The summons was served only on the defendants Joseph and Hattie Beeman, who, alone appearing, answered, denying upon information and belief the material allegations of the complaint, and, for a further defense, averring that Hattie H. Beeman was the owner of the mill, and Joseph H. Beeman of all the mines, described in the complaint; that the defendants Flanders and Beers were operating the mines under the written lease hereinbefore mentioned, which was executed prior to the time when either of the plaintiffs began their labor on the property, of which they had notice, and agreed not to claim any lien on the mining claims for any labor so performed, but that they would look to Flanders and Beers for the payment of any sums that might be due them. The reply having put in issue the allegations of new matter in the answer, the cause was referred to F. M. Calkins, who took and reported the testimony, which, when submitted, the court dismissed the suit because the defendants Flanders and Beers did not appear; that they were not served with process, nor was any showing made that they were not in Jackson county; and the plaintiffs appeal.

E. B. Dufur, for appellants. C. L. Reames, for respondents.

MOORE, J. (after stating the facts). It is contended by plaintiffs' counsel that, without any objection on the part of either of the Beemans, the cause was referred, and, the testimony having been taken in pursuance thereof, they are estopped to assert that Flanders and Beers should have been served with process, and hence an error was committed in dismissing the suit. The statute commands that all persons personally liable for the payment of the sum due for labor performed in operating or developing a mine, to secure which sum a lien is foreclosed, shall be made parties. B. & C. Comp. § 5672. In Osborn v. Logus, 28 Or. 302, 37 Pac. 456, 38 Pac. 190, 42 Pac. 997, in construing a similar provision in another section of the statute, it was ruled that, in a suit to foreclose a mechanic's lien, though the contractor ought to be brought in, if he could be served with process, he was not an absolutely indispensable party, and that, unless an objection for lack of parties was made by demurrer or answer, the defect was waived. In deciding that case, Mr. Justice Wolverton, in referring to another class of parties, says: "Subsequent lienors are considered necessary parties, but their absence from the record does not perforce of that fact, render the proceeding a nullity; but interested parties may require that they be brought in for their protection, and proper parties may be brought in if deemed necessary." Flanders and Beers, having leased the mining claims, and employed plaintiffs to assist in working and developing them, were personally liable

for the payment of the wages agreed to be paid therefor. If the lease executed by Joseph H. and Hattie H. Beeman was not recorded in the mining records of Jackson county before the work begun, their property was also liable to plaintiffs for the payment of such compensation. B. & C. Comp. § 5668. The purpose of the statute, in requiring persons personally liable for the payment of the labor performed in operating and developing a mine to be made parties to a suit to foreclose a miner's lien, was evidently not designed to exempt the property from liability for the work done, but to enable the owner of the mine, if compelled to pay the sums decreed to be a lien upon it, to have a judg ment over against the lessee, which he could enforce without instituting another suit therefor. The statutory requirement of making persons parties who are personally liable, which was enacted for the benefit of the mine owner, is not one in the enforcement of which the public has an interest, and therefore such owner can waive the advantage which the law confers. This he does when he fails to demand that the persons personally liable shall be brought in for his protection (Osborn v. Logus, supra), and, in the case at bar, as the Beemans did not object to the defect of parties until after the testimony was taken, they thereby voluntarily relinquished the right upon the exercise of which they insisted, when the cause was submitted. in dismissing which the court erred.

The record of the mining claims referred to in the lease and in the notices of liens was not offered in evidence, and it is insisted by defendants' counsel that it is impossible, from the transcript, to frame a decree so as to identify the property. It will be remembered that the answer admitted that the defendants Joseph H. and Hattie H. Beeman were the owners of the property described in the complaint. No issue in relation to the identity of the property was created, and, this being so, no necessity existed for offering in evidence the volume and pages specified in the lease and notices of liens, or certified copies of the mining journals of Jackson county relating to the property in question. Invoking the maxim, "Id certum est quod certum reddi potest," a decree referring to the volume and pages thus indicated will be sufficient for a description of the property, and an examination of such journal will probably enable the officer making the sale to place the purchaser in possession thereof. House v. Jackson, 24 Or. 89, 32 Pac. 1027.

Considering the case on its merits, the testimony shows that the plaintiff Alfred Lewis is entitled to the sum of $85.75, as claimed in his lien, with interest thereon from the time it was filed, together with the sum of $1.25 for recording the notice, and the further sum of $20 as a reasonable attorney's fee; and a decree will be here entered awarding to him such sums, and foreclosing his

lien therefor, he having testified at the trial that the sums so demanded were due him.

The plaintiffs M. L. Hall, Frank Cardwell, and John F. Troy did not appear as witnesses at the trial; the testimony showing that neither of them was then in Jackson county. The plaintiff Alfred Lewis, who was foreman of the mines, testified in their behalf as to the correctness of the liens filed by each, in respect to the several sums due; but he did not say, and probably could not testify, that no payments had been made to them, or either of them, by Flanders or Beers, after the liens were filed. As the lessors' property is to be subjected in this suit to the payment of debts contracted by the lessees, the burden was imposed on the lien claimants of showing that no payments had been made on account of their liens since they were filed; and, not having done so, the claims of Hall, Cardwell, and Troy must be disallowed.

The testimony shows that the plaintiff Thomas E. Jones commenced to work for Flanders and Beers two days after the lease of the mining claims was recorded in the mining journals of Jackson county. No lien is given for labor performed for a lessee on the mining claims of a lessor when the lease is so recorded before the work begins (B. & C. Comp. § 5668); but it is insisted by plaintiff's counsel that, though the instrument in question partakes of the nature of a demise, it was intended by the parties to evidence a contract of sale, and that upon the payment of $16,500 the title to the property was to be transferred to the lessees. The defendant Joseph H. Beeman, in answer to the question on cross-examination, "Wasn't it understood between you and Mr. Flanders and Mr. Beers, if they paid the $16,500 they were to have the property?" replied, "Yes, sir." Notwithstanding the testimony of this witness, we think the instrument, a copy of which was offered in evidence, clearly established the fact that it is what it purports to be-a lease of the mining claims and quartz mill; and, having been duly recorded before Jones began to work at the mine, he was not entitled to a lien on the property (Stinson v. Hardy, 27 Or. 584, 41 Pac. 116), and his claim is disallowed.

The plaintiff S. C. Lawrence, having been discharged by the foreman December 10, 1902, without having received any payment for his labor, and being without money, sold some groceries belonging to Flanders that were at the mine, realizing therefor about $5, for which sum he gave no credit when he filed his lien. At the trial, Lawrence, as a witness in his own behalf, testified that after the work was suspended at the mines he looked after the property about two weeks, and that he considered his care thereof of greater value than the sum realized from the sale of the groceries. If the supervision of the property constituted a proper charge against the mining claims, so as to

create a lien thereon, a statement thereof should have been included in the notice of lien, and credit given for the sum received from the sale of the groceries; assuming that Lawrence was authorized to dispose of the provisions. Not having done so, his lien notice did not contain a true statement of his demand, after deducting all just credits and offsets, and hence his claim is disallowed. Nicolai v. Van Fridagh, 23 Or. 149, 31 Pac. 288.

The decree of the court below will therefore be reversed, and one entered here in accordance with this opinion.

(47 Or. 156)

WOLFER v. HURST et al. (Supreme Court of Oregon. April 10, 1905.)

JUSTICES OF THE PEACE-FORCIBLE ENTRY AND DETAINER-RIGHT TO APPEAL-UNDERTAKING-EFFICIENCY ON FURTHER APPEAL.

1. Under B. & C. Comp. § 5754, relative to forcible entry and detainer, and providing that, if judgment be rendered against defendant, no appeal shall be taken by him until he shall give an undertaking for the payment of twice the rental value of the property from the rendition of the judgment until final judgment in the action, the undertaking given on appeal from a judgment of a justice of the peace to the circuit court is effectual on further appeal to the Supreme Court, and no further undertaking is necessary.

2. The section quoted impliedly gives a right to appeal from a justice's judgment in forcible entry and detainer.

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by George J. Wolfer against W. S. Hurst and another. From a judgment for plaintiff, defendants appeal. On motion to dismiss the appeal. Motion denied.

B. F. Bonham and Carey F. Martin, for the motion. A. M. Cannon, opposed.

MOORE, J. This is a motion to dismiss an appeal. An action of forcible entry and detainer was commenced in a justice's court of Marion county, to recover the possession of about 80 acres of land, and the cause, being at issue, was tried, resulting in a judgment for plaintiff, as demanded in the complaint; and defendants appealed to the circuit court for that county, giving an undertaking therefor, and also an undertaking for the payment to plaintiff of twice the rental value of the premises from the rendition of the judgment until final determination of the action, if such judgment should be affirmed on appeal. The appeal was tried in the court to which the cause was taken, and a judgment for the restitution of the premises was rendered against the defendants, who on January 10, 1905, served and filed a notice of appeal, and gave and filed an undertaking therefor, and 18 days thereafter, without notice to plaintiff, secured an order of that court, but of a different department, fixing the amount of a stay bond, which they

also gave, conditioned that they would not commit or suffer any waste, and if the judgment, or any part thereof, should be affirmed, they would pay the value of the use of the premises from the time of taking the appeal until the redelivery of the possession of the land, not exceeding the sum of $250. The bill of exceptions having been settled, certified, and sent up, the motion referred to was interposed on the grounds that this court did not have jurisdiction of the cause, for that no undertaking for the payment of the rent of the premises was given within the time prescribed, and that no right of appeal exists from judgments rendered in actions of this kind.

Considering the objections to the jurisdiction in the order indicated, the statute relating to appeals in actions of forcible entry and detainer is as follows: "If judgment be rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff of twice the rental value of the real property of which restitution shall be adjudged from the rendition of such judgment until final judgment in said action, if such judgment shall be affirmed upon appeal." B. & C. Comp. § 5754. An examination of the section of the statute quoted will show that the undertaking required to be given for the payment of the rent stipulates that the term for which the stay bond shall operate as indemnity for the use of the demanded premises is from the rendition of the judgment in the justice's court until final judgment is given in the action, if such judgment is affirmed. The term "final judgment" is generally used as a synonym for an appealable order; that is,. one which not only affects a substantial right, but one which, in effect, determines the action in the court pronouncing the judgment. B. & C. Comp. § 547; State v. Brown, 5 Or. 119; Basche v. Pringle, 21 Or. 24, 26 Pac. 863. The term "final judgment," as used in the statute under consideration, cannot apply to the determination of the cause in the justice's court, for the language assumes that such judgment has been given therein, and provides that, on an affirmance thereof, the payment to the plaintiff of twice the rental value of the land of which restitution has been awarded shall be guarantied by the terms of the supplementary undertaking. A fair interpretation of the phrase "until after final judgment in said action" means that the undertaking stipulating for the payment of the rent shall afford compensation to the plaintiff for the use of the premises from the time judgment is rendered in the justice's court for the restitution of

the land until the cause is finally determined on appeal. Such a construction of the statute would make the undertaking given for the payment of twice the rental value of the land effectual for all purposes until the judgment rendered in the justice's court becomes final either by an affirmance or a reversal thereof in the circuit or supreme court.

The object of the statute requiring the giving of a stay bond was evidently not designed to impose needless burdens upon the defendant when he appeals from a judgment rendered against him in a justice's court for the restitution of land of which he is in possession, but to secure to the plaintiff in such action the payment of the rent until the right to the possession becomes final, and, as the statute in effect so provides, no necessity existed for the giving of an undertaking to stay the enforcement of the judgment rendered in the circuit court; the undertaking given therefor in the justice's court as a condition precedent to the right of appeal being sufficient for that purpose.

St.

The right to appeal from a judgment rendered in a justice's court in an action of forcible entry and detainer is not free from doubt. The section of the statute hereinbefore quoted is the only provision directly relating thereto. The Legislative Assembly of the territory of Oregon passed an act January 12, 1854, creating courts of justices of the peace, conferring on that tribunal jurisdiction of such actions, and granting appeals from judgments rendered therein. Or. 1855, p. 286 et seq. An act was passed October 11, 1862, conferring upon county courts exclusive jurisdiction of actions of forcible entry and detainer, and allowing appeals from judgments given in such actions. Deady's Gen. Laws Or. 1854-64, §§ 868-875. Justices' courts were invested with jurisdic tion of such actions by an act passed October 24, 1866 (B. & C. Comp. § 5745 et seq.), and the only right to review a judgment rendered therein is to be implied from the section of the statute which provides that no appeal shall be taken by the defendant, until he shall have given an undertaking to pay to the plaintiff twice the rental value of the premises of which restitution has been awarded, in addition to the ordinary undertaking for an appeal (Id. § 5754). In Thompson v. Wolf, 6 Or. 308, the court, in construing the act of October 24, 1866, and referring to a provision thereof now incorporated in B. & C. Comp. as section 5754, though the question was not involved, says: "By section 10, an appeal is allowed and must be taken to the circuit court." The dictum thus announced has been observed in the trial of appeals in this court in actions of forcible entry and detainer commenced in justices' courts in the following cases: Taylor v. Scott, 10 Or. 483; Harrington v. Watson, 11 Or. 143, 3 Pac. 173, 50 Am. Rep. 465; Aiken v. Aiken, 12 Or. 203, 6 Pac. 682; Danvers v.

Durkin, 14 Or. 37, 12 Pac. 60; Belfils v. Flint, 15 Or. 158, 14 Pac. 295; Rosenblat v. Perkins, 18 Or. 156, 22 Pac. 598, 6 L. R. A. 257; Hislop v. Moldenhauer, 21 Or. 208, 27 Pac. 1052; Smith v. Reeder, 21 Or. 541, 28 Pac. 890, 15 L. R, A. 172; Forsythe v. Pogue, 25 Or. 481, 36 Pac. 571; Twiss v. Boehmer, 39 Or. 359, 65 Pac. 18. The right to appeal from such judgments has never been questioned until quite recently. Heiney v. Heiney, 43 Or. 577, 73 Pac. 1078; McAnish v. Grant, 44 Or. 57, 74 Pac. 396; Dechenback v. Rima (Or.) 78 Pac. 666. The judgment of an inferior court ought not to be reviewed unless the right to do so is clearly granted by statute, but, where appeals have been unquestionably tried for such a length of time as to establish a method of procedure, the rule promulgated should not be changed without just cause, resulting from manifest injustice to the parties to actions. Butler v. Smith, 20 Or. 126, 25 Pac. 381; Lewis & Dryden v. Reeves, 26 Or. 445, 38 Pac. 622.

It is difficult to discover how any unfairness can arise from reviewing a judgment given in a justice's court in an action of forcible entry and detainer, except the possibility of a reversal, which would reasonably show that such judgment was erroneous, and therefore unjust. The rule to be extracted from the cases decided by this court, to which attention has been called, is that an appeal from a judgment given in a justice's court in an action of this kind may be instituted and prosecuted to final determination by either party; but, if taken by the defendant, he must, in addition to the undertaking therefor, also give an undertaking for the payment to the plaintiff of twice the rental value of the premises of which restitution has been awarded.

As the right to an appeal in such cases is fairly to be inferred from the statute, and as the cause of justice would, in our opinion, be promoted by continuing the practice so long observed, the motion to dismiss the appeal is denied.

(46 Or. 611)

RYAN v. GALVIN et al. (Supreme Court of Oregon. April 10, 1905.)

DEEDS CONSIDERATION-FUTURE SUPPORTCANCELLATION.

In an action to set aside a deed given in consideration of future support, evidence, considered in connection with the circumstances and conduct of the parties, held to justify the setting aside of the deed.

Appeal from Circuit Court, Multnomah County; M. C. George, Judge.

Action by Matthew Ryan against Michael Galvin and another. From a judgment for plaintiff, defendants appeal. Affirmed.

James H. Murphy and Frank Schlegel, for appellants. James Gleason, for respondent.

PER CURIAM. On August 11, 1902, the plaintiff on one part, and the defendants on

the other, entered into a written contract, whereby the defendants, in consideration that the plaintiff would execute and deliver to them his deed to lot 8, in block 18, in the city of Portland, Or., the same not to become effective until his death, agreed to provide for plaintiff a home with them during his life, to furnish him board, lodging, and comfortable clothing, to do his washing and mending whenever required by him, and when dead, to see that he was given a Christian burial; also to erect within five years a monument to the memory of Ellen Ryan, the deceased wife of plaintiff, at a cost of $300, and place about it an artificial stone coping at an additional cost not to exceed $30; but it was stipulated that in case the plaintiff was able to work or could obtain the money, then that he should erect the monument and coping at his own expense. It was further agreed that plaintiff should allow the defendants to occupy the premises designated as No. 356 Sacramento street, on said lot 8, rent free until his death, when the defendants should become the owners of the entire lot by virtue of the deed aforementioned. Then follows this stipulation, which very well characterizes the agreement: "Matthew Ryan, the party of the second part, wants the parties of the first part to act as his custodians of his money, rents, or money he may earn by work, when he wants to give Mrs. Ellen Galvin his money to keep for him; but he should always like to have given to him a dollar or so when he needs it. The rent of house No. 354 Sacramento street he will collect himself, and he wants the privilege of working at any work he may get and collecting his own wages. He also agrees to pay the taxes on the two houses and lot 8, in block 18, and the insurance on the houses while he has an income; but should he fail to have an income by rent or work, the parties of the first part will have to pay taxes and insurance rates." The deed to the lot was executed and delivered by Ryan to the defendants concurrently with the signing of the contract. It is in the usual form of a warranty deed, except that it contains a provision that it shall not operate to take effect until after the death of the plaintiff. The purpose of the present suit is to obtain a cancellation of both these instruments, on the ground of a failure on the part of defendants to observe the conditions of the contract in furnishing plaintiff with a home, board, etc. A brief narrative of the events leading up to the negotiations and of those which followed will sufficiently indicate the situation.

The plaintiff is a laboring man about 57 years of age, illiterate, and without business experience. He accumulated the means with which to purchase the property in question from wages earned at common labor, such as hod carrying, digging, shoveling, and the like, and it cost him in the neighborhood of $1,800. After the death of his wife, which

He

occurred about the first of the year 1902, he made his home with a neighbor, but, owing to some trouble in the family, he was required to change his place of abode, and then went to live with the defendants, they residing at the time on Grand avenue. This was about June 21st, and he continued to make his home with them at an agreed rate of $4 per week for his board and lodging, not including his washing, until August 11th, the date when the agreement was signed. There is some dispute as to whether the negotiations resulting in the present agreement were really begun before the first arrangement was made for board and lodging, but, however this may be, it is clear that steps were taken by plaintiff prior to its final consummation to have one of his houses vacated, he having two upon the lot in question, so that defendants might occupy it. Provisionary to taking possession, defendants, with the concurrence of plaintiff, built an addition to the house, and made other improvements at large expense, and their subsequent occupancy has been in pursuance of the agreement. Just when this began is not definitely stated, but it must have been before the 1st of September. Under their new relations plaintiff continued with them for nearly 13 months, when he left, and refused further to be bound by the agreement. complains that after the lapse of some five or six months the defendants began treating him badly, and with contempt and contumely; that they did many things to harass and annoy him, and to make their house disagreeable and unpleasant for him, and manifested such a perversity of disposition towards him as to cause him to feel that it was not at all agreeable to them for him to be about, and eventually compelled him to quit their abode and to seek a home elsewhere. There is pertinent evidence in the record to support this charge. The husband said to him at one time, "You savage, I own that place now; I can do as I like with it;" and spoke harshly to him at other times, while the wife treated him coolly and disdainfully, evincing much displeasure and disgust in having him about. The defendants protest, on the other hand, that they did everything they could within reason to make their home pleasant and agreeable for him, and that they have complied in every particular with their stipulations under the agreement; but that the plaintiff by his own conduct, through hard drinking, has made it difficult to care for him, and that his discontent is the result of his own acts, and not theirs. With all this, however, one thing is very certain: that is, that the differences between the plaintiff and defendants are wholly irreconcilable, and that plaintiff would not again be content to live with them, whatever they might do for him. The plaintiff further complains that defendants were not to record the deed until his death, but that, in violation of their promise to that effect,

they procured it to be placed on record March 31, 1903. The defendants deny the arrangement, and allege that it was recorded in pursuance of legal advice and for their own protection. We are satisfied from the fact that the deed was not recorded at once upon its execution and delivery that plaintiff's understanding is the correct one. The breach, however, would not alone warrant the relief sought, and only becomes important for consideration in connection with the other matters of misunderstanding between the parties. He also complains that the agreement was not drawn as the parties had previously understood that it should be, but in this he is not sustained by the evidence.

We are impressed that plaintiff's own conduct has had much to do with his discontent, and that he cannot be held blameless for the state of the differences we find existing between him and the defendants; but, while this is true, the defendants have no doubt made their home unpleasant for him both by word and act, and have contributed in no small measure to his dissatisfaction. Perhaps their conduct in that particular, in view of the provocations of the plaintiff, is not sufficient of itself to warrant the relief sought; but in further consideration that he was ignorant and unfamiliar with business affairs; that at the time the contract was entered into he was in distress on account of the recent loss of his wife; that he was apprehensive that he might some time go to the poorhouse; that the contract itself is unusual of its kind, as being made between strangers, without ties of blood or kindred, and is a hard one for the plaintiff-we are impelled to the conclusion that he ought to be permanently relieved of the situation, while at the same time the defendants ought to be placed in statu quo so fully that they shall lose nothing by the unfortunate arrangement. The decree of the circuit court is adequate to the purpose in both particulars, and will therefore be affirmed. Neither party to the appeal is entitled to costs and disbursements in this court. Affirmed.

(46 Or. 401)

MOORE, SCHAFER SHOE MFG. CO. v. BILLINGS et al.

(Supreme Court of Oregon. April 10, 1905.) CREDITORS' SUIT-RIGHT TO MAINTAIN-TRUSTEES IN BANKRUPTCY-ATTACH

MENT-LIEN-WAIVER.

1. An attachment lien is waived, and the goods are liberated from the levy, where the court renders a simple money judgment and fails to enter an order directing a sale of the property.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attachment, §§ 593, 749, 969.]

2. A creditors' bill instituted subsequent to an adjudication in bankruptcy against the debtor to set aside a chattel mortgage and sale of a stock of merchandise does not, give rise to a lien in favor of the creditor filing the same on the goods sought to be reached.