Mar. 1903.]

Opinion of the Court.-HADLEY, J.

the introduction of any evidence on the ground that the complaint fails to state a cause of action under any of the provisions of the statute authorizing the summary procedure of forcible entry and detainer. The averments of the complaint seem to combine the conditions enumerated in subdivision 1 of § 5525 with those named in § 5549, Bal. Code. It alleges that the entrance was without right, unlawful, and by means of breaking open windows and doors. The method of entrance alleged is covered by $5525, supra, and other allegations, in their legal effect, show that the appellants were not, prior to the time alleged, in possession of the premises. Further allegations that the entrance was without permission of the owner and without color of title are in accord with $ 5549, supra. But there is a failure to embody in the complaint an abstract of respondent's title as required by $5550 of the same chapter. Respondent not having made a statement of his abstract of title, the appellants were not required to answer affirmatively on the subject of title, and the complaint did not, therefore, tender the issue contemplated by §§ 5549 to 5551, inclusive, Bal. Code. The only issue that can be said to be tendered by the complaint is the naked one of possession in the respondent. No question of title is involved.

"It is well settled that title is not involved in either a criminal prosecution for, or a civil action of, forcible entry and detainer, and that, therefore, as a general rule, evidence thereof is inadmissible." 13 Am. & Eng. Ene. Law (2d ed.), p. 753.

For respondent to recover it must appear that he was in actual possession of the property when appellants forcibly entered. The only fact alleged that tends to show that respondent was then in possession is that he was the owner

Opinion of the Court.-HADLEY, J.

[31 Wash.

of the fee simple of the property. But such an allegation, even though proven, is held to be alone insufficient to show possession. Sanchez v. Loureyro, 46 Cal. 641; Townsend v. Van Aspen, 38 Ala. 572; McGuire v. Cook, 13 Ark. 448. One may be the fee simple owner and yet he may neither be in actual possession nor have any immediate right to possession. We think it was error to admit evidence under the allegations of the complaint. Respondent could not recover unless he was in possession, and he did not allege facts which showed him to be in actual possession. At most, they showed no more than right of possession. But actual possession is necessary for his recov ery under other allegations of the complaint.

Assuming, however, that the court properly ruled that evidence showing possession could be introduced under the complaint, we find that two deeds were admitted in evidence over objection, one running to the respondent's grantor and the other from the latter to respondent. It was stated that they were not offered for the purpose of showing title in respondent, but only as tending to show possession in him. But whatever weight might properly have been given to the deeds for that purpose, still upon the trial respondent and his counsel admitted that the deed to respondent's grantor was made as security for an advancement of money. It was therefore no more than a mortgage, and respondent holds by no greater right than did his grantor, the mortgagee. It may have been the theory of the court that, even though respondent admittedly held only the rights of a mortgagee, it might be shown that he held as a mortgagee in possession. But the allegation of the complaint is that he held as owner only; and, even if that allegation showed possession, it is not supported by the proof, which is inconsistent therewith. The

Apr. 1903.]

Syllabus.

evidence shows that appellants claim to hold as tenants of the party who made the deed to respondent's grantor, which deed, under the admission in the record, was only a mortgage. Appellants challenged the legal sufficiency of the evidence at the close of the testimony and moved the court to decide as a matter of law that a verdict should be found for the appellants, that the jury be discharged, and judgment entered for appellants. We think, even if it were held that the court did not err in admitting testimony at the beginning, that this motion should have been granted.

Respondent seems to have permitted this case to go by default in this court, and has filed no brief. As we understand the record, the cause should be reversed for reasons. stated above. The judgment is reversed and the cause remanded, with instructions to the trial court to grant the challenge to the evidence and enter judgment for appellants.

FULLERTON, C. J., and MOUNT, ANDERS and DUNBAR, JJ., concur.

[No. 4626. Decided April 1, 1903.]

ISAAC A. DOSSETT, Respondent, v. ST. PAUL AND TACOMA LUMBER COMPANY, Appellant.

DEFECTIVE BOND NECESSITY FOR SUBSTITUTION OF NEW

APPEAL

BOND.

The use of the term "plaintiff" instead of "defendant" in an appeal bond reciting as a condition that if defendant will pay to plaintiff all costs and damages that may be awarded against said "plaintiff" on the appeal or the dismissal thereof, the appeal having been taken by defendant, is so manifestly a clerical error

Opinion Per Curiam.

[31 Wash. as not to affect the substance of the bond nor create a necessity for the substitution of a new bond in correction thereof.

Appeal from Superior Court, Pierce County.-Hon. WILLIAM O. CHAPMAN, Judge. Motion to substitute appeal bond denied.

Reynolds & Griggs and Stiles & Doolittle, for appellant. Ellis & Fletcher, for respondent.

PER CURIAM.-Appellant moves this court for leave to correct its appeal bond filed with the clerk of the superior court by the substitution of a new bond with the same sureties and in the same words as the original bond, with the exception that the word "defendant" is used in the condition of the new bond proposed instead of the word "plaintiff," as used in the original. The original bond is in words and figures as follows:

"Know all men by these presents, that the St. Paul & Tacoma Lumber Company, a corporation, the defendant in the above entitled action, as principal, and Geo. Browne and Jno. S. Baker, as sureties, are held and firmly bound unto Isaac A. Dossett, the plaintiff in the above entitled action, in the penal sum of two hundred ($200) dollars, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our and each of our heirs, executors, administrators and successors, firmly, jointly and severally by these presents.

Sealed with our seals and dated this 9th day of December, 1902.

The condition of this obligation is such that whereas a certain judgment was entered in the above entitled action by the above named court on Nov. 22, 1902; and

Whereas, said defendant, the St. Paul & Tacoma Lumber Company, a corporation, has appealed from the said judgment to the supreme court of the State of Washing

ton;

Now, therefore, if the said defendant, the St. Paul & Tacoma Lumber Company, a corporation, will pay to the said plaintiff, Isaac A. Dossett, all costs and damages that may be awarded against said plaintiff on said appeal or on the dismissal thereof, not exceeding $200, then this obligation shall be null and void; otherwise to remain in full force and effect."

The bond is signed in proper form by both principal and sureties, and the sureties have duly qualified by the usual affidavit. It will be observed that the words used are in all respects regular and the meaning of the bond is clear and beyond dispute, unless the last paragraph thereof is involved so as to render its meaning doubtful. The essential words urged as being involved are as follows: "Now, therefore, if the said defendant. will pay to the said plaintiff ages that may be awarded against said plaintiff on said appeal or on the dismissal thereof.

all costs and dam

." The context

shows clearly that the word "plaintiff" as last used was intended to refer to the defendant. No costs would be awarded against the plaintiff in the event of the dismissal of the appeal, since he has not appealed. The costs would necessarily be awarded against the defendant who is the appellant. The body of the bond shows that the defendant and the sureties undertook to pay the plaintiff the sum of $200, for the reason that the defendant has appealed to this court, and it is manifest that the undertaking is for the benefit of the plaintiff and to secure him in the payment of costs to which he may become entitled on the appeal or on its dismissal. Any other construction would lead to the somewhat absurd conclusion that the defendant has undertaken to pay the plaintiff the very costs which the defendant itself may recover against hinr on appeal. The misuse of the one word is so manifestly