4 Wash. 743 | Wash. | 1892
The opinion of the court was delivered by
The material question presented by the record in this cause is as to whether or not the notes set
The conclusions which we have above stated leave only two questions of fact in relation to such execution as to which a word, perhaps, ought to be said. The first is as to the actnal state of mind of William F. Waudby at the time of such execution, for even although the indebtedness as between him and the said Bell existed to the full amount named in said notes and mortgage, yet if he was absolutely incompetent to do any business, or to at all realize what was going on around him, his attempted execution, when in that condition, would be ineffectual, and the notes and mortgage, as such, would have no binding force. The testimony bearing upon his condition at this time is somewhat conflicting, but, as we view it, that most favorable to the case of the respondent shows him to have been in such a condition that he knew all that was going on about him, and was fully able to understand ordinary business transactions. It is true such testimony shows him to have been in a very bad state so far as his physical condition was
The other question of fact is as to whether or not the placing of the name of William F. Waudby to the notes by his wife constituted a signature thereof by him. We think it did. The whole matter of the giving of such notes, and mortgage to secure the same, had been fully talked over in the presence of William F. Waudby the day before the notes were signed, and the detail of the whole transaction, so far as ,the giving of security, and the particular property upon which the security was to be given, had been fully settled and determined. We think it also sufficiently appears that at the very time this figuring up of the amount of the indebtedness was had as between Bell and Mrs. Waudby, and-the notary who was there for the purpose of drawing and acknowledging the papers, Mr. Waudby had full knowledge of what they were doing, and while he may not have known just how the notes were to be signed, or the moment at which they were signed, we think that the circumstances were such as to warrant us in holding that she acted for
The notes and mortgage having been properly executed to secure a bona fide indebtedness, but two questions which we need to consider are urged by the respondent as reasons why appellant should not maintain his action: First, that there was no sufficient allegation of presentation to and rejection by the executrix and the probate court; second, that there was no showing that the indebtedness was that of the community. As to the first question the allegations are not, perhaps, as full and complete as they might have been, but we think they should be held to be sufficient, especially as they were not attacked by motion or demurrer, and any uncertainty in relation thereto was fully overcome by the proofs introduced at the trial. As to the second question, we held, in the case of Oregon Improvement Company v. Sagmeister, ante, p. 710, that debts of this kind are prima fade those of the community. This being so, the allegations and proof must be held to be sufficient to show that this indebtedness could be properly enforced against the property of the community.
The only other question for us to decide is as to the relief which should be granted the plaintiff. His counsel have in their brief alleged errors growing out of the action of the court in regard to the original complaint, and in regard to its action in various technical matters, but by filing an amended complaint he clearly waived the errors, if any, of the court in ruling upon his original one. This is, perhaps, the general rule, even in cases at law, and certainly such is the rule in suits in equity.
As to other alleged errors committed by the court they are such as could have no effect upon this court in deter
The decree of the lower court must be reversed, and the cause remanded with instructions to enter a decree establishing the claim set out in plaintiff’s complaint as a charge upon the estate of said William F. Waudby, and foreclosing the mortgage given to secure the same upon all property mentioned therein, excepting the cattle shown by the pleadings and proof to have been released therefrom. The plaintiff will recover his costs in both courts, including an attorney’s fee of three hundred dollars, as a part of his costs in the court below.
Anders, O. J., and Stiles and Dunbar, JJ., concur.
Scott, J. — Entertaining a different opinion as to the facts proved from that expressed by a majority of the court, I dissent.