a conditional interest, and therefore not included in the contract of insurance. Geiss v. Insurance Co., (Ind. Sup.) 24 N. E. Rep. 99; Insurance Co. v. Weaver, (Md.) 17 Atl. Rep. 401. The respondent accepted this policy with all its provisions and conditions, and it would be neither reasonable nor equitable to permit her, after she has violated one of its conditions as to a part of the risk, to now assert that this condition only affected that particular portion of the risk to which the breach related. Wood, Ins. 165. To hold the appellant liable upon this policy would be to impose upon it an obligation which it never agreed to assume, and would be equivalent to making a contract for the parties different from that which they themselves made, and then enforcing it against one of them for the benefit of the other. This the court must decline to do. Insurance companies, like private individuals, have a perfect right to make such contracts in relation to their business affairs as will best subserve their own interests; and contracts with such companies, when voluntarily and freely entered into, are equally binding upon both the assured and the insurer, and, if they are violated by the former, the latter is thereby released from all obligations thereunder.

One of the defenses interposed by the defendant to each of the causes of action set forth in the complaint was that the plaintiff, for the purpose of securing the amount of the insurance named in the policies, unlawfully and fraudulently caused and procured the property to be burned. No direct and positive evidence was introduced to establish this defense, but certain facts and circumstances were shown tending, to some extent, to sustain it. The court charged the jury generally to the effect that the plaintiff could not recover if she caused or procured or assented to the destruction of the insured property by fire, but refused to charge them, as requested by the defendant, "that fraud may be proved by circumstantial evidence, as well as positive proof. When fraud is charged, as is done in this case, express proof is not required; it may be inferred by strong presumptive circumstances." The court also refused to give the following instruction: "No. 13. Whenever fraudulent acts are either done or attempted, the parties guilty thereof usually conceal their acts, and the direct and positive proofs thereof rest wholly in the breasts of the guilty parties. In such cases, therefore, the usual and ordinary proofs by which such frauds, if fraudulent acts be attempted or done, are established, are the facts and circumstances surrounding the transactions. Such facts and circumstances, in order to be sufficient to establish the fraudulent act or interest in issue in any given case, must be such as will convince the mind of an ordinarily prudent person that the party charged is guilty of such fraud, and such as

is not susceptible of any natural and reasonable explanation consistent with the honesty and integrity of such person in respect to the matters in issue." These requests were pertinent to the evidence and to the issue raised by the pleadings, and substantially embodied the law concerning the effect to be given to circumstantial evidence where fraud is attempted to be proved. 2 Thomp. Trials, 1978; Lawson, Pres. Ev. p. 100; Kempner v. Churchill, 8 Wall. 369. And we think they should have been given, either in substance or as requested, in order to aid the jury in determining a controverted question which they were required to pass upon in arriving at their verdict.

Other alleged errors are relied on by the appellant as grounds for reversing the judgment appealed from, but, as the same questions are not likely to arise upon another trial, it is neither necessary nor profitable to discuss them at this time. The judgment is reversed, and the cause remanded for a new trial, in accordance with this opinion.

A complaint in an action by five lien claimants to foreclose their liens set out the claim of each as a separate cause of action, and asked for interest. There was a judgment in favor of all the plaintiffs, allowing interest. On appeal the question of interest was not raised. The judgment of the supreme court was that the judgment be set aside, and the cause remanded, with directions to enter a new judgment in favor of two of the plaintiffs for the "amounts claimed," with certain allowances for filing liens, and for costs and attor-. neys' fees, and that, as against the other plaintiffs, the complaint be dismissed. Held, that the judgment of the supreme court authorized in

terest.

Petition by defendants in case of the Fairhaven Land Company and others against R. C. Jordan and others for mandate to the trial court. Petition denied.

Bruce & Brown, for appellants. Cole & Romaine and Kerr & McCord, for respondents.

DUNBAR, C. J. This is a petition for a writ of mandate to direct the superior court of Whatcom county to enter judgment in the case wherein the Fairhaven Land Company et al. are plaintiffs and R. C. Jordan, Carmi Dibble, and James P. Demattos are defendants, in accordance with the opinion of this court, filed February 14, 1893. 32 Pac. Rep. 729. The action was brought to foreclose five mechanics' liens upon the property of the defendant Demattos. The

lien claimants joined in their complaint, which set out each claim as a separate cause of action. Judgment was rendered in the court below in favor of all the lien claimants. After reviewing the action here on appeal, the final judgment of this court was expressed in the opinion filed in the following language: "The decree will be set aside, and the cause remanded, with directions to the superior court to enter a new decree in favor of A. E. Esterbrook and the Mechanics' Mill & Lumber Company for the amounts claimed, with $1.50 and $3.25, respectively, paid out for filing liens, $75 to each as an attorney's fee, and the costs of both courts. As against the other plaintiffs, the complaint will be dismissed, with costs in both courts to appellants." The petitioner insists that, in conformity with the judgment of this court, it is the duty of the lower court to enter judgment in favor of the respective claimants for the sums set forth in their respective claims, with interest thereon after the rendition of the judgment of this court, and without interest thereon prior to the rendition of the judgment aforesaid, and that said court be directed to order and require to be entered a judgment for the face of the claims of said respective claimants, without any interest, and for no other or different sum than the principal claimed by them in their respective claims.

With the view we take of this case, it is not necessary to decide whether or not this court has power to compel a lower court to enter a judgment more specific than the judgment of this court. The petitioner cites us to many authorities to prove that interest cannot be recovered in cases of this kind, but we express no opinion on this question. We are simply called upon to construe the opinion of this court heretofore rendered. Upon the argument of the original case in this court, the question of interest was not raised. No error of the court below in allowing interest was assigned, and it cannot be raised now for the purpose of construing the opinion of this court, which was written without an investigation of that question or without reference to it. The judgment appealed from allowed interest on the claims of Esterbrook and the Mechanics' Mill & Lumber Company. The claims set out in their complaint were for interest, and, while this court reversed the decree, it was virtually an affirmance so far as those two claimants were concerned, and the judgment was not modified as to them only in so far as it was especially mentioned; and, when the order of the court is "that the decree shall be entered in favor of these claimants for the amounts claimed," the language must be construed with reference to the amounts claimed, which, we have seen, include interest. The petition will be denied.

HOYT, SCOTT, and ANDERS, JJ., concur. STILES, J., not sitting.

(6 Wash, 603) MANSFIELD v. FIRST NAT. BANK OF WHATCOM et al. (Supreme Court of Washington. July 6, 1893.) DEPOSIT OF MONEY IN COURT-CONSENT OF PARTIES LIABILITY-COSTS.

1. Where goods, for the recovery of which an action has been brought, are converted into money, and the money is, by consent of all parties, placed in the hands of an officer of the court, it is at the risk of one party as much as the other.

2. Where plaintiff recovers in such action, he is entitled to costs, as he would have been if the goods had not been converted, and the proceeds deposited with the officer of the court.

Application by August Mansfield, assignee for the benefit of creditors of Burrows & Anderson, plaintiff in an action against the First National Bank of Whatcom and R. L. Sabin to recover property assigned him, for writ of mandamus to the trial court to enter a certain judgment for him. Application denied.

Bruce & Brown, for petitioner. Kerr & McCord and Cole & Romaine, for respondents.

HOYT, J. The application for a writ of mandamus must be denied. The judgment which relator seeks to compel the lower court to enter is not authorized by the decision of this court. The opinion heretofore rendered (32 Pac. Rep. 789, 999) clearly shows that this court recognized the fact that it appeared from the record that the goods as to the custody of which the original controversy was commenced had been converted into money, and that the proceeds were in the hands of an officer of the court by consent of all the parties to the action. Such peing the case, it must be held in all proceedings after such conversion that the money took the place of the goods, and that, as it was in the hands of an officer of the court by consent, it was as much at the risk of one party as of the other; and in all litigation thereafter the only question to be decided was as to which of the parties should receive said moneys from such officer, and that thereafter neither of them could be held responsible for the safekeeping thereof as against the other. It will thus be seen that the judgment which the petition and answer show that the court below was willing to enter was substantially the one directed by this court, with the exception that it does not appear that it proposed to enter a judgment in favor of the assignee, as against the other parties to the action, for costs; but from what was said upon the argument we are satisfied that a bare suggestion will induce the court below to so modify its judgment entry as to cover the question of costs. It is clear that since, if the goods had not been converted into money, the assignee would have been adjudged to be entitled to the possession thereof, and, as an incident to such judgment, would have recovered his costs against the

adverse parties, he is entitled, in addition to having the proceeds of such goods turned over to him, to have judgment for his costs.

DUNBAR, C. J., and SCOTT and ANDERS, JJ., concur. STILES, J., not sitting.

(7 Wash. 33)

HILL V. YOUNG et ux.' (Supreme Court of Washington. July 13, 1893.) PARTITION-SUIT IN EQUITY-TITLE- PLEADING— HUSBAND AND WIFE · COMMUNITY PROPERTYRECORD ON APPEAL.

1. Under Code Proc. § 583, relating to par tition, and providing that "the rights of the several parties plaintiffs as well as defendants may be put in issue, tried and determined in such suit." a suit in equity for partition should not be dismissed, as at common law, because defendant is in possession, claiming adversely, but the court should determine the title.

2. It is not necessary that a complaint for partition allege necessity for a sale in lieu of partition, or that partition cannot be made, as Code Proc. § 584, provides that if such facts appear from the evidence, without allegations in the pleadings, a sale may be ordered.

3. Where a wife has been dead for eight years, leaving an only child and a husband surviving, and there has been no administration on her estate or upon the community property, it will be presumed, in favor of the child, that there are no community debts, or necessity for administration, and that he is entitled to possession of his share of the community real property as heir of his mother.

4. As Act 1869, declaring certain property acquired by husband or wife community property, and giving the husband power to dispose of the same, did not provide for its disposal on the death of a spouse as was done by later laws, such property would have been administered according to the rules of those states where such property and laws existed; and these rules were that the community was dissolved by the death of either spouse, and that the right of disposal in either spouse then ended, and the property became vested by moieties in the survivor and children.

5. Production of a deed to a husband during his wife's life for a valuable consideration is prima facie proof that the land was community property, and the burden of proving the contrary is on the husband's grantees.

6. In an equity case an objection that the reply did not meet certain allegations of the answer is obviated by defendant's failure to prove the allegations.

7. Where, in a suit in equity for partition, the judge erroneously transfers the case to another department, before another judge, for a jury trial, which is had, and by mandamus the equity judge is afterwards required to proceed with the case, which he does by dismissing the action, and on appeal each judge certifies to a statement of the facts before him, the statement of the equity judge, only, will be considered.

Appeal from superior court, King county; I. J. Lichtenberg, Judge.

Suit by George L. Hill against A. B. Young and Hulda Young for partition. From a judgment of dismissal, plaintiff appeals, Re versed.

Solon T. Williams, for appellant. Preston, Albertson & Donworth, for respond

ents.

'Rehearing denied.

STILES, J. 1. This is an appeal from a judgment of dismissal rendered in a partition suit, commenced as a suit in equity. The judge sitting for the hearing of equity causes heard the testimony of the parties until each had rested, and then, finding that the cause involved the determination of facts concerning the title which were proper to be submitted to a jury, instead of calling a jury himself, made an order transferring the case to another department of the same court, where, in the orderly disposition of the business of the court, jury cases were usually heard. In this second department, special issues covering the question whether the land sought to be partitioned had been acquired by the grantor of the respondent A. B. Young with money which was his separate property, or with money which was the community property of the grantor and his wife, were submitted to a jury, and determined. Upon application to each of the judges who heard the case for judgment upon the special findings, each declined to act, upon the ground that the other had the only jurisdiction in that matter; and the mandamus case of State v. Lichtenberg, (Wash.) 30 Pac. Rep. 659, was resorted to to settle the question. In obedience to the writ of mandate, the judge of the equity department proceeded to a final determination by dismissing the action. Upon this appeal from that judgment the first point made is by the respondents, upon their motion to strike the statements of facts, of which there are two. Each of the judges has certified to a statement as containing all the facts, etc., in the case before him. but, of course, not as containing any facts occurring before his associate; and the argument made in favor of the motion is two-edged, for it is urged that, inasmuch as neither judge has certified to all the facts, there is no complete statement certified by either, and therefore no statement upon which this court can review the case. Neither party took the position, exactly, but it seems to us that the simplest way out of the matter will be to entirely ignore the There statement concerning the jury trial. was but one legal trial, and that was the one before the equity judge; the proceeding taken to place the case before a jury having been entirely irregular and unwarranted, in so far as it attempted to transfer the case to a department presided over by another judge. We would not be here understood as holding that the judges, in counties having more than one judge, may not refer the entire hearing of a case, or of any integral part of a case, to some other judge. But there can be no propriety in sending a part of a trial on the merits into another department, or, after the trial has progressed, in sending the whole case to some other judge, merely because there are found to be questions which might better be submitted to a jury. In this instance

the case had been fully heard, and submitted for final determination of the question of title, before the order to transfer was made upon the court's own motion, and all benefit of the hearing was threatened to be lost, which threat was so far realized that upon the jury trial the most important witness had gone home to another state, whence he refused to return. Holding these views, we shall sustain the motion to strike the statement of the jury trial, and retain the other as the statement in the case.

2. The complaint shows, on the face of it, that the respondents had been since 1883 in possession of the land sought to be partitioned, under a conveyance of the whole tract from the father of the appellant, who claimed a half interest, as sole heir of his mother, deceased in 1883, before the conveyance. These facts, respondents claim, precluded any suit for partition until there had been an action at law to try title. Our statute (Code Proc. § 577) provides: "When several persons hold and are in possession of real property as tenants in common," there may be a partition; and the common-law rule is well settled that, where the party seeking partition has been ousted of possession by his alleged tenant in common under a claim of adverse title to the whole estate, equity will not determine the legal rights of the parties. Freem. Coten. § 447. Where the pleadings of the defendant disclosed the adverse claim, the practice was to stay the partition proceeding until the plaintiff got his judgment for possession at law, (Brown v. Cranberry Co., 40 Fed. Rep. 849;) but where the complaint itself failed to allege possession, or, as in this case, alleged adverse possession in the defendant, naturally, a dismissal followed. Such has been the construction under statutes having the same language as that above quoted. Florence v. Hopkins, 46 N. Y. 182. Freem. Coten. § 450, however, shows that the rule has been to the contrary in Massachusetts and Maine, and closes thus: "In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible. Wherever the question has recently arisen as a new question, the answer to which the courts were free to give without consulting decisions made at an early day, when the common-law rules were more potent than at present, it has been resolved in favor of taking jurisdiction whenever the complainant shows himself seised of the requisite title, whether the lands sought to be partitioned are held adversely to him or not." This new practice has long been in vogue in California, where Bollo v. Navarro, 33 Cal. 459, and Martin v. Walker, 58 Cal. 590, were decided; and it would seem to be the only rational practice under a Code, especially when our Code Proc. § 583, is considered, that section providing as folv.34P.no.1-10

lows: "The rights of the several parties plaintiffs as well as defendants may be put in issue, tried and determined in such suit." This law exists in California, and the court, in Martin v. Walker, alludes to it as an additional reason for its ruling, confirming many preceding cases on the same subject.

3. It was not necessary to allege that there was necessity for a sale in lieu of partition, or that partition could not be made without great prejudice to the owners. Code Proc. 584, provides that if such a state of facts appears from the evidence, without allegations in the complaint, a sale may be ordered.

4. There had been no administration of the estate of Mrs. Hill, deceased. We hold, however, that where the wife died in 1883, leaving an only child and her husband surviving, and there had been no administration upon her estate, or upon the community property, there was a clear presumption in 1891 that, as to the community real property, there was no necessity for administration, and that the right of the child to the possession of his share in the community real estate, as heir of his mother, was complete. The husband alone has the power to manage and control community real property, and he alone can incur indebtedness which would become a charge upon such property, except for family necessities. These are his debts, and to him they are presented for payment. Statutes of limitation will run against them while he lives and remains in the state; and after so long a time, and no petition for administration having ever been filed, it ought to be presumed, in favor of the child, either that there were no community debts, or that they have been paid or barred. We so rule in full view of Balch V. Smith, 4 Wash. 497, 30 Pac. Rep. 648.

5. The land in controversy was acquired in 1871, being conveyed to the husband by deed of purchase. The act of 1869, "defining the rights of husband and wife," declared that property acquired by either husband or wife, except that acquired by gift, bequest, devise, or descent should be "common" property. Section 2. It also provided that the husband should have the same absolute power of disposal of the common property as he had of his separate estate. Section 9. Respondents maintain that this power to dispose was a vested right in the husband, which could not be taken away by any subsequent statute. But it is not necessary to decide this point. The act of 1869, having declared certain property "common" property, did not make provision for the disposal of such property upon the death of either spouse, as was done by later laws on the same subject; but we think that, without anything further than was contained in that act, the courts of the territory would have been bound to administer upon such property, after the death of husband or wife, according to the established rules of those

states and countries where common or community property laws had existed. The first and cardinal of such rules was that the community was dissolved by the decease of either spouse; next the right of disposal in either spouse was ended; and, third, the property became vested by moieties in the survivor and the children. Therefore, upon the death of Mrs. Hill, in 1883, even if the act of 1869 was the only law applicable to this land, the right of the husband to dispose of the whole estate terminated. And it may be further stated that the purchaser, in this instance, knew of the marriage relation which existed between his grantor and Mrs. Hill, and knew, also, that the appellant was their only child.

6. Whatever objections may have been well founded as against the sufficiency of the reply are obviated by the fact that this was an equity cause, and that upon the trial the respondents wholly failed to substantiate the allegations of their answer, which they claim were not met by the reply.

7. Appellant produced the deed to his father, which showed on its face a conveyance of land for a valuable consideration, and, prima facie, the land conveyed was common property. Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. Rep. 398. The burden, then, was upon respondents to show that the money paid for the land was the separate property of John S. Hill. The Hills were married in 1859, at which time the husband owned one-third of a small steamboat, worth about $2,000. In 1860 the interest in the steamer was exchanged for 50,000 feet of lumber, worth about $1,250. The lumber was sold, and $800 of the money derived therefrom. was used to buy a farm in King county. In 1866 the farm was sold for a cash payment of $900, and a credit which was never collected. This $900 was perhaps used to pay part of the cost of a steamboat called the "Gem," the whole cost of which was between three and four thousand dollars. The testimony of Hill, as to where he got the balance of the money paid for the boat, was that "he didn't know; he expected he made it somewhere." He owned the Gem until 1872, and from the time he bought her, about, 1866, until 1872, he operated her on Puget sound, himself acting as captain. Over and above the operating expenses, he received about $100 a month for his labor and the earnings of the boat; and he testified that the money he paid for this land must have been money acquired from his use and operation of the Gem, as he was then in no other business. But, again, he said that in the years in which he was not steamboating-1860 to 1866-he made money right along in other business; that he never kept any account of any moneys made in any transaction; and that he could not tell whether his money came from his steamer, or whether it was money made before.

Under every consideration of the law, such a state of facts left it entirely uncertain whether the property which Capt. Hill owned before marriage had anything to do with earning him anything in 1871, and the presumption of the deed was undisturbed.

Upon the whole case, therefore, we are of opinion that the court erred in dismissing the action, and that the cause should be remanded for an interlocutory judgment establishing appellant's title to an undivided one-half of the tract in question, and his right of possession as tenant in common with the respondents, and for further proceedings in the matter of the partition. So ordered.

HOYT, SCOTT, and ANDERS, JJ., concur. DUNBAR, C. J., concurs in the result.

(5 Wash. 621) WILLSON v. NORTHERN PAC. R. CO. (Supreme Court of Washington. May 20, 1893.) CARRIERS-EJECTION OF PASSENGER-DAMAGES.

In an action for wrongful ejection from a train, it appeared that plaintiff had purchased of a connecting carrier a ticket to S., on defendant's road, and that defendant's ticket exchanger, by mistake, gave plaintiff, in exchange for her ticket, one only to M. When the train reached M. the conductor offered to carry plaintiff, without a ticket, to the end of his division, and that in the mean time he would try to correct the error by telegraphing, but advised plaintiff that it would be less trouble for her to buy a ticket to S., and that she would afterwards get her money back when the facts could be ascertained. Plaintiff not having sufficient money to buy the ticket, a fellow passenger offered to loan her the amount. She refused to accept such offer, or to ride to the end of the division without a ticket, but asked the conductor to put her off the train. The conductor said, "Come on, then," and walked out, followed by plaintiff. Held, that plaintiff was entitled to no more than nominal damages, aside from the cost of her ticket from M. to S. Stiles and Hoyt, JJ., dissenting.

Per

Dissenting opinion. For majority opinion, see 32 Pac. Rep. 468.

STILES, J. I dissent. With the law of this case, as laid down by the majority of the court, I have no controversy. The weight of authority in such cases is that where a common carrier, by mistake, gives a passenger a ticket short of the destination for which he has paid for transportation, the action is in case, for the tort in the company's failure to perform what was its duty as a carrier; and it is also well established that, where there are circumstances such as would cause inconvenience, distress, or mortification to the passenger, the measure of damages includes compensation therefor. But I deny that this case furnishes any facts sufficient to justify the verdict rendered, or even the judgment entered, upon any theory of compensation. The evidence shows that the mis