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for the costs and disbursements in this action." While the plaintiff had no property interest in the water itself, he had an interest in it as it passed along through his land as it was wont to run, and a wrongful and unlawful interference so as to materially interrupt or dimin ish the natural flow of the stream to plaintiff's damage would constitute a cause of action. The county attorney, representing the defendant, conceded that the acts of the board were unlawful, and that the Special Laws of 1891 (chap. 381) relating to the improvement of the navigation of Lake Minnetonka, and establishing and maintaining a uniform height of water in said lake, under which they assumed to act, was unconstitutional, and insisted that such acts were ultra vires, and hence no action against the county could be maintained. Upon this concession of appellant's attorney, and certain allegations in the answer, the question to be determined is the liability of the defendant.

enjoining the defendant from maintaining the | (3) For the recovery of $500 as damages, and same so as to interrupt the natural flow of the water in the stream mentioned. The trial court, among its other findings of fact, also found "that the plaintiff, by reason of the construction and maintenance of the dam as above stated by the defendant, and the consequent obstruction of and interference with the natural and customary flow of the waters of said Minnehaha creek, has been deprived of the natural use of said waters, and is thereby subject to hindrance and great inconvenience in and about the operation of his said mill, to his damage in the sum of $500. And as conclusions of law: (1) That the plaintiff is entitled to judgment herein for the abatement of said dam so erected and maintained by the defendant board, so far as said dam obstructs the natural flow of said stream. (2) For a perpetual injunction ordering and requiring defendant to lower said dam 5 inches from the top thereof, and for such a width as was the natural width of the original bed of said stream. supervisors to adjust all claims against their respective counties, and the sum so fixed and defined shall be subject to no appeal, did not prevent an action against a county for infringement of a patent, as this provision had no application to claims for torts.

within twelve months, as that question was not passed upon by the court below.

Under Miss. Rev. Code, 419, art. 34, providing that any person having a just claim against any county which is disallowed may bring suit against the board of police, it was held that it was questionable whether a demand for damages arising out of a tort was "a claim" within the meaning of this section. Sutton v. Carroll County Bd. of Police, 41 Miss. 236.

In Brabham v. Hinds County Supers. 54 Miss. 363,

It was held that under Neb. Comp. Stat. 1889, chap. 18, § 37, providing for presentation of claims to the county, this claim was not required to be presented, as unliquidated demands from a tort did not have to be presented, as $4 of the Statute of 1889, providing that the person sustaining a dam-28 Am. Rep. 352, it was held that the Mississippi age from a defective bridge may recover, and that action should be brought within thirty days, did not contemplate presenting the claim to the county board. Hollingsworth v. Saunders County, 36 Neb. 141.

And where an action for damages to realty was brought against the county within twelve months from the time the cause of action arose, the action was not barred because plaintiff failed to present the same for auditing. It was held that the bringing of the suit within the time limited was a sufficient presentation of the claim within the meaning of Ga. Code, § 507, providing that all claims against counties must be presented twelve months after they accrue or become payable, or the same are barred. Dement v. De Kalb County, 97 Ga. 733.

But in Maddox v. Randolph County, 65 Ga. 216, a county was held not liable for injuries received from a defective bridge, where the claim was not presented to the ordinary for auditing within twelve months from the time of entry, under a statute requiring all claims against counties to be presented within twelve months after they accrue or the same are barred.

In Dement v. De Kalb County, 97 Ga. 733, the case of Maddox v. Randolph County, 65 Ga. 216, was distinguished, as in that case the action was commenced after the expiration of the twelve months with no previous presentation of the claim, and this identical question had never been definitely decided by this court. It was said that Code, § 506 (act December 15, 1871), merely directed the county officials as to what they should do with such claims when presented, and did not change the pre-existing law contained in § 507, or impose upon claimants any additional burden.

In Arnett v. Decatur County Comrs. 75 Ga. 782 the court refused to decide whether or not an action was barred because of failure to present the claim to the board of county commissioners, under Ga. Code, § 507, providing for presentation of claims and barring the same unless suit is brought

statute, providing for "demands," "accounts," and "claims" to be audited and allowed, were such liabilities of the county as were provided for by some statute.

In Chick v. Newberry & Union Counties, 27 S. C. 419, it was held that a claim for damages caused by the sinking of a county ferry boat was not such a claim as should first be presented to the county commissioners and then into court by means of appeal, as an action for damages for alleged negligence on the part of the county commissioners should not be left for them to be judges in their own case.

In Prady v. New York City & County Supers. 2 Sandf. 460, Affirmed in 10 N. Y. 260, it was said that 1 N. Y. Rev. Stat. 385, § 4, providing that accounts for county charges of every description shall be presented to the board to be audited by them, and 1 Rev. Stat. 384, tit. 3, § 1, providing that where any "cause of action” shall exist between a county and an individual such proceedings shall be had at law or in equity for trying and finally settling the same, in like manner and with like effect as in similar suits or proceedings between individuals and corporations, were "intended to provide a remedy against a county for such causes of action, and no other, as could not be presented to and examined and allowed by the board of supervisors, as county charges of this class would be claims for the malfeasances of county officers and claims arising from torts for which the county may be liable."

In Newman v. Livingston County Supers. 45 N. Y. 689, it was said that claims growing out of malfeasance of county officers and claims for which the county may be liable arising from torts are not necessarily to be presented for examination and allowance.

Where a county treasurer had misappropriated town moneys, and used the same for the benefit of the county, it was said: "While this has been styled an action for money had and received by the

The stream, dam, and property in question | build the dam in question, and therefore the are all situated in the county of Hennepin, county is not liable for the resultant damages. and whatever was done by the county com- But this contention is inconsistent with demissioners was done in pursuance of apparent fendant's defense as alleged in its answer. legislative authority, and under a legislative There it expressly affirms the doings of its offiact in terms conferring the power to act in the cial board; alleges that its acts were lawful, manner admitted and proved. Some of these and that it did no more than it had a legal acts were done pursuant to legislative enact-right to do, in the erection and maintenance of ments prior to the passage of chapter 381, said dam. It not only fails to plead that the Special Laws 1891, but the dam in question acts complained of were ultra vires, but it was erected subsequent to the passage of that adopts, assumes, and ratifies the acts comact, and by virtue of its apparent authority: plained of, and, by its pleadings, insists that and it is this act which appeilant's counsel such acts were right, proper, and legal, and concedes to have been unconstitutional, and also insists that such acts were performed unhence he asserts that, the acts of the board of der a public necessity. This is therefore not a county commissioners being tortious and un- mere act of negligence of the board of county authorized, the defendant is not liable in dam commissioners in the performance of an offiages for whatever the members of the board cial duty, but an active and affirmative tort, may have done in the premises, -in other done under claim of statutory authority and words, that Hennepin county had no right to duty, and justified upon such ground by decounty to and for the use of the town it is really an action based upon wrong,-the misappropriation of the money by the county through its agent the treasurer;" and it was held that where a claim against a county is one based upon the wrong committed by or attributable to it, the ciaimant is not bound to submit it to the board of supervisors for audit and allowance. Kilbourne v. Sullivan County Supers. 137 N. Y. 170.

In McClure v. Niagara County Supers. 50 Barb. 594, which was an action under the statutory liability for damages by mobs, it was held that it was not necessary to present the claim to the board of supervisors of the county for allowance before the action was commenced.

IN MARKEY V. QUEENS COUNTY it was contended by the respondent that the claim should have been presented to the county for auditing before suit. The court of appeals did not refer to this question in the opinion, which denied any recovery for injury from a defective bridge.

But in Albrecht v. Queens County, 84 Hun, 399, it was said that if a claim for damages for a defective bridge could be maintained it should first be submitted to the board of supervisors, under N. Y. Laws 1892, chap. 686, art. 2, § 12, subs. 2, providing that the board of supervisors shall annually audit all accounts and charges against the county.

IX. Summary.

In summarizing the foregoing cases it may be said that the weight of authority is conclusive against imposing any implied liability on counties for negligence in the construction, care, and use of public property, or for torts or negligence of county employees, and as the authorities are so many and set forth in the above note, they are not recapitulated.

The exceptional cases imposing implied liability for injuries caused by defective bridges may be resolved into those of four states, Maryland, Pennsylvania, Iowa, Indiana, but the recent Indiana cases have overruled all the former cases and are now in line with the weight of authority, and in Iowa the exceptional rule is not applied to small bridges.

In regard to roads, Maryland, which makes an exception and applies the same rule as that governing bridges, stands alone.

In regard to personal injuries from negligence of an employee, in a Missouri case, a liability was affirmed on the ground that the injury arose in discharge of a self-imposed duty not enjoined by any law, which is a very fine-drawn distinction.

For injuries to real property from locating dams or bridges, there is some conflict. Some of the affirmative cases can be sustained on the theory of taking or damaging property without compensation.

For infringement of patent the weight of authority is in favor of imposing a liability, and this is worked out through the Federal statute.

The reasoning in the negative cases, which accept Russell v. Men of Devon as the leading case, generally is based on the doctrine that a county is a subordinate political division of the state, and stands in the same attitude as a state, which cannot be sued without a statute authorizing such an action. A distinction is also made in nearly all the cases between counties and cities by denying the same liability against counties that is applied to cities; but many cases, whilst following the rule denying a liability, affirm that there is no distinction in principle between the two corporations. Of course in this summary no attention is paid to cases where the liability is imposed by statute, and it may be said in conclusion, without admitting the soundness of the principle evolved in so many cases, that the mass of authorities deny the liability of counties for negligence or tort of its officials, and refuse to apply the same liability as in city

cases.

The exceptional cases in the above note imposing an implied liability on counties for negligence or torts of counties are as follows:

For injuries to persons from defective bridges: Park v. Adams County Comrs. 3 Ind. App. 536; Morgan County Comrs. v. Pritchett, 85 Ind. 68; Pritchett v. Morgan County Comrs. 62 Ind. 210; House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; Bonebrake v. Huntington County Comrs. 141 Ind. 62; Fulton County Comrs. v. Rickel, 106 Ind. 501: State, Roundtree, v. Gibson County Comrs. 80 Ind. 478, 41 Am. Rep. 421; Jackson County Comrs. v. Nichols, 139 Ind. 611; Vaught v. Johnson County Comrs. 101 Ind. 123: Gibson County Comrs. v. Emmerson, 95 Ind. 579; Patton v. Montgomery County Comrs. 96 Ind. 131; Sullivan County Comrs. v. Arnett, 116 Ind. 433; Knox County Comrs. v. Montgomery, 109 Ind. 69; Clark County Comrs. v. Brod, 3 Ind. App. 585; Spicer v. Elkhart County Comrs. 126 Ind. 369; Goshen v. Myers, 119 Ind. 196; Shelby County Comrs. v. Deprez, 87 Ind. 509; Wabash County Comrs. v. Pearson, 120 Ind. 426; Allen County Comrs. v. Bacon, 96 Ind. 31; Howard County Comrs. v. Legg, 110 Ind. 479; Porter County Comrs. v. Dombke, 94 Ind. 72; Allen County Comrs. v. Creviston, 133 Ind. 39; Sullivan County Comrs. v. Sisson,

For injury from operating a drawbridge we 2 Ind. App. 311; La Porte County Comrs. v. Ellshave a Louisiana case and a New Jersey case.

worth, 9 Ind. App. 566; Apple v. Marion County

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fendant, and that it was performed within the scope of the board's official duty. It comes into court, and, by its pleadings and evidence, attempts to uphold the wrongs it has done by its officials, and persists in the continuance of this wrong, but, by contention of counsel, insists that it is not liable in damages, because its acts were unconstitutional, unauthorized, and void. Not only this, but it insists upon retaining the benefits of the illegal acts of its officers. It is not willing that the wrong shall cease, but aggressively insists that it will make no reparation for its past tort, and that it has a legal right to enjoy in the future all the bene fits secured through an unconstitutional law. If valuable property rights can thus be taken, destroyed, diverted, and injured without compensation, there will be but little safety in the private ownership of property. We may concede the general rule to be that the defendant Comrs. 12 Ind. 553; Shelby County Comrs. v. Blair, 8 Ind. App. 574; Parke County Comrs. v. Wagner, 138 Ind. 609; Boone County Comrs. v. Mutchler, 137 Ind. 140: Reinhart v. Martin County Comrs, 9 Ind. App. 572; Madison County Comrs. v. Brown, 89 Ind. 48; Parke County Comrs. v. Sappenfield, 10 Ind. App. 609. (But these Indiana cases were all overruled in the following cases: Johnson County Comrs. v. Hemphill, 14 Ind. App. 219; Cowan v. Adams County Comrs. 142 Ind. 699; JASPER COUNTY COMRS. V. ALLMAN; Montgomery County Comrs. v. Coffenberry, 14 Ind. App. 701.)

In other states the cases affirming liability are: Cooper v. Mills County, 69 Towa, 350; Morgan v. Fremont County, 92 Iowa, 644; Ferguson v. Davis County, 57 Iowa, 601; Huff v. Poweshiek County, 60 Iowa, 529; Roby v. Appanoose County, 63 Iowa, 114; Davis v. Allamakee County, 40 Iowa, 217; Weirs v. Jones County, 80 Iowa, 351; Casey v. Tama County, 75 Iowa, 655; Krause v. Davis County, 44 Iowa, 141; Hughes v. Muscatine County, 44 Iowa, 672; Huston v. Iowa County, 43 Iowa, 456; Wilson v. Jefferson County, 13 Iowa, 181; Brown v. Jefferson County, 16 Iowa, 339; Albee v. Floyd County, 46 Iowa, 177; Moreland v. Mitchell County, 40 Iowa, 394; Van Winter v. Henry County, 61 Iowa, 684; Newcomb v. Montgomery County, 79 Iowa. 487; Nims v. Boone County, 68 Iowa, 642; Kendall v. Lucas County, 26 Iowa, 395; Homan v. Franklin County, 98 Iowa, 692; Kennedy v. Cecil County Comrs. 69 Md. 65; Baltimore County Comrs. v. Baker, 44 Md. 1; Eyler v. Alleghany County Comrs. 49 Md. 257, 33 Am. Rep. 249; Chesapeake & O. Canal Co. v. Alleghany County Comrs. 57 Md. 201, 40 Am. Rep. 430; Prince George's County Comrs. v. Burgess, 61 Md. 29, 48 Am. Rep. 88; Humphreys v. Armstrong County, 3 Brewst. (Pa.) 49; Armstrong County v. Clarion County, 66 Pa. 218, 5 Am. Rep. 368; Shadler v. Blair County, 136 Pa. 489.

To travelers from defective roads: Harford County Comrs. v. Hamilton, 60 Md. 340, 45 Am. Rep. 730; Anne Arundel County Comrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Alleghany County Comrs. v. Broadwaters, 69 Md. 533; Calvert County Comrs. v. Gibson, 36 Md. 229; Kennedy v. Cecil County Comrs. 69 Md. 65.

To persons from condition of buildings: Escape of prisoner: Brown County Comrs. v. Butt, 2 Ohio, 348; Richardson v. Spencer, 6 Ohio, 13. But these cases were overruled in Hamilton County Comrs. v. Mighels, 7 Ohio St. 109.

To persons from negligence or torts of employees: Hannon v. St. Louis County, 62 Mo. 313. Injuries to real property:

From construction or use of bridge: Tyler v. Tehama County, 109 Cal. 618 (Const.); Chester County

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would not be responsible for the unauthorized and unlawful acts of its officer, done colore officii; but when the defendant itself expressly authorizes such act, or, when done, adopts and ratifies it, and retains and enjoys its benefits, and persists in so doing, it is liable in damages. The law applicable to a case of this kind is well stated in the case of Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157, as follows: There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time; if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature of the duties v. Brower, 117 Pa. 647 (Const.); Harford County Comrs. v. Wise, 71 Md. 43; Riddle v. Delaware County, 156 Pa. 643.

Injury to property from operating a drawbridge: Houston v. Police Jury, 3 La. Ann. 566; Ripley v. Essex & Hudson Counties Chosen Freeholders, 40 N. J. L. 45.

By roads and road officers:

Injunction and damages: Coburn v. San Mateo County, 75 Fed. Rep. 520; Cummings v. Kendall County, 7 Tex. Civ. App. 164; McCann v. Sierra County, 7 Cal. 121.

Injury to property from dam: SCHUSSLER V. HENNEPIN COUNTY COMRS.

Injury for sewage nuisance: Lefrois v. Monroe County, 48 N. Y. Supp. 519.

Infringement of patent: May v. Mercer County, 30 Fed. Rep. 246; May v. Ralls County, 31 Fed. Rep. 473; May v. Johnson County, Fed. Cas. No. 9, 334; May v. Fond du Lac County, 27 Fed. Rep. 695; May v. Logan County Comrs. 30 Fed. Rep. 250; May v. Saginaw County, 32 Fed, Rep. 629; May v. Jackson County, 35 Fed. Rep. 710.

Tearing down building and taking vault: Rhoda v. Alameda County, 69 Cal. 523.

On dissolution of injunction: Freeman v. Lee County Supers. 66 Miss. 1.

Suffering hog to become diseased: Rowland v. Kalamazoo County Supers. of Poor, 49 Mich. 553.

Diverting water (not decided): Fenton v. Salt Lake County, 3 Utah, 423.

Under the statute of Winton, 13 Edw. I., providing that if the country does not apprehend the felons within forty days an action lies against the inhabitants of the hundred where the robbery was committed for the money or goods whereof the party was robbed, and under some other similar statutes making the hundred liable for destroying turnpikes, cutting hop binds or destroying corn to prevent exportation, for wounding officers of the customs, demolition of works, many cases are given in Comyn's Dig. title, Hundred, c, 2-5.

For liability of county for property destroyed by mob, see Gianfortone v. New Orleans (C. C. E. D. La.) 24 L. R. A. 592, note.

Cases in regard to counties like San Francisco and St. Louis counties, when the city and county are the same in territory, are omitted from this note.

This note is not intended to include injunction suits against counties for nuisances unless damages were claimed, or cases under eminent domain where proceedings were had but were void or irregular, or cases against counties for collecting an illegal tax.

I. T.

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and functions with which they are charged, ! The court is therefore of opinion that the city by their offices, to act upon the general sub- of Boston may be liable in an action on the ject-matter; and especially if the act was done case, where acts are done by its authority with an honest view to obtain for the public which would warrant a like action against an some lawful benefit or advantage,-reason and individual, or where, after the act justice obviously require that the city, in its has been done, it has been ratified by the corcorporate capacity, should be liable to make poration by any similar act of its officers." good the damage sustained by an individual in consequence of the acts thus done. It would be equally injurious to the individual sustaining damage, and to the agents and persons employed by the city government, to leave the party injured no means of redress, except against agents employed, and by what at the time appeared to be competent authority to do the acts complained of, but which are proved to be unauthorized by law.

We do not pass upon the constitutionality of chapter 381, Special Laws 1891, relative to the proceeding had by the board of county commissioners, but our opinion in this respect is based upon the concession of appellant's counsel. Points raised by counsel and not discussed in this opinion have been examined and considered, but are deemed immaterial. Judgment affirmed.

WASHINGTON SUPREME COURT.

R. T. SMITH, and Wife, Respts.,

v.

Brown v. Simpson, 4 Kan. 76; Greeno v. Barnard, 18 Kan. 518; Kauffelt v. Bower, 7 Serg. & R. 64;-Hiester v. Green, 48 Pa. 96, 86 Am.

John H. ALLEN and Wife, Impleaded, etc., Dec. 569; Edminster v. Higgins, 6 Neb. 265;

Appts.

(........ Wash.........)

1. The legislative adoption of so much of the common law as is applicable to the condition of the state of Washington does not in

clude vendor's liens.

2. A vendor's lien for unpaid purchase money does not arise by implication on a conveyance of land without creating a lien by any reservation in the deed or any agreement between the parties.

(October 6, 1897.)

APPEAL by defendants Allen and wife from

a judgment of the Superior Court for Clallam County in favor of plaintiffs in an action brought to foreclose an alleged vendor's lien. Reversed.

The facts are stated in the opinion.
Mr. J. C. Allen, for appellants:

Philbrook v. Delano, 29 Me. 410; Peck v. Culberson, 104 N. C. 425; Richards v. Arms Shingle & Lumber Co. 74 Mich. 57; Dean v. Dean, 6 Conn. 285; Arlin v. Brown, 44 N. H. 102; Perry v. Grant, 10 R. I. 334; Wragg v. Comptroller General, 2 Desauss. Eq. 509; 2 Jones, Liens, SS 1061 et seq.

While it is true a great many of the states have adopted the lien, most all of them in later cases have lamented the doctrine, and in a great number it has been abolished by statute.

Conover v. Warren, 6 Ill. 498, 41 Am. Dec. 196; Hammond v. Peyton, 34 Minn. 529; Porter v. Dubuque, 20 Iowa, 440; Bayley v. Greenleaf, 20 U. S. 7 Wheat. 46, 5 L. ed. 393.

Even Lord Eldon looked upon the doctrine with disfavor.

Mackreth v. Symmons, 15 Ves. Jr. 329.

Before a party can be sued and a judgment obtained against him for the contract price of real estate it must be made to appear that a deed to the property has been made and ten

The court should have granted the change of dered. It is true that in the case at bar a con

venue.

2 Hill's Code, § 158, 159, 161.

It was properly shown to the court that neither of the defendants resided in Clallam county, or had ever resided there, but that, on the contrary, all of the defendants were, and had for many years been, residents of Kings county.

Where property has been conveyed by deed, absolute upon its face, there is in this state no vendor's lien for unpaid purchase money, unless such lien is reserved in the deed, or by agreement of the parties.

Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449; Simpson v. Mundee, 3 Kan. 176;

NOTE.-As to the adoption of the common law, see McKennon v. Winn (Okla.) 22 L. R. A. 501, and note; also Gatton v. Chicago, R. I. & P. R. Co. (Iowa) 28 L. R. A. 556; and Davis v. Chicago, M. & St. P. R. Co. (Wis.) 33 L. R. A. 654.

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1 Jones, Mortg. 4th ed. § 340; Henry v. Davis, 7 Johns. Ch. 40; Odell v. Montross, 68 N. Y. 500; Smith v. Brand, 64 Ind. 427; Hart v. Eppstein, 71 Tex. 752; 1 Dembitz, Land Titles, § 96, p. 730, note No. 125.

Mr. George C. Hatch, for respondents:

The grantor's implied lien for unpaid purchase money exists in this state by force of having incorporated into its law the common law of England.

28 Am. & Eng. Enc. Law, topic, Vendor's

Lien.

Reavis, J., delivered the opinion of the ord. This is true of agreements subjecting

court:

Action instituted by plaintiffs (respondents) against defendants (appellants) to enforce a vendor's lien upon certain real property in Clallam county. In substance, the complaint is that respondents sold and conveyed by absolute deed to appellants 80 acres of land, situated in Clallam county, and that defendants promised and agreed to pay the sum of $1,000 in instalments from time to time, as they were able, and as plaintiffs needed the same; that the agreement to purchase was in writing; and that defendants paid on the contract the sum of $635.62, and refused to pay the balance. The complaint concludes with a prayer for judgment against the defendants for the balance of the sum alleged to be due on the purchase price of the land, and that it be declared a first lien on the premises, as a vendor's lien, and that the specified premises be sold to satisfy the same.

Defendants at the time of the commencement of the action were all residents of King county, and the defendants Allen each appeared and demurred to the complaint, and filed a motion to change the venue to King county. Suffi cient affidavits showing the residence of all the defendants in King county, and also affidavits of merit, were at the same time filed. The superior court denied the motion for a change of venue on the ground that the suit was one to enforce a vendor's lien for balance due of the purchase price of the premises conveyed by respondents to defendant Allen. After the demurrer was overruled, the defendants answered, and a trial was had, and judgment for plaintiffs, with a decree establishing a vendor's lien, and ordering a sale of the premises before mentioned. The superior court evidently overruled the motion for a change of venue on the ground that the action was local, because of the enforcement of a vendor's lien. Sections 158, 159, 161, 2 Hill's Code, control the venue of the action. The defendants having at the proper time shown that they were residents of King county, the motion to change the venue was not addressed to the discretion of the court, but was a matter of right with the defendants.

real property to voluntary liens or encumbrances, as in the case of mortgages, and is also required in that large class of claims of lien which are authorized by statute. Evidently the policy of our registry acts is against secret liens. The vendor's lien, originally, as recognized in England, was devised by courts of equity, to enforce the rights of a grantor of real property against the grantee, who might remain in possession after the execution of an absolute deed, and yet refuse to pay the purchase price, or any balance remaining due thereon. The inability to subject land by process of law to execution for a simple-contract debt was recognized by the English chancellors as requiring a remedy. Hence the invention of a lien in favor of the vendor for the purchase price promised to be paid for land. The vendor's lien, at the time it originated and was enforced, was also less inconvenient and injurious against innocent purchasers or encumbrancers of land in England than in this country. The general policy of the law in England did not facilitate commerce in land, as here. The law there was rather favorable towards holding landed estates together, and did not assume to make transfers easy. Thus real estate was usually improved and regularly cultivated, the ownership long established and well known, and the transfers comparatively few, and usually better known than among our people. Here land is essentially a subject of trade and commerce, transfers are easy and simple, and purchasers and encumbrancers look to the record for their information. vendor's lien in England seems to have been involved in some uncertainty, and its limitations not very well understood until the case of Mackreth v. Symmons, 15 Ves. Jr. 329, decided in 1808 by Lord Eldon. In this case the learned chancellor thought "the doctrine is probably derived from the civil law as to goods." The case, however, reviews the doctrine, and the source of its origin, and the reasons and authorities by which it is supported. The final grounds upon which it has been rested are natural equity, the supposed intention of the parties, and a trust arising out of the unconscientiousness of the vendee's hold

The

Mr.

The question of jurisdiction to try the actioning the land without paying the price. is determined, not by the remedy requested, but by what the facts alleged in the complaint entitle plaintiffs to receive; and thus the question presented for decision here is whether real property which has been conveyed by absolute deed is subject to a vendor's lien for unpaid purchase money, where no such lien has been reserved by the deed or by any agreement between the parties. No case in this state has been called to our attention where the ques tion has necessarily arisen and been decided heretofore. It is true, the expression "vendor's lien" has been used perhaps a number of times by the court, but where the lien itself, as the foundation of a right, was not necessarily involved. The policy deduced from the uniform course of legislation in this state relative to conveyances of real estate and the title thereto has been to enlarge the scope of the recordation of all instruments affecting real estate. Only conveyances by deed are recognized, and encumbrances are required to be placed on rec

Justice Gibson of Pennsylvania, in Kauffelt v. Bower, 7 Serg. & R. 64, meets this argument thus: "The implication that there is an intention to reserve a lien for the purchase money in all cases where the parties do not, by express acts, evince a contrary intention, is in almost every case inconsistent with the truth of the fact, and in all instances, without exception, in contradiction of the express terms of the contract, which purports to be a conveyance of everything that can pass." But the theory that a trust arises out of the unconscientiousness of the purchaser would construe the nonperformance of every promise made in consideration of a conveyance of property to the promisor into a breach of trust, and would attach the trust, not merely to the purchase money which he agreed to pay, but to the land, which he never agreed to hold for the benefit of the supposed cestui que trust. The earliest cases upon this subject in England were decided long after the first colonial settlements

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