prior lien upon the property of the corporation, under chapter 43, p. 55, Sess. Laws 1897, and the certificate itself says it is subject to the expenses of the trust. The labor was performed in behalf of the trust at the instance of the receiver, and by authority of the court. It follows that all the claims allowed by the court as part of the purchase price of the assets were liens upon the assets, and prior to the appellant's claim. Being prior liens upon the assets, the holder of the claim would, so far as appellant was concerned, have been entitled to the first money from the proceeds of the sale, if the sale had been entirely for cash. By the application of the amount of the claims to the purchase price the result was the same as though the full price had been directly paid in cash. We think respondent Carstens, as the holder of those claims, would have been entitled to turn them in as part of the purchase price, even in the absence of the previous understanding had with the court. In Mercantile Trust Co. v. Kanawha & O. Ry. Co., 58 Fed. 6, 7 C. C. A. 3, the purchasers were permitted to deposit bonds in payment of the purchase price, after paying into court sufficient cash to extinguish the costs and liens prior to the bonds. Of this the court said: "This was precisely the same as if the purchasers had paid the whole price in money, and had then withdrawn on distribution their pro rata share of the proceeds. Their rights cannot be different because they did not go through this useless formality. The railroad property, to the extent that it was paid for by bonds, was, in the hands of the purchasing bondholders, proceeds of sale."

We therefore think the sale, its approval, and all the proceedings considered together, including the order of reconfirmation aforesaid were of sufficient regularity, and that appellant's rights were not prejudiced thereby. We know of no statutory requirements regulating the sale of property by receivers in this state which make it necessary to give notice to all the creditors. The sale is made under the direction of the court as a court of equity, and it should be presumed that the court and its officers will make an honest effort to realize the greatest sum possible for the assets of the trust. When, therefore, a purchaser has bought in good faith, unless it is subsequently made to appear that the best interests of the trust would be served by not making any sale at all, or that the consideration is inadequate, his rights become established, and should not be disturbed. Particularly should it be so when it appears that no higher sum could have been realized. Under such circumstances we are unable to see that a creditor's rights are prejudiced by the mere fact that he did not have actual notice of the sale. The record of this case shows that, if appellant had been present at the sale proceedings, and at the

time of the first confirmation, it would have been unable to effect a different result from that which was obtained. Its claim would necessarily have been postponed as junior to those applied upon the purchase price, for the reason that the law under the facts fixed its status so. Being subject to those claims, appellant's claim, therefore, becomes a first lien upon the remaining assets, except expenses of the trust, for the reason that it is expressly made subject to such expenses.

Appellant's interest in the premises, therefore, seems to be confined to the right to share in the distribution of the balance with preference, according to the terms of its certificate. The purchaser paid to the receiver $3,951.14 cash, which exceeds the amount required to pay appellant's claim by considerably more than $2,000. Unless more than the excess is required to pay necessary expenses of the trust, appellant is still amply protected. The petition shows that by an order of the court the receiver and his attorneys were allowed for services the aggregate sum of $2,000. It is claimed that this was excessive, and the petition asks that the order of allowance be set aside. After hearing testimony upon this subject the court reaffirmed its former decision as to the value of the services. From all that is shown in this record we shall not undertake to say that the finding was erroneous. Other allowances, said to have been made at different times during the administration of the trust, are discussed in appellant's brief, but they are not mentioned in its petition, are not within the issues before us, and are not covered by the judgment from which the appeal is taken. They therefore involve questions that are not before us. The judgment is affirmed.

MOUNT, C. J., and RUDKIN, CROW, ROOT, and DUNBAR, JJ., concur.

(41 Wash. 150)

THOMAS et ux. v. LINCOLN COUNTY. (Supreme Court of Washington. Dec. 22, 1905.) APPEAL-APPELLATE COURT-JURISDICTION AMOUNT IN CONTROVERSY LEGALITY OF TAX.

Where plaintiffs recovered a judgment against a county in a suit to recover $64.56 taxes paid on an alleged erroneous assessment of a certain section of land which by mistake of the taxing officers was assessed as containing more land than it did in fact contain, the action did not involve the "legality" of a tax or assessment, within Const. art. 4, § 4, and 2 Ballinger's Ann. Codes & St. § 4650, permitting an appeal to the Supreme Court in cases involving less than $200, where the case involves the legality of a tax or assessment.

Appeal from Superior Court, Lincoln County; Miles Poindexter, Judge.

Action by A. J. Thomas and wife against Lincoln county. From a judgment in favor

Granted.

R. M. Dye, for appellant. H. A. P. Myers, for respondents.

The

By

ROOT, J. Respondents instituted this action to recover taxes paid under protest. complaint contains two causes of action. the first it appears that respondents are, and ever since the year 1900 have been, the owners of a certain section of land which contained 761.66 acres and no more; that for each of the years 1900, 1901, 1902, and 1903,

the taxing officers of the appellant county assessed this section of land as containing 859.08 acres; that respondents paid the taxes so assessed in the year 1900, by mistake and without knowledge that the section contained

a less number of acres than 859.08; that thereafter they paid their taxes each year under protest as to the amount now claimed to be excessive; but it is not shown that they ever appeared before the board of equalization or in any manner endeavored to have the assessment roll corrected. The second cause of action is based on a similar claim assigned by George W. Thomas and wife to respondents. The total amount of excessive tax, alleged by respondents to have been paid by them and their assignors during said years, was the sum of $64.56, in which amount judgment was awarded them on the trial of this cause in the superior court. From this judgment the county appeals.

Respondents move to dismiss this appeal for the reason that the amount involved is less than $200. Appellant has filed no reply brief, but doubtless relies upon the exception in the Constitution, which permits an appeal to be taken to this court where the case involves the legality of a tax or assessment, even though the amount involved be less than $200. Neither party has furnished us any citation of authority upon the question involved in this motion to dismiss. The question appears never to have been before this court. We think the motion must be granted. We do not think the expression "legality of a tax" comprehends such a question as is presented in this case. Here the difficulty arose from the county assessor having entered this section of land upon the assessment roll as containing 859.08 acres, whereas it contained only 761.66. The roll being returned with this number of acres set forth therein, the usual proceedings were taken by the county officials, which culminated in respondents being taxed for a larger acreage than they in reality owned. We think this was an error of fact and not of law. There was no contention that the land of respondents was not subject to taxation. There was no contention that a higher rate of levy was made than the law justified. There was no contention that property was assessed which was by law exempt. There was no lack of power to assess and levy a

The

the proceedings appertaining to the assessment or levy were made other than as, or different from those, provided by law. controversy did not arise from a difference of opinion on any question relating to the subject-matter, or as to any rule or construction of law; but the whole controversy took its inception from the mistake of the assessor in entering the amount of respondents' acreage in the assessment roll. was a mistake that could and should have been called to the attention of the assessor, the county commissioners, or the board of equalization, and corrected by some of these

This

officials. Neither the omission to do or have this done, nor the error in entering the number of acres erroneously, in our opinion, presented to the lower court a question affecting the "legality" of a tax or assessment, as that term is employed in section 4, art. 4, of the state Constitution, and in section 4650, 2 Ballinger's Ann. Codes & St. We have been unable to find any authorities exactly in point, but believe that the following have a tendency to support the conclusion we have reached: Hansen v. Nilson, 17 Wash. 606, 50 Pac. 511; Brown v. Rice, 52 Cal. 489; Cooley on Taxation (2d Ed.) p. 748; Favrot v. Baton Rouge, 38 La. Ann. 230; State v. Recorder, 41 La. Ann. 533, 6 South. 819; Mason v. Gamble, 21 How. (U. S.) 390, 16 L. Ed. 81; Tebault v. New Orleans, 108 La. 686, 32 South. 982; Rocheblave Co. v. New Orleans, 110 La. 530, 34 South. 665. The motion to dismiss is granted.

MOUNT, C. J., and DUNBAR, HADLEY, FULLERTON, RUDKIN, and CROW, JJ.,

concur.

(41 Wash. 168)

SLATER v. GRIBBEL et al. (Supreme Court of Washington. Dec. 26, 1905.) EQUITY-STANDING TO INVOKE PROTECTIONFRAUD OF COMPLAINANT.

Plaintiff falsely represented to defendants that he had an option on a tract of land, and procured from them a loan of $20,000 to make the purchase. He then employed a third person to obtain a contract for the purchase of the land, giving him $100 to pay down thereon. The contract was procured accordingly, the purchase price being $35,000, and plaintiff contracted to buy the land from the third person for $100,000; the contract containing an indorsement that $15,000 had been paid thereon, whereas nothing had been paid except the $100. On the strength of this contract and false representation as to the money paid thereon, plaintiff borrowed $36,000 more from defendants. It was agreed between plaintiff and defendants that a corporation was to be organized to take over the lands, bonds were to be sold, and defendants were to be reimbursed from the proceeds of the bonds, and were to receive a stock bonus. Plaintiff converted most of the money to his own use and made no further payments on the contract. Tax foreclosure proceedings were instituted against the land, and on plaintiff's refusal to pay the taxes, pay the purchase price, or organize the corporation,

certain defendants, to protect themselves, bought the land from the third person for $52,500. Held, that plaintiff had no standing in a court of equity to assert title to the land under his contract with the third person.

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by Robert Y. Slater against John Gribbel and others. From the judgment rendered, plaintiff and certain defendants appeal. Affirmed.

W. H. Bogle, for appellant. Wm. Parmerlee and Wm. G. Crosby, for respondents.

MOUNT, C. J. Appellant, Slater, brought this action in equity, asking the court to adjudge him a four-tenths interest in certain lands in King county. After issues were made upon the pleadings, and after a trial on the merits, the court, without making any findings of fact, entered a decree adjudging that appellant Slater was entitled to a fourtenths interest in the lands in question, on condition that within four months from the date of the decree he would repay to respondents the sum of $27,000 borrowed from them, and the further sum of $21,100, being four-tenths of the purchase price of the land paid by respondents, making a total of $48,600. From that decree Slater has appealed.

There is some dispute of the facts upon the record; but, after carefully reading the same, we find the following to be the substance of the facts in the case: Prior to July, 1902, the heirs of John McHenry, deceased, were the owners of about 1,117 acres of land in sections 26, 30, 32, and 36, in township 21 north, of ranges 6 and 7, in King county, which lands are supposed to contain deposits of coal. J. B. Metcalfe was attorney in fact for the heirs of John McHenry, deceased. In May and June of 1902, appellant Slater, who is a resident of Washington, D. C., accompanied by respondent W. S. Bowen, went to the office of John Gribbel in Philadelphia, Pa., and there represented to Mr. Gribbel that they had an option to purchase the lands above mentioned; that they wanted to take up the option and acquire the title of said lands and thereupon organize a corporation, to be known as the "Green River Coal Mining Company," with a capital stock of $5,000.000, and then bond the corporation for $300,000, which sum of money realized from the bonds was to be used in paying the purchase price of the land and equipping the corporation for mining coal in the state of Washington. They also represented that negotiations were under way for floating the said $300,000 worth of bonds, and that a trust company had promised to float the bonds as soon as title could be acquired to the land. They then proposed to Mr. Gribbel to borrow $5,000 from him, which money was to be used for the purpose of taking up the option on the land. Relying upon the rep

resentations as above stated, Mr. Gribbel advanced to Slater and Bowen $5,000, and took a contract by which they agreed to repay the said sum of $5,000 to Mr. Gribbel, as soon as money was realized upon the bonds above mentioned, and to issue to him 100,000 shares of fully paid stock in the corporation to be organized. They also obtained $5,000 from I. J. McGeogh, of Philadelphia, and $10,000 from C. T. Bride, of Washington, D. C., in the same way. They then came to Seattle; whereupon appellant Slater employed one D. B. May to call upon J. B. Metcalfe for the purpose of purchasing the land above referred to. Mr. May did so and, on July 21, 1902, entered into a contract with Mr. Metcalfe by the terms of which contract Mr. Metcalfe, for the heirs of John McHenry, deceased, agreed to sell and convey said lands to said May for the sum of $35,000, Mr. May agreeing to assume and pay the back taxes, which were then due and delinquent in a large amount. Slater furnished May $100, which was paid down on the contract. The balance was to be paid as soon as the title in fee, subject to the taxes, could be conveyed to Mr. May. Mr. May thereupon, on the same day, to wit, July 21, 1902, at Slater's request, entered into a contract with Slater, by which contract Slater agreed to pay to Mr. May the sum of $100,000 for the property as follows: $15.000 cash at the date of the contract; $25,000 on September 1, 1902; and $60,000 within six months from the date of the contract. At the time this lastnamed contract was entered into, a receipt for $15,000 was indorsed thereon by Mr. May, but no money was paid except the $100 which May paid to Mr. Metcalfe as above stated. With this contract in their possession, Slater and Bowen returned to Pennsylvania, where they began to solicit funds, which they stated were for the purpose of meeting the $25,000 payment due on September 1st. They represented that said D. B. May was the owner of the land; that Slater held a contract for the purchase thereof from May for $100,000; that $15,000 of this sum had been paid, and that the lands were valuable for deposits of coal contained therein; that they intended to form a corporation as hereinbefore stated, and that they had arranged with a New York trust company to float the bonds for $300,000 as soon as a good title was obtained to the lands. Upon the strength of these representations, they succeeded in borrowing about $36,000 from the respondents, in addition to the $20,000 hereinbefore referred to, issuing individual contracts, promising to repay each person contributing money the amount he contributed as soon as the $300,000 in bonds were realized upon, and also promising to deliver to each person a stated number of shares of stock of the Green River Coal Company, when the same should be incorporated. The whole of the money realized

in this way was turned over to the appellant R. Y. Slater. No payments were made upon the contract between Slater and May, and no further payment was made upon the contract between May and Metcalfe. In October, 1902, King county, in which the lands were located, instituted proceedings to foreclose its lien for taxes upon the lands. Thereupon, Mr. Metcalfe demanded of Mr. May that he pay the taxes against the lands. Mr. May, in turn, demanded money of Slater for that purpose. Slater refused or neglected to advance any money for this purpose, the attention of respondents was called to this foreclosure proceeding, and, upon inquiry, they first learned that May had no title to the lands, but held only a contract for the purchase thereof, and that he had paid only $100 thereon. They also learned that Slater had collected more than $50.000 in money for the purchase of the land, and had paid none of the purchase price. He refused to pay the purchase price, claiming he had paid $40.000 thereon, and refused to pay the taxes or to organize the corporation. Respondents, after learning of the fraud which had been perpetrated upon them, thereupon, in order to protect themselves against total loss of the money they had advanced to Slater, entered into negotiations with Mr. Metcalfe and Mr. May for the purchase of the lands, independent of Mr. Slater; which negotiations resulted on January 5, 1905, in a deed from said May to the defendants, except May, McGeogh, and Riegle, conveying the property to them in fee for the sum of $52,500. The appellants, McGeogh and Riegle were advised of the purposes and objects of the other defendants in purchasing the property direct, and were invited to furnish their pro rata of the purchase price and share in the results, but they refused to do so. The evidence also shows that the whole sum of $56,400, collected by appellant Slater from the respondents, was converted by Slater to his own use, except the sum of about $6.000 or $7.000, which was used in promoting his fraudulent scheme.

Appellant, Slater, upon this appeal, argues that he is an equitable owner of the lands, because (1) the title of respondents was acquired from Mr. May with whom he had a contract for the purchase thereof, which contract was known to respondents, and also because he had paid $40.000 thereon; (2) because he had not abandoned the contract; and (3) because respondents took title direct from May before the last payment upon Slater's contract became due, and were therefore estopped by their own deeds from contending that their title is free from the equity of Slater, under the rule in Brummett v. Campbell, 32 Wash. 358, 73 Pac. 403. It is sufficient answer to all these positions to say that Slater's fraud, which is clearly shown upon the record, gives him no standing in a

court of equity. His acts from the beginning clearly show his fraudulent intention. He represented to respondent Gribbel, in June, 1902, that he had an option on the land. This representation was absolutely false. He had no option of any kind at that time. He probably knew that he could acquire a title at that time, but he had none then. On July 21, 1902, he could have purchased the prop erty for $35,000. He did not do so. Instead of that, he employed D. B. May, who knew nothing of the property and who had no money, to go to Mr. J. B. Metcalfe and purchase the property. May entered into a contract with Metcalf for the purchase of the property for $35,000, paid $100 down with money furnished by appellant Slater, and then, at appellant's request, entered into a contract with appellant to sell the property to him for $100.000. This was a fraud upon the face of it. The contract recited that $15,000 was paid thereon. This was false. With this contract as a basis, appellant collected $33.000 more money from respondents upon false and fraudulent representations. He made no payments upon the contract, except the sum of $100. He received and converted to his own use more than $50,000 by these fraudulent representations, and now, when the fraud is discovered by the persons defrauded, and they turn away from him and seek to protect themselves by purchasing the land for about onehalf the sum he had agreed to pay for it, he asks a court of equity to adjudge him a fourtenths owner by reason of an alleged $40,000 payment which he never made, and to make which respondents furnished $40.000. But for the timely interference of respondents, the whole property would have been lost to them through foreclosure of delinquent taxes, and their only recourse would have been against Slater personally. Under these conditions, the lower court certainly went as far as it was justified in going when it decreed that Slater should have a four-tenths interest in the land, upon repayment of the money loaned to him and the payment of $21,100 additional to the respondents, being four-tenths of the purchase price which respondents finally paid for the lands. Respondents have not appealed, and for that reason only we shall not modify the decree in their behalf. Appellants McGeogh and Riegle were invited to contribute to the purchase of the land by respondents, and share in the results, before the purchase was actually made. They declined, and outside parties were subsequently permitted to come in and assume the burden. They are, therefore, in no position to complain.

The judgment appealed from is affirmed, with costs against appellant Slater.

DUNBAR, ROOT, RUDKIN, FULLERTON, HADLEY, and CROW, JJ., concur.

(41 Wash. 159)

STATE v. STRODEMIER. (Supreme Court of Washington. Dec. 26, 1905.) 1. CRIMINAL LAW-MISCONDUCT OF JURY AND BAILIFF.

Where, in a prosecution for cattle stealing, the court ordered that the jury be kept together in charge of sworn bailiffs, the fact that one of such jurors during the trial went to a public drinking saloon out of the hotel where they were being kept, accompanied by a bailiff, without permission of the court or consent of the defendant, and there took a drink of whisky, and immediately returned in charge of the bailiff to the other jurors at the hotel, constituted such misconduct on the part of both the juror and the bailiff as vitiated a conviction subsequently had. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2254-2257.]

2. SAME-PREJUDICE.

Such acts raised a conclusive presumption of prejudice against defendant, which could not be rebutted by affidavits of jurors that the juror in question was the last to consent to a verdict of guilty.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2254–2257.]

Rudkin and Fullerton, JJ., dissenting.

Appeal from Superior Court, Douglas County; R. S. Steiner, Judge.

Henry Strodemier was convicted of cattle stealing, and he appeals. Reversed.

W. J. Canton and W. E. Southard, for appellant. W. A. Reneaw and Sam B. Hill, for the State.

MOUNT, C. J. Appellant was convicted of the crime of cattle stealing. He alleges three errors of the trial court. One of these is decided adversely to his contention in State

V.

Strodemier (Wash., filed December 6, 1905) 82 Pac. 915. Another cannot arise upon a new trial. It is therefore necessary for us to consider but one of the alleged errors. At the beginning of the trial of the case the jury was ordered kept together in charge of sworn bailiffs. While the jurors were not sitting in the jury box, they were kept at a hotel at the county seat. On the morning of January 5, 1905, before the court had convened for the day, and before the jury had breakfasted, one of the jurors, in company with one of the bailiffs, went to a public drinking saloon out of the hotel, without permission of the court or the consent of appellant, and there took a drink of whisky, and immediately returned in charge of said bailiff to the other jurors at the hotel. or two other persons besides the bartender were in the saloon while the juror and the bailiff were there, but no conversation- took place between said juror and other persons, except such conversation as was necessary to order drinks. Appellant maintains that this was such misconduct of the jury as to entitle him to a new trial. The question was presented to the trial court upon motion for a new trial, which was denied.

One

The court should have sustained the motion upon this ground. If the rule is established

that a juror, in company with a bailiff, may separate from the body of the jury and go to a public drinking saloon, and there in dulge in drinking intoxicating liquors, without the knowledge of the trial judge or the consent of the defendant, dire results may follow. If one juror may be permitted to do such acts, the whole jury may do so, and jurors disposed to such habits may readily bring jury trials into disrespect and contempt. Public policy forbids that such acts be tolerated in the trial of causes. The fact that the juror took a drink of intoxicating liquor during the trial is not so reprehensible of itself as the fact that he went to a public drinking saloon and at such public place, in the presence of the bartender and one or two others, drank liquor, and was permitted to go there by an officer whose sworn duty required that he should not give the juror drink, except by order of the court. It is the policy of the law, in keeping jurors together and away from the public, that nothing outside of the evidence shall be permitted to influence their verdict. When they are taken, either singly or in a body, to a public drinking saloon, where people who are interested may be expected to, and frequently do, congregate to discuss the case on trial, an opportunity is afforded for undue influence upon the jury, and the spirit, if not the letter, of the law is violated. Cases, no doubt, frequently arise where, from necessity, a juror is permitted to withdraw from the body of the jury for a short period of time, and without the express order of the court or the consent of the defendant on trial. Such acts, of course, arise from necessity, and would not be held to be misconduct. But such is not the case here. The only excuse offered is that the juror was suffering from a cold and pain in the stomach. If these facts were true, no emergency is shown, and no excuse is offered for not applying to the court for an order for some remedy, which could readily have been granted without exposing the juror to the public in the unseemly manner which he took upon himself. Neither he nor the bailiff was justified in this conduct.

In order to avoid the misconduct of this juror, the state filed affidavits of several of the jurors, to the effect that the juror was the last to consent to a verdict of guilty; and it is contended for that reason that the misconduct of the juror was without prejudice. But the rule seems to be that, where misconduct is admitted, jurors cannot be heard to deny its prejudicial influence. People v. Chin Non (Cal.) 80 Pac. 681; People v. Stokes, 103 Cal. 196, 37 Pac. 207, 42 Am. St. Rep. 102; People v. Azoff, 105 Cal. 634, 39 Pac. 59. We think that, under the circumstances of this case, prejudice must be presumed.

The judgment is therefore reversed, and the cause remanded for a new trial.