thereof; fendant owned certain property left on the premises when he was discharged, which plaintiff appropriated. The reply alleged that defendant was to receive a salary in excess of $100 a month only if the business made a profit while defendant acted as manager, but that there was For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes a loss during that time. Held that, as the rights into an oral agreement with the defendant of the parties could not be determined without by which the defendant agreed to manage a long and complicated accounting under the general rule as to equity jurisdiction, as well as in view of Ballinger's Ann. Codes & St. 8 5034 (Pierce's Code, & 654), permitting a compulsory order of reference when the trial of an issue of fact requires the examination of a long account, the first cause of action alleged was one for equitable cognizance. [Ed. Note.-For other cases, see Account, Cent. Dig. § 64; Dec. Dig. § 12.*] 2. ACCOUNT (§ 12*)-GROUNDS OF JURISDICTION-MULTIPLICITY OF SUITS. While the second and third causes of action and the second separate defense were purely legal, they were so connected with the principal transaction as to be triable in equity with the first cause of action, in order to avoid multiplicity of suits. [Ed. Note.-For other cases, see Account, Cent. Dig. 8 64; Dec. Dig. § 12.*] 3. ACCOUNT (§ 4*)—EQUITABLE ACTION-FIDUCIARY RELATION. While equity assumes jurisdiction over an accounting between parties occupying fiduciary relations, the existence of a fiduciary relation is not necessary if the action involves a long and complicated account. [Ed. Note.-For other cases, see Account, Cent. Dig. §§ 13, 14; Dec. Dig. § 4.*] 4. ACTION (§ 25*)-NATURE-LEGAL OR EQUITABLE-DETERMINATION. Since, under the direct provisions of the Code (Ballinger's Ann. Codes & St. § 4913a), defendant may allege as many defenses as he has, whether legal, equitable, or both, a purely equitable defense alleged in a legal action may be tried as an equitable action, and hence in determining whether an action is legal or equitable all of the pleadings may be considered, and not merely the complaint. [Ed. Note.-For other cases, see Action, Cent. Dig. § 156-159; Dec. Dig. § 25.*] Department 1. Appeal from Superior Court, King County; John F. Main, Judge. Action by Hervey Lindley, doing business as the Lindley Lumber & Realty Company, against J. R. McGlauflin. From a judgment for plaintiff, defendant appeals. Affirmed. Roberts, Battle, Hulbert & Tennant, for appellant. J. T. Watson and Dorr & Hadley, for respondent. FULLERTON, J. This is an appeal from a judgment entered in an action tried by the court without the intervention of a jury. The appellant contended that the action was an action at law, and demanded a trial by jury, paying into court a jury fee. The court, however, ruled that the action was one of equitable cognizance, properly triable as such, and proceeded accordingly. The correctness of this holding is the sole question presented by the appeal. The complaint of the plaintiff contained three separate causes of action. In the first it was alleged in brief that the plaintiff was the lessee of a certain manufacturing plant, consisting of a planing and shingle mill, an office building, and certain other buildings, together with the land on which the plant and buildings were situated; that he entered the plant and business of the plaintiff for a consideration and salary of $100 per month; that the defendant entered upon his duties as such, and continued therein for the period of about one year, during which time he had the sole custody and charge of the business. including the keeping of the accounts of the business; that the appellant desired to make a trip abroad, and just prior to leaving gave the defendant positive instructions concerning the conduct of the business; that he did make such a trip, being abroad some five months; that on returning he found that the defendant had disobeyed his instructions, in that he had purchased large and excessive amounts of material, had used the plaintiff's materials to construct a house for himself and wife, had borrowed on plaintiff's account large sums of money in excess of the amounts he was authorized to borrow, had largely overdrawn his account, and had credited himself with money to which he was not entitled to credit himself with, and had appropriated to his own use moneys derived from the business and belonging to the plaintiff for which he had made no accounting at all. The items charged as having been misappropriated were set forth in detail, and made a total of $1,291.30. For a second cause of action the plaintiff alleged that the defendant, without the knowledge or consent of the lessors or the plaintiff, moved a building from the lease, and not owned by the lessors, and that leased ground to ground not included in the the plaintiff was obligated to return the building to it's proper place, to his damage in the sum of $200. For a third cause of action the plaintiff alleged that during his absence the defendant through gross carelessness and negligence had left the safe in the office building unlocked, and that some person or persons unknown to plaintiff had entered therein and had stolen and carried away moneys of the plaintiff aggregating $88.75. The prayer of the complaint was for the recovery of these several sums with interest. The defendant, answering the complaint, admitted the fact that he was employed as manager of the plaintiff's business, but denied practically all of the other allegations of the complaint. For a first separate answer he alleged that he was employed at a salary of $150 per month, instead of $100 per month as alleged by the plaintiff, and in addition thereto was to receive 20 per cent. of all profits made in the business; that the business made a profit during the 12 months in which he acted as manager of $7,344, and that in salary and profits he was entitled to take from the business $3,268.80; that he had taken but $1,650, leaving a balance due him of $1,618.80. For a second separate answer he alleged that he owned in his own separate right certain personal property of the value of $720, which was left on the plaintiff's | must exist in order to give such jurisdiction. premises at the time he was discharged, and Where fiduciary relations exist between the that the plaintiff had appropriated and con- parties, whether of partnership or some other verted the property to his own use. He there- manner, courts of equity have always assertupon demanded judgment against the plain-ed jurisdiction over an accounting between tiff for the sum of $2,338.80, with interest. A reply was filed in which it was alleged that the defendant was to receive a salary in excess of $100 per month only in case there was a profit in the business, in which case he was to receive an additional sum of $50 per month, or such portion of such additional sum as 20 per cent. of the profit would pay, and that there were no profits in the business during the time the defendant acted as manager, but on the contrary there was an actual loss. This being the status of the issues it has seemed to us that there could be but little question as to the correctness of the court's ruling. Manifestly the right of the parties could not be determined except by taking an accounting between them, and, as the transactions appeared by the pleadings to be extensive and varied, it necessarily involved a long and complicated accounting. It has long been the rule that these conditions alone justified the assumption of jurisdiction by a court of equity. Indeed, in this state it is specially provided by statute (Ballinger's Ann. Codes & St. § 5034 [Pierce's Code, § 654]) that a compulsory order of reference may be made when the trial of an issue of fact shall require the examination of a long account on either side; this on the principle, of course, that the proceeding was formerly cognizable in chancery and not subject to trial as an action at law; and, of course, if the court may make a compulsory order of reference in such a case, it may make the accounting itself without the aid of a jury. Jurisdiction of equity in this class of cases had its rise in the inadequacy of the common-law remedy. A court of law sitting with a jury is not a tribunal constituted so as to try an action involving a long account and reach an accurate result. The jury have no adequate facilities for keeping records of the several items going to make up the account and the ordinary mind cannot keep them in memory. sult must necessarily be a verdict without adequate consideration of the matters involved, resulting, oftener than otherwise, in rank injustice to one party or the other. The re them (1 Enc. L. & P. 740); and here clearly there was such a fiduciary relation. But as we have before indicated, we do not think even a fiduciary relation necessary in all cases to give a court of equity jurisdiction. If the action involves a long and complicated account, as it did in this instance, the court has jurisdiction to try it in that manner which will do justice between the parties, regardless of the character of the legal relationship between them. The appellant insists, further, that the question whether the action is of legal or equitable cognizance must be determined from the complaint alone, not from the pleadings in their entirety, and urges that the complaint in the present case shows a legal, and not an equitable, cause of action. But a defendant under the Code may set forth by answer as many defenses as he may have, "whether they be such as have heretofore been denominated legal or equitable, or both." Ballinger's Ann. Codes & St. § 4913a. In other words, a purely equitable defense may be set forth to a purely legal action; and, since it may be set forth, it may be tried as an equitable action. Peterson v. Philadelphia Mtg., etc., Co., 33 Wash. 464, 74 Pac. 585. It follows from this, we think, that the nature of the trial is determined from the entire pleading rather than from the complaint alone. The second and third causes of action in the complaint and the second separate defense in the answer presented, of course, purely legal questions. But they were matters growing out of the principal transaction or connected with it in such a way as to be triable with the equitable branch of the case, in order to avoid a multiplicity of suits. We conclude, therefore, that there was no error in the order of the court, and that the judgment must stand affirmed. RUDKIN, C. J., and CHADWICK, MORRIS, and GOSE, JJ., concur. (57 Wash. 446) DUVALL v. HEALY LUMBER CO. (Supreme Court of Washington. Feb. 24, 1910.) 1. HUSBAND AND WIFE (8 273*)-COMMUNITY PROPERTY-RIGHTS OF SURVIVOR. Upon the death of a wife intestate, comand one-half to the legitimate issue of her body; munity property passes one-half to the husband the husband's interest becoming his separate property, subject to his sole disposition. The appellant has devoted a large space in his brief to the discussion of the question whether he and the respondent were in fact partners, apparently on the theory that this relation must be found to exist before a court of equity can exercise jurisdiction of an accounting between them; but such is not the rule. Courts of equity sometimes assume jurisdiction over an accounting between parties when a fiduciary relation exists between them, when otherwise it would not; but it is nowhere held that a partnership relation For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1009; Dec. Dig. § 273.*] 2. HUSBAND AND WIFE (§ 273*)-COMMUNITY PROPERTY-CONVEYANCE BY SURVIVOR. Fact that a grantor possessed of a half interest in former community property attempted NECESSITY FOR ADMINISTRATION. before the deceased wife's estate had been ad- | respondent to recover the land described, ministered on to convey the entire interest there- averring that his deed thereto to Henry in did not avoid the conveyance as to the part owned by him, the grantee taking the grantor's Hewitt, Jr., was void and of no effect. In interest subject to community debts and to the the title to his complaint he purports to sue right of administration should letters of admin- as administrator of his wife's estate and as istration be seasonably applied for. guardian ad litem of his children, but at the [Ed. Note.-For other cases, see Husband and trial he offered no evidence tending to show Wife, Cent. Dig. § 1021; Dec. Dig. § 273.*] 3. EXECUTORS AND ADMINISTRATORS (§ 3*)-manent guardian or guardian ad litem, and that he had been appointed either their perLaws 1895, c. 105, § 1, provides that title he must recover in this action, if he recovers to lands or interests therein owned by a de- at all, in his capacity as administrator soleceased person vests immediately, subject to his debts, etc., and that no administration or decreely. Two of the children at the time of the of distribution shall be necessary. Section 3 commencement of the action were minors, provides that no real estate of a decedent shall but they had reached the age of majority at be liable for his debts, unless letters of admin- the time of the trial. None of them interistration be granted within six years from his vened or offered to intervene in the action. death. Held, that 13 years after a person's death there is no necessity for administration of The court held that the respondent was not his estate; there being no debts to which it entitled to recover, and dismissed the accan be subjected, and the title being fully vested tion. From the judgment of dismissal the adin those rightly entitled thereto. ministrator has appealed. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 9, 10; Dec. Dig. § 3.*] Rudkin, C. J., dissenting. Department 1. Appeal from Superior Court, King County; Geo. E. Morris, Judge. Action by James Duvall, administrator of Annie Duvall and guardian ad litem of James C. Duvall and others, against the Healy Lumber Company. Judgment of dismissal, and plaintiff appeals. Affirmed. Vince H. Faben and S. H. Kelleran, for appellant. Brownell & Coleman, for respond ent. The appellant both in his complaint and in his brief seems to contend that his deed executed after his wife's death passed no title whatever in this land to the grantee named therein, but manifestly this is not maintain able. The property, being the community ed on her death, in the absence of testaproperty of the appellant and his wife, passmentary disposition, one-half to the appellant and one-half to the legitimate issue of her body. The appellant's interest then became his separate property, subject to his sole disposition, and his deed of the property passed to the grantee named therein such interest. The fact that he attempted to convey FULLERTON, J. On December 2, 1886, a greater interest than he had did not avoid James Duvall purchased 160 acres of land the conveyance as to the part owned by him. lying in King county, Wash. At that time The deed passed his interest, however inefDuvall was a married man, living with his fective it may have been to pass interests wife, and the real property so purchased be- which he did not possess. There is nothing came the community property of himself and in the case of Mabie v. Whittaker, 10 Wash. wife. To Duvall and wife were born four 656, 39 Pac. 172, cited by the appellants, that children-George W., born December 3, 1878, supports a contrary doctrine. In that case James C., born March 26, 1883, Lena, born it was held that community property acquirSeptember 18, 1885, and Olive, born June 6, ed at a time when the law empowered the 1889. On January 9, 1890, Annie Duvall, the husband to convey property so acquired could wife, died intestate. Thereafter and on De- not be conveyed by him after his wife's cember 15, 1892, James Duvall, representing death under a statute providing that comhimself to be a single man and the sole own-munity property should pass on the death of er of the property above described, sold and one spouse one-half to the surviving spouse conveyed the same by warranty deed to Hen- and one-half to the legitimate issue of her ry Hewitt, Jr., for the consideration of $1,- body. It was not questioned, however, that 500. Hewitt thereafter conveyed the proper- the husband could convey his interest therety to the Everett Timber & Investment Com-in; on the contrary, it was inferentially pany, which, in turn, conveyed it to the stated that he could. See opinion, page 664 present respondent on January 20, 1901. of 10 Wash., page 172 of 39 Pac. The apHewitt took possession of the property short-pellant's grantee therefore acquired by the ly after his purchase of the same, and he and his successor in interest have been in possession ever since, during which time they have paid all taxes and assessments levied thereon. In the month of November, 1903, nearly 13 years after the death of his wife, James Duvall procured himself to be appointed administrator of her estate, and in March, 1904, began this action against the appellant's deed an undivided one-half interest in the property, and became thereby a tenant in common in the property with the children of appellant and his wife. The grantee's interest was taken, of course, subject to community debts, and subject to the right of administration, had letters of administration been seasonably applied for, but subject to these rights he took the fee, and could and did convey the interests acquired by him to the respondent. It follows therefrom that the respondent has such an interest in the property as will enable it to contest the right of the appellant to administer upon it. ing with reference to the case of Murphy v. Murphy, it was said: "In the Murphy Case we said: 'We are of opinion that, under the facts shown, no real necessity existed for any administration in this state, 11 years having elapsed since the testator's decease, and his estate in Iowa having been fully settled there by a court of competent jurisdiction. Had any good and sufficient reason existed at any time for administration in Washington, the interested party desiring the same should have applied for the appointment of an administrator within at least six years after the death of said J. H. Murphy.' It will thus be seen that our holding in the Murphy Case was based not only upon the provisions of section 4640 [Ballinger's Ann. Codes & St. (Pierce's Code, § 2718)], but also of section 4642. Here the appellant Frank Slater failed to procure letters of administration on the estate of his deceased wife, but instead seised upon and claimed title to all of the real estate, adversely to her heirs at law, issue by former marriages; and respondent, a little more than three years after her death, within the six years mentioned in Bal. Code, § 4642, was appointed administrator, apparently for the express purpose of protecting the interests of said heirs, a number of whom are minors. It is true appellant contends there were no outstanding debts, and has alleged he paid all that ever heirs at law are here entitled to have the administrator recover and distribute the real estate free from the possibility of any such liens." The question for consideration is, then: Does there exist a necessity for the administration of this estate. The statute (Laws 1895, p. 197, § 1) provides that when a person dies seised of lands, tenements, or hereditaments, or any right thereto, or entitled | to any interest therein in fee or for the life of another, his title shall vest immediately in his heirs or devisees, subject to his debts, family allowance, expenses of administration, and any charges for which such real estate is liable under existing laws, and that no administration of the estate of the deceased, and no decree of distribution or order of any court shall be necessary in any case to vest such title; and by section 3 it is provided that no real estate of a deceased person shall be liable for his debts unless letters testamentary or of administration be granted within six years from the date of the death of such deceased person. Under these statutes, it is plain that there is no necessity for an administration of this property. There are no debts to which it can be subjected, and the title is fully vested in those who are rightfully entitled thereto. If it should be delivered over to the administrator, he could do nothing more than deliv-existed, but that makes no difference, as the er it back to those rightfully entitled to it burdened with the costs of administration caused solely by his interference. If there is any controversy by the heirs of the appellant's deceased wife and the respondent over the title or right of possession of the property, that controversy can better be settled by an action directly between the parties than it can in a proceeding brought to administer upon an estate. Where a contest over the ownership of property arises when an attempt is made to distribute property administered upon which has been properly subjected to an administration, it is proper, of course, to determine the controversy in the administration proceedings, but such a controversy cannot of itself give rise to the necessity of an administration. These principles we think are sustained by the cases of Griffin v. Warburton, 23 Wash. 235, 62 Pac. 765; Anrud v. Scandinavian-American Bank, 27 Wash. 16, 67 Pac. 364; and Murphy v. Murphy, 42 Wash. 142, 84 Pac. 646. The respondent, however, relies on the case of Gibson v. Slater, 42 Wash. 347, 84 Pac. 648, but it will be noticed that the writer of the opinion in that case carefully distinguished it from the cases above cited, pointing out particularly that a period of six years had not elapsed between the date of the death of the intestate and the appointment of the administrator, and that possible debts of the deceased had not been barred. Speak We conclude, therefore, that there was no necessity for administering upon the estate of the appellants' intestate, and the judgment will stand affirmed. CHADWICK and GOSE, JJ., concur. MOR. RIS, J., took no part. This is a RUDKIN, C. J. (dissenting). collateral attack on letters of administration issued by a court of competent jurisdiction, and the conclusion of the majority can only be sustained upon the ground that letters of administration granted more than six years after the death of the intestate are null and void. In that conclusion I cannot concur. (57 Wash. 460) CARPENTER v. BRACKETT. (Supreme Court of Washington. Feb. 24, 1910.) 1. HUSBAND AND WIFE (§ 264*)-COMMUNITY PROPERTY-CONVEYANCES-EVIDENCE. Evidence held to show that a husband, to whom a deed, running to the wife as grantee, had been delivered by one holding it as trustee the wife. for the husband and wife, delivered the deed to [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 916; Dec. Dig. § 264.*] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |