said Neeson that she was selling the whole of such real estate as the property of the estate of Emil Freiner, deceased. Many exceptions are taken to the findings of the court by counsel for appellants, but there is only one pertinent proposition in this case, and that is whether the administratrix is estopped from raising the question of the validity of the sale to Neeson. It must be conceded that Whitney can take no better title to the land than his grantor, Mrs. Frances Freiner, had. The findings of the court, we think, are substantiated by the record in the case, most of which is documentary. It is the contention of the appellants that the status of this property as community property continued until, by reason of some act of the parties or by reason of the law, such status changed, and that such change occurred upon the execution and delivery of the deed from Emil Freiner to Frances Freiner; that the court had no jurisdiction to order the sale of the property which by public record appeared to be the property of Frances Freiner; that it is a fact which exists that gives the court jurisdiction to sell real estate, and not the representations made in the declaration of the administratrix through the inventory filed. Many cases are cited by counsel for appellants to the effect that an administrator who sells his own property as property of the decedent is not estopped from claiming title to his own property notwithstanding such sale, and no doubt there are many authorities to this effect as a general proposition. cided the case somewhat upon the testimony, saying that there was no direct evidence that Mary A. Smith did not pay for the property, and that there was a conflict of evidence as to who actually paid the purchase money. The alleged trustee and beneficiary both died before the commencement of the action. All that the court said on this proposition is the following: "The appellant contends that, plaintiff representing in his petition for letters testamentary of the will of Mary A. Smith that said property belonged to her estate and filing an inventory of her estate, which included said property, J. P. Smith was estopped from afterwards claiming that it was his own. In Carter v. McManus, 15 La. Ann. 676, the court says: "That admissions made by an executor or administrator in the course of judicial proceedings are made for the benefit of the estate represented by him, and do not conclude his individual right by way of estoppel.' Another case very much in point is Werkheiser v. Werkheiser, 3 Rawle (Pa.) 326. The facts in this case fall short of what is required to constitute an estoppel." So that it will be seen that that case was decided on the authority of Carter v. McManus, supra, and of Werkheiser v. Werkheiser, supra. An examination of those cases elicits the fact that they fall far short of the matters which are claimed to be matters of estoppel in this case. In Carter v. McManus all that was decided was that an application made by the executor named in the will to have the will probated was not a judicial admission which would estop the executor from claiming as his own property disposed of in the will. In Werkheiser v. Werkheiser it was decided that the presentation of a petition to the orphans' court, setting forth that the petitioner's father died seised of the premises therein described, leaving a widow and seven children, and praying the court to award an inquest, to make partition, etc., does not estop the petitioner from afterwards maintaining an ejectment for the same premises, and proving that they were the estate of his mother who was his father's first wife, and descended to him as her heir, to the exclusion of his brothers and sisters, the children of a second wife. Under such circumstances, the court said that such allegations would in most cases operate very slightly, if at all, against him; that nothing more was done in the case; that the plaintiff committed an error in presenting the petition, and probably, upon discovering his mistake, relinquished the proceedings under it and adopted an action of ejectment. In none of these cases was the land sold and other parties misled to their injury. The first case which is strongly relied upon by the appellants is Anthony v. Chapman, 65 Cal. 73, 2 Pac. 889. In that case the general doctrine contended for was no doubt announced in the syllabus, viz., that an executor who represents in his petition for letters testamentary that certain property belonged to the estate of the decedent, and files an inventory including such property, is not thereafter estopped from claiming the property as his own. But, upon an examination of the case itself, the syllabus may be considered as too broad. In that case the property did not go to sale. The plaintiff claimed under a conveyance from one Bird to Mary A. Smith. The defendants claimed that this conveyance was made to Mary A. Smith in trust for one J. P. Smith, who, they claimed, paid the consideration therefor, and from whom they derived title. Mary A. Smith left a will appointing J. P. Smith her executor. He applied for letters testamentary, and in his petition represented that the property in controversy was a portion of the estate of the testatrix, and also included it in the inventory of the estate filed by him. J. P. Smith died pending the The American Law of Administration by administration, and the plaintiff was ap- Woerner, § 480, cited by the appellants, only pointed administratrix with the will annex-announces the undoubted rule that, so far as ed, and hence the contest over that particu- covenants and words of warranty in an ad their official capacity or duty, their effect is the attainment of justice under the multilimited to the estate alone, and they in no plied transactions of modern times, and hence manner affect the personal right or liability the equitable estoppel of the present day. of the administrator; citing the instance The well-understood idea of equitable estopthat, where a widow administratrix in exe- pel is that, where a person wrongfully or cuting specific articles of sale by her deceas- negligently by his acts or representations ed husband under order of the orphans' court causes another who has a right to rely upon conveyed all her husband's estate and her such acts or representations to change his own, in law and equity she was held not bar- condition for the worse, the party making red of her dower which was the only interest such representations shall not be allowed to she had in the land. Many of these cases plead their falsity for his own advantage. are dower cases, where the wife's right is This is an extreme case, where there can be more or less a technical right, and it would no question that the doctrine of equitable esbe reasonable to suppose that she might not toppel should apply. We would not lay down think when she was selling the estate of the the harsh rule, such as seems to have been husband that there would be any claim that laid down in some of the cases cited by the her dower would be conveyed. A very posi- respondent, that under all circumstances the tive, and it seems to us somewhat dogmatic representations made by an administratrix statement is made in Baker v. Brickell, 87 through inventory filed would estop her from Cal. 329, 25 Pac. 489, a case cited by appel- questioning the conveyance of her own interlants, where the court, noticing this phase est; for there might be an honest mistake of the case, says: "The other circumstances, which in good conscience she ought to be alviz., the facts that Maria Baker qualified and lowed to show or explain away. But in this was appointed as administratrix of John H. case the representation was not only made in Baker, and put the land in suit on the inven- the declaration of what property belonged to tory returned by her to the probate court as the estate, but by petition to sell, by solemn assets of her intestate's estate in the admin- deed of conveyance, by holding out to the istration of the estate, are entirely immate- world, and especially to the respondent, that rial. We are aware of no law by which a the property which the administratrix now person appointed administrator loses his land claims was the property of the estate, whereby so acting. There is no estoppel on Maria by she obtained presumably as an heir of Baker to claim her own property under such Freiner an interest in the money obtained for circumstances. She no doubt acted in this the land sold. But the record also shows matter through ignorance of her rights, or, if that the creditors of this estate had raised advised at all, from having been improperly some question as to the validity of the sale to counseled." This as a general proposition Mrs. Freiner, and that it was agreed between we think is probably too sweeping a state- the administratrix through her attorney and ment of the law; the question of estoppel the creditors through their attorney that this being largely a question of fact. We think it particular piece of land should be sold as unnecessary to review cases cited by coun-property of the estate. It also shows that sel for respondent. They announce squarely personally she represented to the purchaser the other doctrine, viz., that under such circumstances the administrator, or administratrix as the case may be, is estopped. But these cases must all be considered with reference to the particular circumstances involved in the case. It makes no difference in this particular case whether the court acted with jurisdiction to sell the property. The deed of the administrator conveyed the property in terms to the purchaser, and in terms it was a deed, and the only question is whether, under the circumstances as shown by the record, the administratrix is estopped from questioning its validity and asserting her own title. Estoppel is an equitable proceeding, or, speaking more accurately perhaps, it is the equitable result of a wrongful proceeding or act, a reliance upon which would in the absence of an estoppel work an injustice to an innocent person. At the common law estoppel was founded on deeds and records of courts, but estoppel in equity is estoppel in pais. The principle now applies because it has been found that the commonlaw rule was too narrow and inadequate for that he was to receive title to all of the estate described in the inventory, if he would bid upon the same. Under such circumstances, it would be an outrage upon justice to permit the administratrix or her grantee to question the validity of the deed conveying the property in controversy. The judgment of the court is affirmed. RUDKIN, C. J., and MOUNT, CROW, and PARKER, JJ., concur. WINGARD v. WINGARD. (Supreme Court of Washington. Dec. 16, 1909.) DIVORCE (§ 298*)-CUSTODY OF CHILDRENWELFARE OF CHILD. The welfare of children is the controlling consideration in determining the custody as between divorced parents. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 781-787; Dec. Dig. § 298.*] Department 1. Appeal from Superior Court, Walla Walla County; Thos. H. Brents, Judge. *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Proceedings between Luella Wingard and Charles Leo Wingard. From the judgment, Charles Leo Wingard appeals. Affirmed. motion was granted; and, a motion for a new trial being denied, plaintiffs appeal. Upon reviewing the record, we are of the Cain & Hurspool, for appellant. H. S. opinion that the court was in error in susBlandford, for respondent. GOSE, J. This suit is waged between divorced parents over the custody of their daughter of the age of 14 years. The trial court, after according a full hearing to the respective parties, awarded the custody to the mother. The father has appealed. An attentive consideration of the evidence has convinced us that the judgment is in harmony with the welfare of the child. This is the controlling consideration in questions of this character. The daughter has reached an age when she should not be deprived of the society, influence, and guidance of her mother, unless reasons of the gravest character demand it. Such reasons do not now exist. Neither a review of the evidence nor a statement of its general tenor would serve any useful purpose. Our conclusion is upon all the facts that the judgment should be affirmed; and it is so ordered. RUDKIN, C. J., and FULLERTON, CHADWICK, and MORRIS, JJ., concur. taining the challenge and dismissing the action. The evidence was to the effect that re spondents represented the land as being tillable and suitable for irrigation with water rights; that between 50 and 60 acres were under cultivation with about 30 acres in alfalfa, two sets of buildings, and all fenced. when as a matter of fact there was no alfalfa on the place, none of the land had been prepared for cultivation, no water rights had been obtained, no irrigation ditches constructed, and that in other respects the land was not as represented. With such evidence we cannot understand why a prima facie case had not been made out. Without citing other authority, or discussing the case further, in view of the fact that a new trial must be had, we think the case is controlled by the decision of this court in Wooddy v. Benton Water Co., 102 Pac. 1054, and upon the authority of that case the judgment is reversed, and the cause remanded for a new trial. RUDKIN, C. J., and GOSE, FULLERTON, and CHADWICK, JJ., concur. BAILIE et al. v. PARKER et al. (Supreme Court of Washington. Dec. 16, 1909.) WINGARD v. WINGARD. VENDOR AND PURCHASER (§ 44*)-FRAUDULENT (Supreme Court of Washington. Dec. 17, 1909.) REPRESENTATIONS IN SALE ACTION FOR DAMAGES EVIDENCE. A purchaser makes out a prima facie case against his vendors for damages for fraudulent misrepresentations in the sale by evidence that they represented the land was tillable and suitable for irrigation with water rights, that 50 or 60 acres were under cultivation with 30 acres in alfalfa, that there were sets of buildings on it, and that it was all fenced, and that as matter of fact none of it was in alfalfa or prepared for cultivation, and that no water rights had been obtained, and that otherwise it was not as represented. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 71; Dec. Dig. § 44.*] Department 1. Appeal from Superior Court, Spokane County; W. T. Warren, Judge. Action by I. W. Bailie and others against W. T. Parker and others. Judgment for defendants. Plaintiffs appeal. Reversed and remanded for new trial. Belt & Powell, for appellants. John M. Gleeson and Joseph F. Morton, for respondants. MORRIS, J. Appellants brought this action to recover damages for fraudulent misrepresentations in the sale of certain lands in Oregon. At the conclusion of their case, respondents challenged the sufficiency of the testimony and moved for a dismissal, which 1. HUSBAND AND WIFE (§ 254*)-COMMUNITY PROPERTY. A wife's mother in possession of land belonging to W. abandoned it, and permitted the husband and wife to occupy it, and the husband negotiated with W. for its purchase, but rejected a quitclaim deed. The pair continued in occupation and improved the land for several years, when the wife left and secured a divorce, in the complaint for which she described the land as community property, but the decree did not mention it. Pending an action of ejectment by W. against the husband, he purchased the property from W. on the terms first proposed, and the action was dismissed under a stipulation that W. had no further interest. Held that, the pair being mere trespassers, they acquired no rights by occupancy, either individually or as a community, but the husband acquired the land to hold the land subject to partition as communiby his independent purchase, and it was error ty property. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 897, 898; Dec. Dig. § 254.*] 2. ESTOPPEL (§ 97*)-ADMISSION IN JUDICIAL PROCEEDING-PARTIES TO WHOM ESTOPPEL IS AVAILABLE. There being no equity in favor of a wife as to property which she and her husband occupied, but in which they acquired no community interest, but which the husband purchased subsequent such land, avail herself of admissions by him in to divorce, she could not, in a suit to partition his answer in the divorce suit. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 289; Dec. Dig. § 97.*] Department 1. Appeal from Superior Court, Walla Walla County; Thos. Thos. H. Brents, Judge. Proceedings by Luella Wingard against Charles L. Wingard for partition of land as community property. From a judgment for plaintiff, defendant appeals. Reversed and dismissed. Appellant contends that, the first negotiations for the land having failed, it could not, after the dissolution of the marriage, be impressed with a community character, that the decree in the divorce suit was res judicata, and that his purchase was an independent transaction, made in his own behalf and with his own funds which he had borrowed for Herbert C. Bryson, for appellant. H. S. that purpose. On the other hand, respondent Blandford, for respondent. CHADWICK, J. The parties to this action were married in the year 1892, and such relation continued until March 21, 1906. This suit is brought to recover a half interest in a certain tract of land alleged to be the property of the parties and acquired during coverture. The evidence shows that prior to 1898 the mother of respondent was in the occupation of a certain five-acre tract of land near the city of Walla Walla, belonging to the Woodsville Guaranty & Savings Bank, a New Hampshire corporation, and that she had had some correspondence with the bank with reference to the purchase of the property. In that year she abandoned possession of the land and such rights as she may have had therein, and permitted the Wingards to move onto the property. In 1901 negotiations were opened by appellant, through an attorney, for the purchase of the land, a price was agreed upon, and a deed executed and sent to the Baker-Boyer National Bank for delivery. The deed was in form a quitclaim, and for that reason was rejected by the appellant. Nothing further was done toward consummating the transaction by either party, although the Wingards continued to occupy the land, and had put some considerable improvements thereon. In 1905 respondent left appellant, and, after a due season, began an action for divorce in Pierce county, Wash. In her complaint she described certain property which she asserted to be community property. included the property now in controversy. The suit for divorce was transferred, upon motion of the defendant, appellant here, to Walla Walla county, where it went to trial upon appellant's answer and cross-complaint; respondent thereafter defaulting. In that case the court made a decree awarding the community property, but no mention is made of the tract now sought to be charged. The decree of divorce was entered March 21, 1906, and on June 15, 1906, the Woodsville bank began suit in ejectment against appellant who had remained in possession of the property. Pending this suit negotiations were resumed between appellant and the attorneys for the bank, which resulted in the payment of the sum then agreed upon as the purchase price, and a dismissal of the suit under a stipulation that the Woodsville bank had no interest and was not then the owner of the land. The trial court found that the property was community property, She contends, and the court so held, that, because the property was more valuable than the price paid and because the purchase price as finally agreed upon was the same as that first agreed upon, with interest, and considering the residence and improvements made by the parties when living there as husband and wife, the land was in equity subject to partition as community property. Reliance is also put upon allegations in the answer subscribed by appellant in the ejectment suit, in which appellant sets up his interest as accruing at the time of his first negotiations, and also upon the stipulation in which the bank agreed that at the time it had no interest. The case is submitted on the facts without reference to any authorities to aid us in our solution of the problem, and in the time we have had to devote to this case our own research has been equally unavailing. However, considering the equities of the case, we are forced to disagree with the learned trial judge. Respondent cannot recover, for, under the admitted facts in the case, there was no time from the date of the original occupancy until the divorce was granted, or until the ejectment suit was settled, that appellant or respondent either as a community or acting as individuals could have maintained an action to compel a conveyance. Their rights rested upon no equities whatever. They were trespassers while there as husband and wife, and thereafter appellant continued in simple trespass of the rights of the bank. Their occupancy was never hostile. The bank was at no time bound in equity to convey to them, or either of them, the land, or any part thereof. When the decree of divorce was signed, it could not operate upon this land, for the reason that neither the husband nor the wife had any interest in it either in law or equity, nor did the court attempt to award it, although its attention was called thereto by the original complaint in the action. While there is a dearth of authority to cover this case, it seems to be somewhat analogous to the case of Hall v. Hall, 41 Wash. 186, 83 Pac. 108, 111 Am. St. Rep. 1016. In that case a husband and wife had settled upon vacant government land. The land had not been surveyed, and was not open for filing. They had lived on the land for several years, when the wife brought an action for divorce, which was granted. About a year thereafter the husband filed upon the land, and, within another year, he proved up and obtained a patent, tacking his residence open, so that his title depended upon some L. H. Prather and C. G. Pence, for appelof the time that his divorced wife resided lants. C. O. Anderson and C. Staser, for rewith him. Upon the death of the husband, spondents. the first wife brought an action, asserting a community interest in the land. It was held that the only interest that the decedent (the husband) had in the property at the time of the divorce was a right of occupancy coupled with a preference right to enter the land and acquire title thereto after the same was thrown open for settlement; that his right to the land depended upon continued residence and future compliance with the requirements of the homestead laws; and that, therefore, the wife had no equity in the land whatever. So in this case the parties had a mere occupancy without the right of occupancy. Title to the land depended upon a contract and payment, which was not made or consummated until after the divorce proceeding, and then only as a result of the ejectment suit. If the divorced wife could not recover in that case, assuredly there can be no recovery in this. There being no equity in favor of respondent, she cannot avail herself of any admissions in the answer in the ejectment suit. Nor is she benefited by the terms of the stipulation. The one was an allegation with no foundation in fact. The DUNBAR, J. This action was brought to recover the sum of $1,084.86, alleged to be due for goods sold and delivered by the plaintiffs to defendants. The writ of attachment issued and was served upon defendant Erickson, and certain property taken. A writ was also issued to the sheriff of Franklin county, which was served upon defendant Lawrence. Defendant Erickson moved to dissolve this attachment, and a hearing was had and the motion was finally denied. The grounds for attachment are set forth as follows, after stating the amount claimed to be due: "And that the defendants are about to convert their property into money for the purpose of placing it beyond the reach of their creditors, and that the defendants are about to convert a part of their property into money for the purpose of placing it beyond the reach of their creditors, and especially these creditors." The case was tried mostly upon affidavits, and some oral testimony was also given. From an examination of the statement of facts, we are forced to the conviction that the court erred in not sustaining the motion to dissolve the attachment. The burden is upon the party plaintiff to sustain the allegations of the affidavit. It was decided by this Pac. 503, that, where a motion to discharge an attachment is presented supported by affidavits challenging the existence of the court in Bender v. Rinker, 21 Wash. 633, 59 RUDKIN, C. J., and GOSE, FULLERTON, grounds upon which the attachment has isand MORRIS, JJ., concur. On a motion to dissolve an attachment, challenging the existence of the grounds on which it was issued, the burden is on plaintiff to sustain the allegations of the affidavit. [Ed. Note.-For other cases, see Attachment, Cent. Dig. § 862; Dec. Dig. § 249.*] 2. ATTACHMENT (§ 249*) - DISSOLUTION-MOTION-DETERMINATION. On a motion to dissolve an attachment, issued on the ground that defendant was about to place his property beyond the reach of creditors, evidence held such that the motion should have been granted. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 870, 871; Dec. Dig. § 249.*] Department 2. Appeal from Superior Action by R. H. Nichoson and others against John Erickson and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed. sued, it becomes the duty of the plaintiff to establish one or more of such grounds by a fair preponderance of the evidence at the hearing. The evidence in this case bearing upon the right of the appellants to have this motion sustained is very brief. The first affidavit presented on the part of the respondents was that of H. J. Duffy, one of the respondents, which was to the effect that Ericktract from the respondents to do subwork in son and Lawrence, who had taken the conthe construction of the Lower Yakima Irrigation Company's Canal, had during their work under contract drawn supplies from the company to the amount of $1,084; that Erickson and Lawrence quit work, and refused to work any further for the respondents; that he offered them work at the going cash prices; that he saw Erickson and asked him if he would sell his outfit, which consisted of horses, scrapers, tents, cooking utensils, etc.; and that Erickson told him he would take $1,200 for them. Duffy also swore that he offered to buy $35 worth of lumber from Erickson, but Erickson told him that Lawrence had sold it to another party. He said that in his opinion the outfit was worth something like $700, and that he offered to take the same and credit |