19 490 42 485 Opinion of the Court- REAVIS, J. [19 Wash. fall within the inhibition against increasing the salary of a public officer. Yates v. National Home, 103 U. S. 674; Mullett's Adm'x v. United States, 150 U. S. 566 (14 Sup. Ct. 190). The writ is denied. SCOTT, C. J., and DUNBAR and GORDON, JJ., concur. [No. 2947. Decided June 17, 1898. | R. C. BISHOP, Respondent, v. G. W. AVERILL et ux., AMENDMENT OF PLEADINGS -DISCRETION OF COURT. An application by defendants to amend their answer so as to question the individual liability of one of them, made at the commencement of a second trial after the cause had been once tried and appealed on the same pleadings, is a matter peculiarly within the discretion of the superior court, and its action will not be disturbed in the absence of a showing of abuse of such discretion. Appeal from Superior Court, Spokane County.-Hon. Stoll, Stephens, Bunn & Macdonald, for appellants. The opinion of the court was delivered by REAVIS, J.-This is the second appeal in this cause. The first was heard and determined and is reported in 17 Wash. 209 (49 Pac. 237), and the exhaustive discussion, with the full statement of facts there found renders it unnecessary to re-state the case here. There was, further, an opinion on a petition for rehearing, 17 Wash. 222 (50 Pac. 1024). The cause is now here again and the appellants complain June, 1898.] Opinion of the Court REAVIS, J. that the superior court erred in overruling appellant's objection to the introduction of any evidence against the appellant Flora A. Averill, and in overruling her motion subsequently made to direct a verdict in her favor, and that the court erred in denying appellant's application to amend their answer. Several errors are assigned upon the ruling of the superior court upon the admission of evidence in the case, but in the view here taken of the controversy the introduction of, or objection to, such testimony was immaterial. The cause had been tried in the superior court upon the same pleadings and heard upon appeal in this court. The liability of Flora A. Averill seems to have been questioned by appellants only at the commencement of the last trial, and appellants then requested to file an amended answer, which was resisted by the respondent. At this stage in the history of the cause it was a matter peculiarly within the discretion of the superior court whether an amended answer could be filed and such discretion evidently was not abused. In view of the complete review of the essential features of this cause in the former opinion of the court, we do not think that it would be of any value to again discuss many of the questions or much of the argument made by appellants. The judgment of the superior court is affirmed. SCOTT, C. J., and DUNBAR, ANDERS and GORDON, JJ., concur. Opinion Per Curiam. [19 Wash. [No. 2942. Decided June 18, 1898.] SAMUEL H. VER PLANCK, Respondent, v. CHARLES LEE et al., Defendants, A. P. MCCLAINE et ux., Appellants. MORTGAGE ASSUMPTION BY AGENT RATIFICATION. Although a deed of mortgaged premises containing an assumption of the mortgage debt may have been taken by an agent of the grantees without their knowledge or consent, the action of the agent must be regarded as subsequently ratified, when it appears that the grantees afterwards made payments of interest on the debt and conveyed the premises by warranty deed, covenanting that they were the owners in fee simple. Appeal from Superior Court, King County.-Hon. WILLIAM HICKMAN MOORE, Judge. Affirmed. Sharpstein & Blattner, for appellants. PER CURIAM.-The question presented by the appeal in this case is whether the appellants are liable to a personal judgment for the amount of a debt secured by a mortgage upon land conveyed to them by the mortgagor, and is entirely one of fact. It is contended that the deed to the appellants which assumed the mortgage was taken by an agent without their knowledge and authority. So far as the time the deed was taken is concerned this may be conceded, and still we are of the opinion that the judgment should be affirmed. It clearly appears that the appellants knew thereafter that they were the owners of the real estate for they subsequently conveyed the same by their warranty deed covenanting that they were the owners in fee simple; it appears by the proofs, especially by a letter of McClaine, the husband, that the appellants June, 1898.] assumed and agreed to pay the mortgage debt. Whether Affirmed. (No. 2939. Decided June 18, 1898.] MANHATTAN TRUST COMPANY, OF NEW YORK, Appellant, v. SEATTLE COAL AND IRON COMPANY, Defendant, MURPHY, GRANT & Co. et al., Respondents. The capitalization of a coal mining company at $5,000,000 is not shown to be fraudulent by the fact that the property of such corporation consisted of coal lands purchased by the promoters of the corporation for a sum less than $100,000, where the grantors did not know the full value of the land and some sold for less than they believed it worth for the purpose of developing that section of the country, and estimates obtained by the promoters showed that there were more than 10,000,000 tons of coal in the land, which could be put on the market at a profit or from one to two dollars per ton. The fact that the holder of a mortgage covering both real and personal property undertakes to enforce the claim under the mortgage, though the mortgage on the personalty is invalid, is not sufficient to establish fraud on the part of the mortgagee. A mortgage executed by a company while it was solvent is not fraudulent as to general creditors, where there was no fraud in the original incorporation of the company, and the stock was all issued as fully paid up, the mortgage duly recorded, and the debts of such general creditors incurred long afterwards. 19 493 f20 18 A judgment giving priority to the claims of certain general creditors of a corporation over the holders of bonds secured by a trust deed executed by such corporation, rendered in an action to foreclose such deed brought by the trustee therein, is conclusive on all the bond-holders, where the trust deed provided that such trustee should be trustee for all the bond-holders and have the exclusive right to bring suit on the request of a majority, and that no bond-holder should be entitled to sue without having first requested the trustee to sue. The general creditors of a corporation cannot complain that a decree in an action to foreclose a trust deed executed by the corporation, in which all the creditors were made parties, provided for the sale as an entirety of all the property of the corporation, including personalty not covered by the trust deed, where no request for a separate sale of the personalty was made, and no appeal taken on that point by the party objecting. General creditors of a corporation whose claims have been adjudged prior to the claims of holders of bonds secured by a trust deed do not relinquish their priority as against the bondholders by inviting certain other creditors to come in and participate on paying them a percentage, where there was no intention to relinquish their priority and their claims would have been paid in full, even if such other creditors had been allowed to participate. A proceeding for the appointment of a receiver for a coal and iron company, which operated a short railroad line in connection with its mines, should not be treated as a railroad receivership so as to give precedence to claims for supplies furnished in the conduct of the business a few months prior to the receiver's appointment, as the essential element of a railroad receivership the maintenance of the operation of the road for the benefit of the public-is lacking. Appeal from Superior Court, King County.-Hon. WILLIAM HICKMAN MOORE, Judge. Reversed. Struve, Allen, Hughes & McMicken, Condon & Wright, and S. H. Piles, for appellant. Bausman, Kelleher & Emory, Strudwick & Peters, Donworth & Howe, Preston, Carr & Gilman, and Burke, Shepard & McGilvra, for respondents. |