the new register; his remedy not being limited to the recovery of the old register or its value. [Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales. § 1420.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the National Cash Register Company against N. Petsas. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

J. W. McBurney, for appellant. Walter S. Fulton, for respondent.

ROOT, J. On the 15th day of December, 1903, the respondent purchased from appellant a cash register, and signed a written order embodying the terms of the purchase. By the provisions of this instrument respondent was to pay the sum of $275, $30 in cash down, $25 upon delivery, and the balance in monthly payments of $25 each. The written order contained the following: "You to allow me $43.75 for No. 8 139,147 on D. design to return it on arrival of new register." This provision referred to an old cash register then owned by respondent. Pursuant to this order, 'the new cash register was delivered to respondent and certain payments were made. On February 4, 1904, appellant sent a notice to respondent containing the following: "We have this day sent to the Scandinavian Amerian Bank of your city sight draft for $25 for cash payment, and one note amounting to $176.25, for signature, payable in seven installments, as per terms of your signed order. Should you desire to discount the above, the bank has been authorized to accept $189.69 in full payment of draft and note." Pursuant to said notice respondent paid the bank the sum of $189.69, and took up said draft and note. The amount of the draft, $25, and of the note, $176.25, together with the cash payment of $30, added to the sum of $43.75, the credit to be allowed for the old cash register, make up the $275 contract price of the new register. Respondent did not deliver the old register to appellant, nor did he pay the $43.75 which was to be allowed as a credit in case the old register should be turned over to appellant. Respondent claimed, and the trial court found, that the payment of $189.69 to the bank was a full settlement, and payment of the purchase price. Respondent argues that the judgment of the trial court is correct upon either of two grounds: (1) That the bank was authorized to accept $189.69 as payment in full, or that said bank did as a matter of fact accept said sum as payment in full and complete satisfaction, and that it had such apparent authority as to bind appellant. (2) That appellant cannot recover the new machine, but that if it has any right of action it is for the recovery of the old register or its value, to wit, $43.75. Respondent testified that the bank official told him that payment of the draft and note would be accepted as full settlement of the

transaction. This is flatly denied by the bank official, who says that he knew nothing about the terms of the contract, but accepted the money merely as payment of the note and draft. We think the testimony of the bank official to be the more credible; and the burden being upon respondent to prove payment and satisfaction by a fair preponderance of the evidence, we think he failed to establish such facts. Regardless of this, we cannot find in the written communication offering to accept $189.69 "in full payment of draft and note," any intention of accepting said sum as full payment for the register, or any authority authorizing the bank to so accept said sum. As to the second proposition, we do not think it can be maintained. The written order signed by respondent when purchasing the new register reserved to respondent the option of "turning in" the old register, and receiving a credit of $43.75 therefor. In other words, respondent had the privilege of paying $43.75 by delivering the old register to appellant. He never made said payment. Consequently full payment for the new register has never been made. Said written order or agreement provided that the title to the new register should not pass until the purchase price should be paid in full. Said purchase price not having been paid, appellant was justified in bringing this action.

The judgment of the honorable superior court is reversed, and the cause remanded to the trial court, with instructions to grant judgment for the recovery of the new cash register, together with damages for its being withheld, unless within 30 days from the filing of the remittitur in the lower court the respondent shall deliver to appellant the old cash register in as good a condition as it was at the time of the commencement of this action, or pay the appellant the sum of $43.75, with legal interest thereon from the date of the commencement of this action. Costs in both courts to appellant.

ROOT, J. Respondent brought suit to recover possession of certain goods taken by the appellant as sheriff under a writ of attachment issued in an action wherein the Washington Liquor Company was plaintiff and Fred Lucas and James Lucas, as partners under the firm name of Lucas Bros., were defendants. A trial before the court without a jury was had, and findings of fact and conclusions of law duly entered favorable to respondent, upon which judgment was rendered. From this an appeal is taken.

From the findings of fact, to which no exception is taken, the following appears: Fred Lucas was engaged in the saloon business at Rosalia, and, being in failing circumstances and indebted to respondent in the sum of $757 for wines, liquors, and cigars, executed and delivered to respondent a bill of sale and all of his wines, liquors, and cigars, being his entire stock, and being composed partially of the identical goods for which he was indebted to respondent, and of the value of $600. Neither at the time said goods were sold to respondent not at any other time did the latter ask for or receive from said Lucas an affidavit or list of creditors, as provided for under the provisions of chapter 109, p. 222, of the Session Laws of the state of Washington for 1901. spondent voluntarily paid the creditors of said Lucas living at Rosalia, but did not pay or secure the other creditors, of whom there were several; one being said Washington Liquor Company.

Re

It is urged by appellant that the sale and transfer of the entire stock by Lucas to respondent, without an affidavit and list of creditors being demanded or given, was absolutely void on account of the "sales in bulk" statute. Respondent maintains, however, that this statute has no application to the facts of this case. It does not appear from the findings that the Washington Liquor Company was a creditor of either Fred Lucas, or Lucas Bros., at the time of the sale, or at any time, except by inference. Hence, the question of whether respondent complied with the "sales in bulk" statute becomes immaterial. Whitehouse v. Nelson (Wash., decided July 20, 1906) 86 Pac. 174.

But, aside from this, it being unquestioned under the findings that Fred Lucas was a creditor of respondent, and that the amount of goods which he turned over was less in

value than the amount of his indebtedness to respondent, it must be held, under former decisions of this court, that the transfer was justified. In the case of Vietor v. Glover, 17 Wash. 37, 48 Pac. 788, 40 L. R. A. 297, this court, among other things, said: "It is the established law of this state that an individual, although insolvent or in failing circumstances, may pay or secure one or more creditors to the exclusion of others equally meritorious, even if by so doing he exhausts the whole of his property." The stock turned over by Lucas to respondent being insufficient to satisfy the indebtedness to the latter, there was nothing for respondent to pay over to other creditors. Consequently there would be no occasion for his demanding the affidavit and list of creditors required by the statute.

There being no sale or transfer of goods in bulk within the meaning of the "sales in bulk" law, and there being no contention that the sale was otherwise illegal, we find no error in the judgment. It is therefore affirmed.

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

(43 Wash. 433)

HYDE et ux. v. HEATON et al. (Supreme Court of Washington. Aug. 15, 1906.) 1. MORTGAGES-FORECLOSURE BY ACTIONSALE-CONFIRMATION.

Though it was more than six years after the sale of land under execution in foreclosure of a mortgage before confirmation of the sale, the purchaser obtained a valid title, in the absence of any negligence on his part to the prejudice of innocent parties, as the purchaser obtained the equitable title on the sale, and the statute prescribing the duration of liens and judgments did not affect him.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1531.]

2. JUDGMENT-DEFAULT-NOTICE OF SUBSEQUENT PROCEEDINGS.

Where, in an action to foreclose a mortgage, default is entered against defendants, no notice of subsequent proceedings is required by Ballinger's Ann. Codes & St. § 4886, providing that defendant, after appearance in an action, is entitled to notice of subsequent proceedings.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 207.]

3. LIS PENDENS EFFECT FORECLOSURE OF MORTGAGE.

Where, in mortgage foreclosure, a lis pendens was filed, it was not necessary that the purchaser at sale should file the certificate in order to give notice.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Lis Pendens, § 34.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Suit by Joseph Hyde and wife against Oscar G. Heaton and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

H. L. Moore, for appellants. S. H. Steele, for respondents.

DUNBAR, J. Appellants brought this action in ejectment to recover possession of certain lands described in the complaint, alleging therein that on May 23, 1904, they became seised in fee and possessed thereof, and that afterwards, on August 24, 1904, while they were so seised and possessed, respondents entered without right or title and ousted appellants, and that they now unlawfully withhold such possession. The respondents denied these allegations, and for affirmative defense alleged that on September 30. 1891, one Charlotte Cannon, then being the owner of the land described in plaintiffs' complaint, for value, duly executed and delivered a mortgage thereon to the Guarantee Loan & Trust Company for the sum of $400, which mortgage was duly filed and recorded, etc.; that afterwards the said Guarantee Loan & Trust Company duly assigned and transferred said mortgage to one Julia I. Gelston; that on April 29, 1895, the said Charlotte Cannon sold and conveyed the premises to one Emily Taylor, subject to said mortgage, which deed was filed for record, etc.; that on May 28, 1897, the said Julia I. Gelston commenced an action against the said Charlotte Cannon and Emily Taylor in the superior court of King county, to foreclose said mortgage, and sell said premises; that at the time of filing the complaint in the aboveentitled action a lis pendens was duly filed and recorded; that the said Emily Taylor was duly served with summons and a copy of the complaint; that the said Charlotte Cannon was duly and legally served with summons by publication; that on September 16, 1897, the superior court of King county, Wash., then having jurisdiction of the subject-matter and of the parties, and of the default of said Charlotte Cannon and Emily Taylor, duly and legally entered a decree in said action in favor of Julia I. Gelston for the amount demanded, and foreclosed said mortgage and ordered the premises sold in the manner provided by law for the satisfaction of said debt, said judgment providing that the said Charlotte Cannon. Emily Taylor, and all persons holding by, through, or under them, are forever barred, cut off, and estopped from having or claiming any interest in said land; that on September 23, 1897, an execution was duly and legally issued and delivered to the sheriff of King county, Wash., commanding him to levy on the above-described land and sell the same in the manner provided by law in satisfaction of the said debt; that on September 24, 1897, said sheriff duly and legally levied such execution on the above-described land; that on October 30, 1897, the sheriff of King county, Wash., in pursuance of said decree, execution, and levy, after giving notice, etc., sold said land in the manner provided by law, to Julia I. Gelston, subject only to redemption in the manner provided by law, for the sum of $516.92, which sum was then and there paid by the said Julia I. Gelston for said land, and the sheriff of said

county then and there issued and delivered to the said Julia I. Gelston a certificate of purchase of said land, and duly and legally reported said sale to the superior court of King county, Wash.; that on October 30, 1897, said Julia I. Gelston filed a motion in said case for the confirmation of said sale; that on June 9, 1904, the time for redemption having expired and said property not having been redeemed from said sale, the superior court of King county, Wash., entered an order confirming said sale to said Julia I. Gelston; that afterwards the sheriff delivered a deed to said Julia I. Gelston for the said land. The answer sets up the conveying of the title from Julia I. Gelston through different parties to the respondents. Other matters and defenses in relation to the redemption of the land from tax liens by the respondents are set forth in the answer; but with the view we take of the law on the main case it is not material to enter into a discussion of these subsequent questions. The plaintiffs' reply denied the right of the parties making the several deeds to deed the property as against the rights of the plaintiffs; set up the fact that the judgment was rendered on the 16th day of September, 1897, and that the sale was not confirmed until in June, 1904, that more than six years elapsed between the date of said sale and the date of said confirmation, that no proceedings were ever had to revive said judgment, and that no notice of said confirmation was ever served upon the judgment debtors or the plaintiffs herein; alleged that the plaintiffs were at the time of the filing of said motion for confirmation the holders of the legal title of record, that said judgment was never satisfied upon the judgment docket, that by reason of the lapse of time the judgment had become dead, null, and of no effect, that by reason thereof the court had lost jurisdiction to entertain a motion for confirmation and to make an order of confirmation, and that the judgment, order of confirmation of said sale, and said sheriff's deed issued thereunder were void, but that they constituted a cloud upon plaintiffs' title to said lands; set forth that they purchased the lands for a valuable and fair consideration without any notice of the claim, title, equity, interest, or lien of said Julia I. Gelston, or any other person; alleged that by reason of the failure of the said Julia I. Gelston to take possession of said lands or to obtain a confirmation of said sale, or to record the certificate of purchase, the said Julia I. Gelston and her grantees are now estopped from asserting or claiming title adversely or against said plaintiffs. To this reply the defendants demurred, which demurrer was sustained. Afterwards defendants asked for judgment on the pleadings, which was granted, and the appeal is taken from said judgment.

The appellants claim title through Emily Taylor, who deeded the land to H. M. Perry on May 21, 1904, and Perry to the appellants

on May 23, 1904; so that it will be seen that the principal contention in this case is that the court was without jurisdiction to confirm the sale after the lapse of six years from the entering of the judgment of foreclosure. It is asserted by the appellants that this court has held that a judgment becomes inoperative for any purpose after the time prescribed by statute for the duration of this lien, citing Brier v. Traders' Nat. Bank, 24 Wash. 695, 64 Pac. 831; Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846; and Hardin v. Day, 29 Wash. 664, 70 Pac. 118. But Brier v. Traders' National Bank, supra, and the cases which followed it, do not touch upon, or discuss, the proposition involved in this case. In Brier v. Traders' National Bank it was held that no judgment could be revived unless proceedings therefor should be commenced within six years after the date of its rendition, and that the act of revival does not make the lien continuous where application therefor is not made until after the expiration of the five years; and where the lien has ceased prior to the order of revival, it cannot be revived so as to affect the rights of a purchaser who had acquired title subsequent to the original judgment; that such after-acquired title has priority over the judgment during the interval between the cessation and revival of the judgment lien. In Packwood v. Briggs, it was held that the execution was void at the time of the attempted sale, and that there being no lien in existence, there could have been no authority for the sale under any execution that might have issued. Hardin v. Day and many subsequent cases were based upon the same idea, viz., that the sale of land on execution, made more than five years after the rendition of the judgment, was void where the judgment had not been revived.

But this is not a judgment lien; nor do we readily see how there could have been any legal attempt to revive this judgment, for the judgment had been merged into an execution, and the execution had been followed by sale, and the payment of the purchase money into court. So that the pertinent question here is not whether a lien obtained by a judgment has expired, but what interest in the land was conveyed to the creditor by the sale of the land by proceedings subsequent to foreclosure. Confirmation is simply the judicial sanction of the court of the sale, completing the legal transaction. It does not have the virtue of the sale itself, but is judicial evidence of the sale. It relates back to the time of sale, and supplies all defects excepting those founded in want of jurisdiction or in fraud. If the sale was made without jurisdiction, it could not be cured by confirmation. So that it is the legal sale and payment of the purchase price which gives the equitable interest to the purchaser, and not the confirmation, which is more of a ministerial act. It, therefore, follows that the purchaser has more interest than that

of a mere lien on the land sold, and that the statute prescribing the duration of liens and judgments does not affect him. Respondents cite many cases sustaining this position, notably Link v. Connell (Neb.) 67 N. W. 475, which is very nearly parallel with the case at bar, and decides every pertinent question raised in the case at bar. There, as here, it was claimed that the action of the court in confirming the sale was without jurisdiction by reason of the lapse of time, and the court said that that question had been determined adversely to the contention in Day v. Thompson, 11 Neb. 123, 7 N. W. 533, where it was contended that whatever rights the purchaser had acquired were lost through his laches in failing to demand a deed. But the court, quoting the statute which is similar to ours, said: "Under the provisions of this section the pendency of the attachment was notice to third persons from the time of the publication of the notice, and this notice continues during the pendency of the action and the jurisdiction of the court continued until the deed was executed"-citing a case from Ohio, viz., Beaumont v. Herrick, 24 Ohio St. 445, where. under statutes similar to ours, it was held that the pendency of an action of foreclosure continues for the purpose of the enforcement of the decree until confirmation of the sale and disposition of the proceeds thereof, and that the decree in such case did not become dormant although more than five years had elapsed without issue of an order of sale, five years being the life of the lien in that state: also citing Bennett on Lis Pendens, p. 173, where it was said: "When jurisdiction has attached to the res, the general rule should be that the suit wil pend so long as it is not dismissed by the court, sua sponte, or for want of prosecucution, or upon the motion of the parties, or be brought to a close by reason of some statutory provision or rule of court having the force of law. * When the elements of the valid lis pendens exist, and the court, in the enforcement of its acknowledged jurisdictional power, shall proceed to judgment or decree and its execution, if it were permissible for the same or another court in a collateral proceeding to say that there had not been a valid lis pendens binding upon the res, it would amount to the nullification of a judgment or decree where the court had acknowledged jurisdiction. Such a result would be most disastrous and ought never to occur." It was also determined in that case that the question of the jurisdiction of the court in an action of this kind, viz., the foreclosure of a mortgage, could not be raised upon a collateral attack.

*

*

But, outside of that question, it seems to us that the issues in this case have been determined in favor of the respondents, by this court, so clearly that outside authori ties are of little moment. In discussing the value and effect of confirmation, we said,

in Morrow v. Moran, 5 Wash. 692, 32 Pac. 770, that it was not the confirmation that gave the equitable title to the land, but it was the purchase at the execution sale and the payment of the purchase price according to the terms of the sale; that if the proceedings had been regular up to the time of, and including, the sale, the equitable title would pass to the purchaser, and that the confirmation was really only the announcement of the legal determination of these facts. In Diamond v. Turner, 11 Wash. 189, 39 Pac. 379, it was held that a certificate of sale passed the substantial title of defendant at execution sale, and the fact that a deed in pursuance thereof was executed to the purchaser after his death would not defeat the title of those claiming under him, the court saying: "The certificate of purchase and confirmation of sale were alone essential to pass the substantial title of the defendant in the execution to the purchaser at the sale. The execution of the deed after the time for redemption had expired was a purely ministerial act on the part of the officer, and could have been compelled by the purchaser, or those claiming under him, at any time in a proper proceeding for that purpose. Until the sale had been set aside, a certificate of purchase would be as fully protected as though the legal title had been conveyed by deed made in pursuance of the statute." Under these authorities the respondents had an equitable interest in the land and, although the confirmation of the sale was necessary to complete the legal title, the equitable title existed, and could not be affected by the lapse of time, unless by the negligence of the holder of the equitable interest in not obtaining the confirmation for an unreasonable length of time outside of the statutory provisions, innocent parties were misled and made to suffer by reason of such negligence. In such cases, a large discretion is vested in courts to determine under all the circumstances of the case when such time has expired. But there is nothing in this case that would bar the respondents from asserting their right on account of negligence.

It is contended, however, by the appellants that, in case title did pass to the respondents through the sale, the certificate of sale should have been recorded in order to give notice to innocent purchasers. Notice was given by the filing of the lis pendens, and under universal authority, such notice 1 olds good until the determination of the case. No notice of subsequent proceedings after default is required by the statute. It was decided by this court in Norris v. Campbell, 27 Wash. 654, 68 Pac. 339, that section 4886, Ballinger's Ann. Codes & St., which provides that a defendant after appearance in an ac+ion is entitled to notice of all subsequent proceedings, is not applicable where defendant has been adjudged to be in default, and

hence notice of proceedings subsequent to default was unnecessary; citing Mendenhall v. Kratz, 14 Wash. 453, 44 Pac. 872. In this case default was entered against the defendants.

No error appearing, the judgment is affirmed.

MOUNT, C. J., and CROW, FULLERTON, and ROOT, JJ., concur.

(43 Wash. 531)

PANSING v. WARNER.

(Supreme Court of Washington. Aug. 29, 1906.)

TRUSTS-RESULTING TRUST-TITLE TAKEN BY AGENT IN HIS OWN NAME.

Evidence considered, and held to sustain a decree adjudging that plaintiff was the real owner of both the legal and equitable title to certain lands in his possession, and that the legal title, taken to himself by defendant's husband in his lifetime while acting as plaintiff's agent and attorney, was held by him as trustee for plaintiff, for which reason a voluntary deed made by him to defendant, but not delivered nor recorded until after his death, conveyed no interest.

Appeal from Superior Court, Kittitas County; H. B. Rigg, Judge.

Action by Charles W. C. Pansing against Ella Girdner Warner. Decree for plaintiff, and defendant appeals.

Austin Mires and Wheeler, for appellant.

Affirmed.

Reavis, Thorp & Carroll B. Graves and John H. McDaniels, for respondent.

MOUNT, C. J. This action was brought by respondent against the appellant to quiet title to two certain tracts of land and for an order requiring the appellant to convey the legal title thereof to respondent. A decree was entered as prayed for in the complaint. Defendant appeals from that decree.

The controlling questions presented here are questions of fact. It appears from the testimony in the case that the respondent is an illiterate man, unable to read or write the English language, except to sign his own name; that C. V. Warner, now deceased, was the agent, attorney, and confidential adviser of the respondent for a period of more than 10 years, and transacted all of respondent's business relating to his real estate: that during this time respondent purchased the real estate in question, but the legal title thereto was taken in Mr. Warner's name. The deed to one of the tracts of land was not placed of record by Mr. Warner during his lifetime. The deed to the other tract was placed of record about five years after its date. Mr. Warner, without respondent's knowledge or consent, executed a deed of this last-named tract to his wife, but the deed was not delivered or placed of record. Mr. Warner died on March 11, 1904. After his death his wife, the appellant here, found the deeds among her husband's papers and