claimant. It is evident that such a change in the relations of the parties should not be made without giving the other joint creditor an opportunity to participate in the proceedings and insist upon the payment of the whole claim, and upon his right at that time to his share of the moneys collected. We have no doubt that the joint claimants and their debtor might make any agreement between themselves that was satisfactory to them, as relating to the payment of the balance of the claim after the demands of the garnishing creditors are satisfied; but, for the protection of all parties, the other joint claimants should be brought in, or at least given an opportunity to come into the proceeding to protect their rights, and also to the end that they should be thereby concluded as against the garnishee to the extent of the amount recovered of him.

From the decisions, it looks as though in some instances unnecessary hardships are placed upon a garnishee in such a proceeding, where he has no direct interest, as between the parties, in requiring him to act at his peril to see that the garnishment proceeding is properly instituted and a valid judgment rendered against him, or that otherwise a payment thereunder would be no protection to him in an action by the debtor in the principal action. This could be obviated in all cases by making such principal defendant a party to the garnishment proceedings, where he is 129 not one, so that the whole matter could be determined and the rights of all parties concluded and the garnishee thus effectually protected.

Section 150 of the Code of Procedure provides that the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights. But when a complete determination cannot be had without the presence of other parties, the court shall cause them to be brought in. This statute not only gave the right or power to bring in the other joint claimants in this instance, but, in our opinion, it should be held as making it obligatory, as such seems to be the intent of the provision. It is true that, in Marx v. Parker, 9 Wash. 473, 43 Am. St. Rep. 849, we said that the court could not, upon its own motion, require a third party to intervene in a garnishment proceeding; but this would not prevent the court from requiring a third party to appear upon the application of either of the perties in court. While the method of bringing such third party into court is not clearly pointed out, it seems to us to be clearly authorized in some manner by this section, and also by section 49.

which provides that where jurisdiction is given, all means to carry the proceeding into effect are also given; and, if the course of proceeding is not specifically pointed out by statute, any suitable process or proceedings may be adopted which may appear most conformable to the spirit of the code. This statute was clearly intended for a purpose, and that purpose is apparent. It would apply to a case of this kind, in the absence of any special provision, and it must be held in force, it seems to us, and to cover such a case as this; or it must be held that its provisions are so general as to be 130 wholly inoperative, and we can see no reason for so holding and thus depriving it of any effect. Provision is also made whereby the other joint claimant could intervene upon his own motion, or, in case there was a dispute as to the fund, provision is made for the payment of the same into court by the garnishee: Code Proc., secs. 152-156.

Now, while either of the parties could have applied to the court to have the other joint claimants brought into the proceedings, it seems to us that the obligation rested upon the plaintiffs, as they were the moving parties. They might have done this in the first instance, if they knew the facts, by applying to the court for an order and having suitable process or notice served upon the other joint claimants requiring them to appear in the proceeding and ask for such relief as they were entitled to; or, in consequence of a failure to do so, to be concluded by the judgment thereafter rendered; or they might have done so afterward, when the nature of the indebtedness was disclosed. While the defendants in the garnishment proceeding had this privilege, it was not incumbent on them to exercise it, and, as the plaintills did not ask to have the matter put in shape so the court could protect the interests of all parties, there was no error in dismissing the proceedings, and for that reason the judgment is affirmed.

Dunbar and Gordon, JJ., concur.

ATTACHMENT-GARNISHMENT OF JOINT DEBT.-If the answer of the garnishee shows that a third person claims the debt or some interest therein, such third person should be cited to appear: Payne v. Mayor, 4 Ala. 333; 37 Am. Dec. 744.

DOOLY V. HANOVER FIRE INSURANCE COMPANY.

[16 WASHINGTON, 155.]

INSURANCE, INTEREST OF THE ASSURED, NO QUES TIONS BEING ASKED.-Though a policy contains a condition declaring it to be void if the interest of the insured be other than unconditional or sole ownership, it cannot be avoided on the ground that the insured did not own the legal title, he having purchased the property and paid therefor without having received a conveyance, if no written application was made by him for the policy, and no questions were asked of him concerning his title.

INSURANCE, MISTAKEN ANSWERS, WHEN DO NOT AVOID A POLICY.—If the language of questions contained in an application for insurance calls for answers which may be, to some extent, a matter of opinion, the insured, if answering in good faith, will be excused, though he does not give the desired answer.

INSURANCE, FAILURE TO DISCLOSE FACTS.-If an insured is not questioned respecting encumbrances on his property or other facts material to the insurance, and does not intentionally conceal them, their existence does not invalidate the policy.

H. J. Snively and Fred Miller, for the appellant.

Reavis & Englehart, for the respondent.

155 DUNBAR, J. This action was brought in the superior court of Yakima county by the plaintiff (appellant herein) to recover from the respondent upon an insurance policy. The policy was issued on the twelfth day of June, 1895, in consideration of the payment by the plaintiff to the defendant of the premium of thirty-three dollars and eighty cents, the amount of the policy being one thousand dollars upon building, two hundred dollars upon furniture and fixtures, and one thousand dollars upon stock of wines, liquors, and cigars. The lot upon which the property insured was situated was held by plaintiff under a contract of purchase with one Walter N. Granger, a trustee. The plaintiff testified that at the time of the issue of the policy he had paid the purchase price in full, and was entitled to a deed therefor. 156 The building was burned and a certain amount of fixtures and stock of wines, liquors, etc., destroyed. No adjustment could be made, and suit was brought to recover the amount of the policy.

The defense in this action, so far as it is necessary to discuss it here, was based upon a condition in the policy which was as follows: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the interest of the insured in the property covered by said policy be other than unconditional or sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee

simple, or if the subject of insurance be personal property and be or become encumbered by chattel mortgages."

This provision of the policy was especially pleaded, and, upon the close of plaintiff's testimony, on motion of the defendant, the case was taken from the jury and dismissed at plaintiff's cost. No written application was made for this policy, and the undisputed testimony is, that no questions were asked the insured concerning the title to the land. It also developed in the trial of this cause that there was a mortgage upon certain of the goods, but the testimony of the plaintiff was to the effect that he made this known to the agent of the insurer. The testimony was as follows:

"Q. What did you say about this mortgage? A. He wanted to know whether the property was encumbered, and I said it was, and he wanted to know for how much, and I told him I couldn't tell without looking it up; there was a mortgage on the Zillah property and a mortgage on the North Yakima property to satisfy a debt of Rothchild Brothers. . . . .

"Q. Did he ask you anything about the ownership of the property? A. No, sir.

157 "Q. Did you make any statement whatsoever about the ownership of the property? A. No, sir."

Further on, in direct examination, after being recalled, the following appears:

"Q. Who was the owner of this property that was destroyed? A. I was.

"Q. Both the real property and the personal property? A. Yes, sir.

"Q. And the buildings? A. Yes, sir.

"Q. Now, I want to ask this question, I am not sure that I covered it entirely: Did you make any statement to Mr. Leeper, that is the agent; I believe I asked you whether he asked you any questions about the title? A. Yes, sir.

"Q. And his answer was [no]. Did you make any statement to him about the title? A. No, sir.

"Q. None whatever? A. No more than I told him there was a mortgage upon the property.

"Q. Did you make any statement except about this mortgage on the property, this mortgage to Rothchild Brothers? A. That is all."

There having been no written application in which questions were asked and answered concerning the status of the property, we think, under the authorities and as a question of right, that

this condition which is injected into the policy, among numerous other conditions more or less technical and hard to understand by the ordinary mind, ought not to prevent a recovery, in the absence of any misrepresentation on the part of the insured. The insured, as a matter of fact, ordinarily knows nothing about the policy until it is made out and returned to him after the payments for the same have been made to the agent at the time the contract was made, and the insurer, having failed to obtain this information, must be held to have done so at its peril.

Even where an application has been made, which 158 is the instrument to which the insured's attention is especially called and upon which he relies, it is held that where the language of the questions contained in the application calls for answers, which may be to some extent a matter of opinion, if the insured answers in good faith, he will be excused, though he does not give the desired answer: May on Insurance, sec. 166.

The ordinary layman is not presumed to know what a fee simple title is, and, in the absence of any questions which would tend to enlighten him as to the true definition of that phrase, he might very well conclude that he was the owner in fee simple if he was the owner and in possession and had such title to the property as is testified to by the assured in this case. Much more liberally ought the language to be construed when it is. found in the policy alone and not in an application to which the assured is directly a party.

"The issuing of a policy," says Mr. May in the section above referred to, "on an application which, without fraud, contains no answer to certain questions, is a waiver of answer to those questions, even though, in answer to another question, the insured may have said there were 'no other circumstances affecting the risk'; and, to avoid the policy in such cases, the insurers must prove untrue statements other than those inquired about."

The rule as announced by Wood on Insurance, section 212, is as follows: "When no inquiries are made, the intention of the insured becomes material, and, in order to avoid the policy, they must find, not only that the matter was material, but also that it was intentionally fraudulently concealed."

And in Insurance Co. of North America v. Bachler, 44 Neb. 549, it was held that: "Where the insured was not questioned as to encumbrances 159 on his property, and did not intentionally conceal the facts, the existence of a mortgage thercon did not invalidate the policy," following Van Kirk v. Citizens' Ins. Co., 79 Wis. 627.