June, 1891.] Opinion of the Court-STILES, J. had § 1 been permitted to stand as the law of the state beyond the end of the session of the legislature which passed it, the proposition that this case is covered by it, and that the order was therefore appealable, would be well taken, inasmuch as the order setting aside this judgment was in the nature, at least, of one granting a new trial. Unfortunately, on the 27th day of March, 1890, the same legislature passed another act, which is found upon page 336 of the session laws, in which § 1 of the act of March 22d was entirely repealed. The views of this court upon the subject of appeals in this respect are set forth in the case of Windt v. Banniza, ante, p. 147. We are constrained to hold, therefore, that this court has no jurisdiction to hear this cause in its present condition. However, as both parties appear to have submitted their controversy, it will, perhaps, save further expense and loss of time in this matter if we indicate in this opinion the position in which the facts shown seem to place the case. The principal contention of the appellant is, that the order of the court setting aside the former judgment, and allowing one of the heirs of Mrs. Yesler to appear and defend, was erroneous, in that § 67 of the code, under which the petition was filed, has no reference to such proceedings as were taken by the original petitioner, but claims that the provisions of § 67 apply only to ordinary actions at law or equity. With this view we are inclined to agree, inasmuch as chapter 52 is really a species of proceedings ancillary to the administration of estates in the probate court. In fact, the action therein provided to be taken in the district court is almost universally, in other states, confined to the court having general probate jurisdiction. Pomeroy on Specific Performance, § 497, and note. For some reason or other, the cogency of which is not entirely apparent, our legislature saw fit to impose the duty of passing upon questions of this kind, in the first instance, upon the district court 28-2 WASH. Opinion of the Court-STILES, J. [2 Wash. instead of the probate court, but, although it changed the forum in which the cause was to be heard, we see no indication that there was any intention to change the usual mode of procedure in the probate court, and we should therefore be inclined to hold that the action of the court in setting aside the judgment and allowing the petitioner to defend was unwarranted by statute. On the other hand, however, this proceeding being in the nature of a special probate proceeding, was hedged about with all the rules applying to analogous proceedings in a probate court. It was necessary, therefore, for the district court, both in acquiring jurisdiction and in any final judgment entered by it, to follow the statute strictly. The appellee contends that the notice as published was not sufficient, in that it was not directed to the creditors, heirs, devisees or personal representatives of Mrs. Yesler, who are authorized by § 625 to appear and resist the petition, but only to the personal representatives, "and all persons having an interest in said estate." This point seems hardly to be well taken. The notice contended for would not be required in usual probate proceedings, and we think it was unnecessary here. The next point appellee makes, however, as well as the one which follows it, seem to us to have been defects fatal to the jurisdiction of the court. In the first place, no copy of the petition or notice appears to have been served upon the administrator at any time. True, a summons was served upon him, but that did not take the place of the service required by the statute. Secondly, the hearing was set for June 24th, and the statute requires that such hearing shall be had upon the day fixed by the court, or at such other time as the same may be adjourned to. No adjournment was made, and no further proceedings were taken for more than six months thereafter, and when the judgment was rendered the court therefore had lost all jurisdiction of the matter. This position of the case would seem to have left the court without power either to enter the judgment on the 5th day of March, 1890, or later to entertain a petition on the part of Mrs. Hochstettler to be allowed to appear and defend; for certainly, if the court could not enter a judgment, then neither could it subsequently re-open the case, hear it again, and enter another judgment. The judgment seems to be erroneous, in this: The statute provides that the court may decree a conveyance, but the plain intention of it is that the conveyance is not to be made until after the time for an appeal (six months) shall have elapsed. In the mean time the party entitled to the decree is to be permitted to have possession of the real estate, but the deed is not due until the time for appeal has expired. In this case the deed was ordered forthwith, and, in default of its execution within ten days by the administrator, the commissioner was required to execute it at once. No practice of this kind is provided for. The appeal must be dismissed, and it is so ordered. 2 435 13 310. [No. 167. Decided June 15, 1891.] DEXTER HORTON & Co., Bankers, v. E. E. LONG, Trustee. FORECLOSURE OF MORTGAGE- PLEADING -CORPORATION -ULTRA In an action to foreclose a mortgage the allegation that a party, who is made co-defendant with the mortgagor, has, or claims to have, some interest in, or claim upon, the mortgaged premises, is sufficient without averring the character of the interest. Where a mortgage by a corporation was not authorized by its trustees, but was executed by its president and secretary, who were two of its three trustees, and the corporation received the benefits of the mortgage, the defects in its original execution will be regarded as cured by ratification. 14 526 Argument of Counsel. [2 Wash. Where the complaint in a foreclosure proceeding alleges that $250 is a reasonable attorney's fee, and the answer denies that any greater sum than $100 is a reasonable fee, the court should, in the absence of testimony on the point, find that $100 is a reasonable attorney's fee. Appeal from Superior Court, King County. Action by E. E. Long, trustee, to foreclose a mortgage executed by Builders' Material Company, to which Dexter Horton & Co. were made defendants, on the ground that they claimed to have some interest in the property. The Builders' Material Company never appeared or answered, and judgment was entered against it by default. Dexter Horton & Co. filed its demurrer upon the ground "that said complaint does not state facts sufficient to constitute a cause of action against this defendant." Demurrer overruled, and defendant answered over, denying the allegations of the complaint, but not setting up its interest in the property. Judgment for plaintiff, and Dexter Horton & Co. appeal. Cole, Blaine & De Vries, for appellant. All the corporate powers of a corporation, under the laws of Washington, must be exercised by a board of trustees. Code 1881, § 2425; Gashwiler v. Willis, 33 Cal. 12 (91 Am. Dec. 607); McCullough v. Moss, 5 Denio, 567; Leggett v. Banking Co., 1 N. J. Eq. 541 (23 Am. Dec. 728). The execution of a mortgage is the exercise of a corporate power. Gashwiler v. Willis, 33 Cal. 19 (91 Am. Dec. 607). It is not an ordinary duty of the president and secretary to execute a mortgage. Leggett v. Banking Co., 1 N. J. Eq. 554 (23 Am. Dec. 728); Hoyt v. Thompson, 5 N. Y. 334; Bliss v. Kaweah, etc., Co., 65 Cal. 504. The power to them, if any, must be a delegated power; and such power is never presumed; it must be proved. Twelfth Street Market Co. v. Jackson, 102 Pa. St. 274; Morawetz, Priv. Corp., § 616. June, 1891.] Opinion of the Court-DUNBAR, J. Allen & Powell, for appellee. The allegation as to appellant's interest in the property is sufficient. If appellant desired to maintain its interest in this action it was its duty to plead its interest, if it had any. Poett v. Stearns, 28 Cal. 227, and 31 Cal. 78; Anthony v. Nye, 30 Cal. 402 (89 Am. Dec. 124); 1 Daniel's Chancery, §§ 330, 274, 275, 366; Pomeroy's Remedies (2d ed.), § 341; Mitchell v. Steelman, 8 Cal. 369; Martin v. Noble, 29 Ind. 216. Neither the Builders' Material Company nor appellant can deny the authority of the officers to execute the instrument. 2 Morawetz, Priv. Corp. (2d ed.), § 585, et seq.; Union Nat. Bank v. Matthews, 98 U. S. 621; Jones v. New York, etc., Co., 101 U. S. 622; Wright v. Hughes, 119 Ind. 324 (12 Am. St. Rep. 412); Gordon v. Preston, 1 Watts, 385 (26 Am. Dec. 75); Beecher v. Rolling Mill Co., 45 Mich. 103. The defendant, the Builders' Material Company, has, by its silence and acquiescence in, and acting under and appropriat ing the fruits of, the contract, estopped itself and those claiming under it from denying its validity. Zabriskie v. Cleveland, 23 How. 384; Bissell v. Jeffersonville, 24 How. 287; County v. Emigrant Co., 93 U. S. 124; Gas Co. v. City of San Francisco, 9 Cal. 453; Pixley v. Railroad Co., 33 Cal. 192 (91 Am. Dec. 623); Hitchcock v. Galveston, 96 U. S. 341; Oakland v. Rier, 52 Cal. 270; Argenti v. City of San Francisco, 16 Cal. 256; Main v. Casserly, 67 Cal. 128; Wright v. Hughes, 119 Ind. 324 (12 Am. St. Rep. 412); Jones v. New York, etc., Co., 101 U. S. 622; Union National Bank v. Matthews, 98 U. S. 621. The opinion of the court was delivered by DUNBAR, J.-We are of the opinion that, construing the complaint together, and considering the relief prayed for, the complaint is simply for a foreclosure of a mortgage, and that the question of whether or not the vendor's lien exists in this state is not in issue in this case. There were |