refused by the court, with the exception above mentioned, had either been given in substance, or should not have been given. In addition to this, the instructions tendered were so elaborate and so involved that, if they had been given as asked, they would have served to confuse rather than enlighten.

It is contended, however, that the appellant was deprived of a fair trial by the course of conduct pursued by respondent's counsel during the trial of the cause; that he so framed his questions as to assume the existence of facts which had neither been admitted nor proved; that, on cross-examination, he constantly interrupted defendant's witnesses before they had finished answering his questions, thereby embarrassing them and preventing the elicitation of the truth, and that, by constant insinuation concerning the motives of the witnesses for the appellant, he prejudiced the jury against the appellant and its cause. A reading of the record forces the conviction upon our minds that this contention is not altogether groundless, and it is unfortunate that trial courts are not more strict in enforcing professional conduct on the part of attorneys, and in protecting witnesses from unprovoked assaults. It might be, however, considering the heat of contest, that we would not feel like reversing this judgment on any specified charge alone, had not the counsel gone further and insisted upon commenting, in his argument to the jury, upon matters which had already been eliminated from the trial and from the consideration of the jury by the rulings of the court; these cases having been tried before a stipulation was entered into in writing, to the effect that either party, at this or any retrial of the cases, might read in evidence any part of the testimony taken at the first hearing and transcribed by the stenographer, subject to the objections then made, and with the same effect as though the particular witness were testifying on the stand again. At the first trial certain evidence was offered by respondent and received by the court, and at this last trial it was again offered by respondent and excluded by the court upon the objection of the appellant, as immaterial and irrelevant. At the first trial, after this evidence had been received, appellant introduced testimony of one J. F. Bissell, to explain the matter which was claimed to be irrelevant, and to rebut any improper inferences therefrom. Appellant also introduced testimony by Bissell as to other relevant and distinct facts. At the last trial, appellant again introduced the evidence of Bissell as to these facts, which he claimed to be relevant, by reading Bissell's testimony under the stipulation. When appellant had read what he deemed was material of Bissell's testimony, and declined to read the remainder which had been introduced on the former trial, and had been excluded at this trial on his objection, respondent's counsel insisted on having all the testimony read to the jury, and

a long discussion ensued between the counsel as to the materiality of the testimony which appellant refused to read, the counsel for respondent claiming that it was unfair to read a portion of the testimony, and refuse to read the balance. The court suggested to counsel that they proceed with other testimony, and he would examine the testimony over which the dispute arose, and determine whether or not it was material. Upon the coming in of court the next morning, the court announced that he had examined the testimony, and it was not material to this issue, and overruled the respondent's objection to its omission by appellant's counsel.

The cause proceeded without reference to this matter, until counsel for the respondent addressed the jury, and, during his opening argument, said to the jury, referring to the portion of the testimony of J. F. Bissell which Mr. Hardin had declined to read: "And why, gentlemen, will he attempt to read in evidence here a portion of the witness' evidence and refuse to put in the rest, even the cross-examination of the witness? Mr. Hardin: I object to that statement- Mr. Fulton: If he is desiring fairness- Mr. Hardin: upon the ground that it is an improper statement to make to this jury, in view of the fact that the court has ruled that I was right in so doing, and that the evidence was immaterial. Mr. Fulton: I have a right to comment on the evidence. The Court: The exception will be noted. Mr. Hardin: I ask the court to instruct the jury that counsel has no right to make that statement. Mr. Fulton: Under the law and the practice- Mr. Hardin: One moment. I request the court to instruct the jury that this is an improper statement and that they should disregard it. The Court: I will consider it in my instructions. Mr. Fulton: I say, gentlemen, if he is desiring fair play, and if he is actuated by a spirit of fairness, that fairness which he talked about trying to show, and you have not so much as heard me use the word once he will say, because I do not know the meaning of it. He was just about to write that down, was not he and he desisted. I knew he was-it would be just like him to say it. Mr. Hardin: I was." In order to impress upon the minds of the jury that this was an improper and prejudicial statement by the counsel for the respondent, counsel for the appellant prepared and submitted to the court the following instruction: "I further instruct you gentlemen, that whenever evidence is offered by either side and rejected or excluded by the court, it is so rejected or excluded because it is improper for the hearing or consideration of the jury, either because it is of such a nature that it would serve to confuse the issues rather than throw light upon them, or for some other valid and proper reason. Therefore I instruct you that you will disregard any statement made in your presence concerning any evidence which has been

offered and rejected by the court in this case, and that you will not allow your minds or verdict to be affected thereby in any way or to any extent." The court failed to consider this question, which he had said he would consider in his instructions to the jury, and refused a proper instruction on that subject when it was offered by the appellant. It is needless to say that the comment made by counsel for respondent upon this matter was altogether out of order, after it had been passed upon by the court. If a practice If a practice of this kind were to be tolerated, the trial of a cause would be conducted outside of and beyond the control of the court, and disorder and confusion would be interjected which would prevent the consideration of the cause by the jury under the law as announced by the court. In this case, considering the language which was used by the respective counsel in their heated controversy over this question, the jury might have well conclud ed, notwithstanding the ruling of the court on the admissibility of the testimony and the statement that it would consider the proposition in its instruction to the jury, that, having failed to so instruct, the comments made by the counsel for respondent were justified and met with its approval. The amount of the judgment is questioned by the appellant, but as the verdict of the jury on this question on a new trial cannot be foretold, we will express no opinion on that point in the case.

We are exceedingly loath to reverse a cause involving so much expense and delay as a retrial of this cause will, but, under the record as presented, it may fairly be presumed that the rights of the appellant were prejudiced, and it therefore becomes our duty to reverse the judgment, with instructions to grant a new trial.

CROW, FULLERTON, and HADLEY, JJ.,

concur.

ROOT, J. I concur in the result.

MOUNT, C. J., and RUDKIN, J., did not sit in the case.

(44 Wash. 569)

CARROLL et al. v. HILL TRACT IMP. CO. et al.

(Supreme Court of Washington. Dec. 6, 1906.) 1. LIMITATION OF ACTIONS - FRAUD - DIS

COVERY.

An action will not lie by the purchaser of land at execution sale to set aside an alleged fraudulent certificate of redemption, more than three years after the discovery of the fraud, such limitation of three years being prescribed for actions for relief on the ground of fraud by Bal. Ann. Codes & St. § 4800, though, after the discovery of the fraud, the commencement of suit was delayed by negotiations with reference to settlements and owing to the ill health of plaintiff.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, 573.] .

Where the purchaser of lands at execution sale sued to cancel a certificate of redemption on the ground that the judgment debtor had fraudulently placed it of record without the payment of any money, plaintiff could not argue on appeal that he was entitled to a lien on the lands for money paid at the execution sale; such relief being inconsistent with the theory of the complaint.

4. EXECUTION-SALE-REDEMPTION--NOTICE. Where a husband, who alone was the judgment creditor, purchased at execution sale of land, the certificate of sale issued to him even if evidence of a community interest in property was not evidence of title to community real estate, but belonged to the classification of personal property rights, and, as such, was under the management of the husband, and hence notice of redemption to the husband alone was sufficient.

5. ESTOPPEL-DEALING WITH ONE ASSERTING

TITLE.

A purchaser at execution sale of lands sued to set aside a certificate of redemption on the ground that the judgment debtor fraudulently caused it to be placed of record without the payment of any money. Held, that one who had accepted a deed from plaintiff for a portion of the land that was sold under execution was not estopped to dispute plaintiff's rights to other land embraced in the execution sale.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, §§ 198-203.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by P. P. Carroll and another against the Hill Tract Improvement Company and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Walter B. Beals, P. P. Carroll and John E. Carroll, for appellants. Peters & Powell, for respondents.

HADLEY, J. The amended complaint in this cause alleges that on the 5th day of June, 1884, the plaintiff P. P. Carroll obtained a judgment against W. C. Hill and others in the then territorial district court of Washington, in the sum of $1,250; that, thereafter, on the 4th day of October, 1884, by virtue of an execution under said judgment, certain real estate was sold by the sheriff to said plaintiff, in satisfaction of the judgment, and that he received a certificate of purchase therefor and satisfied the judgment, all of which was followed by confirmation of the sale; that on the 9th day of May, 1885, the then sheriff, John H. McGraw, executed and delivered to the judgment debtor W. C. Hill, one of the defendants in that action, a redemption certificate, which was filed for record June 8, 1885. Sarah J. T. Carroll was then, and is now, the wife of P. P. Carroll, and is a coplaintiff

with the latter in this action. They further allege that they neither received nor waived notice of said redemption; that the sheriff received no money from any one for the redemption of the property; that he paid no money to plaintiffs; that the property never was redeemed from the sale; that the certificate of redemption was procured by the deceit and misrepresentation of Hill, the judgment debtor, to the effect that plaintiffs had waived notice thereof, and that the plaintiffs are entitled to a sheriff's deed. It is alleged that the law firm of McNaught, Ferry, McNaught & Mitchell, mentioned in the redemption certificate as attorneys for the plaintiff in that action, had no authority to represent the plaintiffs, or to act for them in any capacity after the purchase at the sheriff's sale, the satisfaction of the judgment, and confirmation of sale; that the plaintiffs had no knowledge of said redemption until June, 1886, at which time the plaintiff P. P. Carroll demanded of the sheriff a deed to said land, and was informed by the sheriff of the redemption; that the said judgment debtor Hill died about August 30, 1890; that prior to his death he promised plaintiffs to cancel the record of redemption on condition that the plaintiffs would quitclaim to him the said real estate, less the number of acres to be retained by them, and that, pending negotiations for settlement, said Hill died suddenly; that thereafter, in the year 1894, one John W. Thompson, who claimed an interest in the land, entered into negotiations with plaintiffs for the purpose of effecting a settlement of the title to the land, which negotiations were continued from time to time at the request of Thompson, until the time of his death which occurred about May 31, 1901, and that Thompson in all his dealings with said lands knew of plaintiffs' said claim of ownership; that the tract of land contained 19240/100 acres; that by said negotiations the plaintiffs were to quitclaim to Hill all of the tract except a certain 50 acres, and that such was the condition of the negotiations at the time of Hill's death; that because of the said negotiations and urgent requests of Hill and Thompson, and of their promises and assurances of an amicable adjustment, plaintiffs refrained from instituting suit to clear their title of the cloud caused by the record. and the redemption certificate, and also for the further reason that from 1891 to 1897 the condition of the health of said P. P. Carroll was such that an engagment in such litigation would have indangered his life. It is further alleged that the defendant Hill Tract Improvement Company has succeeded to the interests of said Hill and Thompson, with knowledge of all the above facts. The said company and the present sheriff of King county are made parties defendant, and the relief prayed is that the said redemption certificate shall be canceled of record; that the claims of said company shall

A

be declared inferior to the plaintiffs' rights in the land, and that the sheriff shall be directed to execute a deed to plaintiffs. supplemental complaint was also filed, in which it is alleged that the defendant Hill Tract Improvement Company did, after the commencement of this action, for a valuable consideration, receive from the plaintiffs a deed for a part of the said land, and that it thereby recognized plaintiffs' ownership. A demurrer was interposed to the amended complaint and supplemental complaint, which was sustained. Plaintiffs elected to stand upon the amended complaint and supplemental complaint, and; having refused to plead further, judgment was entered dismissing the action. The plaintiffs have appealed.

It is assigned that the court erred in sustaining the demurrer. The demurrer is based both upon general grounds, and also upon the statute of limitations. The complaint is clearly one in equity to procure the cancellation of an alleged fraudulent certificate of redemption, and to effect the execution of a sheriff's deed to appellants. The theory of the complaint is that W. C. Hill, the judg ment debtor in the former suit, in June, 1885, fraudulently procured and placed of record a pretended redemption by Hill, with out the payment of any money. The complaint alleges, however, that the appellants learned of this in June, 1886, and being thus advised of the existence of the alleged fraud, they were required to seek relief within the period of the statute of limitations in such cases provided. The statute provides that an action for relief on the ground of fraud must be brought within three years, but that the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. Section 4800, Ballinger's Ann. Codes & St. This action was not so commenced, but was begun nearly 20 years after the admitted discovery of the facts constituting the alleged fraud. Neither the alleged negotiations with reference to a settlement, nor the facts alleged about the ill health of one of the appellants, could have the effect to stay the running of the statute, and, in any event, so far as any dates mentioned in the complaint are shown, the negotiations did not begin until August, 1890, more than four years after the discovery of the alleged fraud, and the ill health period did not begin until about a year later. The action was therefore barred before the conditions arose which are alleged as excuses for not sooner bringing the action. Appellants argue in their brief that they claim title by adverse possession but their allegation on the subject of possession is simply that, after their purchase at the execution sale, they "entered upon and took possession of said land, and have ever since held said possession." They do not allege that the possession was open and notorious, or that it has been known to, or

was even adverse to, respondent and its grantors. The whole complaint shows that the action was not brought to quiet title by reason of adverse possession, but to remove a cloud of an alleged fraudulent redemption certificate, and to procure a sheriff's deed as the result of the cancellation of the certificate. Appellants also argue that they are entitled to a lien upon the lands for the money paid at the execution sale. This argument must necessarily be based upon the theory that the redemption was complete and effective, leaving the land as that of the judg ment debtor, and not that of appellants, and that appellants as the execution creditors became entitled to the redemption money by reason of the payment of money at the execution sale. In such case the money must have been received by the sheriff, and their remedy must be against him. The complaint, however, shows an election to treat the redemption as fraudulent, and the relief urged in argument would be inconsistent with the theory of the complaint. It is further argued that the redemption made by Hill was ineffective, for the reason that the property was community property, and that no notice of the redemption was given to the wife of the community, appellant Sarah J. T. Carroll. The complaint shows, however, that. the husband alone was the judgment creditor, and that he alone was the execution purchaser. Pending the redemption period, the certificate of sale did not pass title, but it was only evidence of an inchoate interest which might or might not ripen into title. Singly v. Warren, 18 Wash. 434, 51 Pac. 1066, 63 Am. St. Rep. 896.

If therefore it should be presumed that the certificate of sale was evidence of a community interest in property, still, we think, it was not evidence of title to community real estate, but it belonged to the classification of personal property rights, and, as such, it was under the management and control of the husband. Notice to the husband was therefore sufficient, and the redemption certificate recites that notice was waived by the husband. It is true the complaint negatives the fact that the husband waived notice, but we have seen that he is concinded by lapse of time, and the recitals of the certificate therefore import verity so far as the hearing upon this demurrer is concerned. Moreover the wife joins with her husband in alleging in this complaint that the facts about the alleged fraudulent redemption were discovered by her in June. 1886. She is therefore in no better position to maintain this action than is the husband. It is argued that, inasmuch as the supplemental complaint avers that respondent IIill Tract Improvement Company has, since the commencement of this action, accepted a deed from appellants for a portion of the land that was sold under execution, it is now estopped to dispate appellants' rights as set forth in the original complaint. It may be.

if respondent has accepted a deed from appellants for certain land, that it might now, at least under scame circumstances, be estopped to deny its grantors' title to the particular property already conveyed to it; but it is not thereby estopped to deny appellants' title to other land the conveyance of which it has never accepted. It may be as well said argumentatively that the fact of respondents having accepted a conveyance for a part of the property only shows with as much conclusiveness that it has not recognized that appellants have any title to the remainder.

We think the court did not err in sustaining the demurrer, and the judgment is affirmed.

MOUNT, C. J., and FULLERTON, RUDKIN. and DUNBAR. JJ., concur. ROOT, and CROW, JJ., not sitting.

(44 Wash. 485)

STATE v. KNIFFEN. (Supreme Court of Washington. Nov. 24, 1906.) 1. WITNESSES-COMPETENCY OF WIFE-PROSECUTION OF HUSBAND.

Under 2 Ballinger's Ann. Codes & St. § 5994. providing that a wife shall not testify against the husband without his consent, but that the statute shall not apply to a crime committed by one against the other, the alleged first wife of defendant may testify against him on a prosecution for bigamy.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses. § 176.]

2. BIGAMY-BURDEN OF PROOF.

On a prosecution for bigamy, it is not necessary for the prosecution to show that the wife was competent to enter into the marriage relation and that there were no impediments to the marriage: the burden of showing the illegality of the marriage being on defendant.

JEd. Note.-For cases in point, see Cent. Dig. vol. 6. Bigamy, § 40.]

3. CRIMINAL LAW-DOCUMENTARY EVIDENCEAUTHENTICATION.

Ballinger's Ann. Codes & St. § 6010, provides that the record and proceedings of any court of the United States shall be admissible in evidence when duly authenticated by the attestation of the clerk or other officer having charge of the records of such court. On a prosecution for bigamy, the state introduced in evidence a copy of a marriage license and certificate of marriage in another state, the same being certified to by one who described them as copies of a record in his office, and who described himself as deputy clerk of the county and clerk of the circuit court thereof. Held, that the evidence was not competent as the license and certificates did not appear to be the record of any court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1019.]

Appeal from Superior Court, Klickitat County: W. W. McCredie, Judge.

J. B. Kniffen was convicted of bigamy, and he appeals. Reversed, and remanded for new trial.

W. B. Presby, for appellant. E. C. Ward, for the State.