Opinion of the Court-DUNBAR, J. [2 Wash. some allegations in the complaint which were not necessary to a complaint in foreclosure, but they were subject to a motion to strike, and were not grounds of demurrer. The demurrer, we think, was properly overruled. It is contended by the appellant that the complaint should have alleged what interest the appellee had in the lands which plaintiff sought to foreclose. The sufficiency of the complaint in this respect, it seems to us, is established by almost universal usage. The form prescribed by Estee is: "The defendant has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage." This is substantially the same as the tenth allegation in the complaint in this clause, and is all the allegation that is necessary. The defendants' answer was a general denial, and their claim, if they had any, was not disclosed. It is claimed by the appellant that this was not a disclaimer of interest, and that it put in issue the fact that it was subject to plaintiff's lien, and cites Elder v. Spinks, 53 Cal. 293, in support of its contention. This case evidently sustains appellant's theory, but is in conflict with the earlier California authorities, and, we believe, with the well established and generally recognized practice. In Anthony v. Nye, 30 Cal. 402 (89 Am. Dec. 124), it was held that 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 or claim upon the mortgaged premises, is sufficient without averring the character of the interest; and Judge SAWYER, who rendered the opinion, says: "The allegation of her claim and interest is in the form universally adopted and long established. The plaintiff is not supposed to know the nature of every person's claim. It is enough that a claim is set up. It is the defendant's business, when thus called upon, to disclose its nature. There is no personal judgment against the wife. If she has no claim, she is in June, 1891.] Opinion of the Court-DUNBAR, J. no way injured. If she has any, she has had an opportunity to present it. There is neither merit nor plausibility in the objection"—the objection being that the complaint did not disclose the defendant's interest. To the same effect, see Mitchell v. Steelman, 8 Cal. 363; Pomeroy on Remedies (2d ed.), § 341. We think the doctrine laid down by the earlier California courts much more in harmony with the general rules governing pleadings than the doctrine promulgated by the latter case, and therefore feel bound to follow it. The only object in making Dexter Horton & Co. parties to the suit was to settle any claim that they might set up to the mortgaged premises. The object of the law in permitting this is to avoid a multiplicity of suits, so that all claimants may have their rights adjusted in one action. Another objection raised by the appellant is, that the mortgage was not executed by the trustees of the defendant corporation, but that the president and secretary, by whom the mortgage was executed, had no authority to enter into such a contract, and that it was therefore ultra vires. Even conceding that the contract was ultra vires, and that the appellant has placed himself in a position in this case to legally allege it, under the testimony in this case it will not avail against the plaintiff. The corporation was attempting to execute a bona fide mortgage. It was within the power of the corporation to execute it, and its officers and agents were trying to carry out the will of the corporation. There were but three trustees, and two of them signed the mortgage, but not as trustees. They did not go through the form of an authorization by resolution, but a majority of those who had power to pass the resolution, by a short cut, brought about the result which the resolution would have authorized. The formality of the resolution, it is true, was omitted, but the corporation taking possession of the property by virtue of the mortgage indorsed its execution, and if there were any techni Opinion of the Court- DUNBAR, J. [2 Wash. cal defect in its original execution it has been cured by acquiescence and ratification. Where money has been obtained by a corporation upon its securities, which are irregular and ultra vires, but the money was applied for the benefit of the company with the knowledge and acquiescence of the stockholders, the company and the shareholders are estopped from denying the liability of the company to repay it. In re Cork & Youghal Ry. Co., L. R. 4 Ch. App. 748. And a court of equity abhors forfeitures, and will not lend its aid to enforce them. Marshall v. Vicksburg, 15 Wall. 146. Neither will it give its aid to the assurance of a mere legal right contrary to the equity and justice of the case. Lewis v. Lyons, 13 Ill. 117. In this case the contract is not executory, but is executed, and a stronger rule obtains in favor of the validity of the contract. Says the supreme court in Bradley v. Ballard, 55 Ill. 413 (8 Am. Rep. 656): "But if any one of the parties proceeds in the performance of the contract, expending his money and his labor in the production of values which the corporation appropriates, we can never hold the corporation excused from payment on the plea that the contract was beyond its power." Such we believe to be the doctrine of the authorities. generally. We have examined the other points raised by appellant, and are unable to find any error. All the facts found by the court are, in our opinion, justified by the testimony, with the exception of the fact that $150 is a reasonable attorney's fee. The complaint alleged $250 as a reasonable attorney's fee. The answer denied that any greater sum than $100 is a reasonable attorney's fee in this case. There being no testimony offered on this point, and as the reasonableness of an attorney's fee, when denied, must be proven as any other fact, the court should have found that $100 was a reasonable attorney's fee, and rendered judg ment accordingly. The case will be remitted to the lower ANDERS, C. J., and SCOTT and STILES, JJ., concur. 2 441 10 118 J10 123 27* 267 38*1061 [No. 187. Decided June 15, 1891.] FLETCHER R. FIELDS, SIMON G. FIELDS AND NANCY E. 38*1063 DIVORCE-DIVISION OF PROPERTY - FRAUDULENT CONVEYANCE CUSTODY OF CHILDREN. Under 2007, Code 1881, the court decreeing a divorce has power to make division of all the property of the parties, whether it is community or separate property, and the court will consider through whom the property was acquired merely as a circumstance to aid it in making an equitable division. Where a man, just prior to commencing a suit for divorce, conveys to his brother all his real and personal property, including his home, without receiving any cash payment therefor, or any written security, without any definite time of payment agreed upon, and dependent upon the grantee's verbal promise to give him some money from time to time, the conveyance will be held fraudulent as against the wife. A decree awarding the custody of children to the wife, although her conduct may not be entirely blameless, will be upheld where it is shown that the husband is in the habit of getting under the influence of liquor, that he has treated his wife harshly and cruelly, sometimes striking her, and has made charges of adultery against her which he has failed to sustain. Appeal from Superior Court, Walla Walla County. D. J. Crowley, and Geo. T. Thompson, for appellants. Opinion of the Court-Dunbar, J. [2 Wash. The opinion of the court was delivered by DUNBAR, J.—This action is brought by the plaintiff against the defendant for a decree of divorce, the division of the property, and the custody of the minor children. It seems from the testimony that the plaintiff and defendant commenced living together in 1873; that a marriage license was obtained; that they went to a neighboring town for the purpose of getting married, but returned without having the marriage ceremony performed; that they represented themselves as husband and wife; that they lived and cohabited together as husband and wife; that several children were born to them; that they conveyed and encumbered land as husband and wife; and that in the community in which they lived they were generally thought to be husband and wife; that this state of affairs existed until about three years before the commencement of this action, when they had the marriage ceremony performed in the statutory form. At the time they commenced living together in 1873 the defendant had no property, and the plaintiff had property variously estimated at from two to eight thousand dollars. The court below found it was worth $3,000, which was probably a reasonable valuation. There are now living two minor children the fruits of their union, to wit: Maud May Fields, aged twelve years; and Fletcher R. Fields, Jr., aged five years. The complaint alleges that the parties plaintiff and defendant were intermarried on February 6, 1888; alleges cruel and inhuman treatment on the part of the defendant towards plaintiff, and charges defendant with adultery with divers persons, some named and others unnamed. The answer of the defendant is a denial of the adultery and of the cruel and inhuman treatment charged, and alleges various acts of cruelty on the part of the plaintiff, such as frequently and falsely accusing her of adultery with divers and sundry people, applying to her in |