acquired under the homestead laws of the United States.

In Bolton v. Power Co., 10 Wash. 246, 38 Pac. 1043, the facts were as follows: Husband and wife established a residence upon a United States homestead in August, 1865, and lived thereon, in full compliance with the requirements of the law, until the 15th day of June, 1871, when the wife died, and final proof was made on June 14, 1872, by the husband, and a patent thereafter issued to him. The husband thereafter married a second wife, and they together executed and delivered a warranty deed to the premises. The purchasers had no knowledge whatever as to the manner in which the title was acquired, further than was disclosed by the records of the auditor's office, which upon their face showed a perfect chain of title from the government to their grantors. The decision was put mainly upon the ground that the record title was perfect in the defendants and their grantors, they having no notice of any facts which tended to impugn the validity of such title and were purchasers for value. The conclusion reached was by a majority of the court, as then constituted, two members not concurring, and Chief Justice Dunbar filing an elaborate dissenting opinion, and the principle stated has not since been reaffirmed.

* *

The separate property of the wife is defined in section 4489. 1 Ballinger's Ann. Codes & St.: "The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof. Had Mrs. Forker any property or pecuniary right in the premises at the time of her marriage? She had entered upon the land, qualified to enter it under the homestead laws of the United States. She remained in sole possession for four years, improved, cultivated, and resided thereon. She had made expenditures of money, which was her own, in some improvements. She had such possession as entitled her to prevent trespass and intrusion on the premises, and, upon compliance with the full term of five years' residence, she was entitled to a patent.

In Burch v. McDaniel, 2 Wash. T. 58, 3 Pac. 586, it was adjudged that a promissory note executed by the purchaser of the right to possession of a settler upon a pre-emption claim was founded upon valid consideration, and it was observed by the court: "Bare possession of anything of value, of which exclusive possession may possibly and lawfully be had, is property, and is valuable, and ordinarily the transfer or relinquishment of such possession is good consideration for a contract." It is apparent that the rule thus stated with reference to possession of land under the preemption laws is equally applicable to such possession under the homestead laws. lt would seem that, under the homestead laws, residence and improvement are required as

conditions precedent to the grant of the title. It is evident that equities attach upon such settlement and improvement which entitle the settler to the continued possession and ultimate title. A consideration of the authorities from those states in which the community property law exists seems to establish the principle: "If either spouse before the marriage has acquired an equitable right to property, which is perfected after marriage, the property is separate." There is perhaps considerable uncertainty as to a uniform rule concerning the right of the community to reimbursement, out of the separate estate of the spouses benefited, for expenditures of money and time and effort made in performing conditions and perfecting and completing the title. But the rule also seems to prevail in favor of the community as to the title initiated during the community and perfected after the dissolution of the marriage. In the first case, the title takes effect as of time before the community, and the property is therefore separate; and in the other as of a time during the community, and is therefore community property.

Thus, in the case of Barbet v. Langlois, 5 La. Ann. 212, the husband and wife intermarried in the year 1818. At the time of the marriage, the husband owned and possessed a tract of land fronting on the Bayou Plaqumine, under the title confirmed by the United States. In May, 1822, during the marriage, he purchased from the United States, by virtue of his right of preference as front proprietor, the double concession, or lands lying in the rear of his estate. By law, every person who owned a tract of land bordering on a river, creek, bayou, or water course, was entitled to a preference in becoming the purchaser of the vacant land adjacent to and back of his own tract, and three years were given to file applications, under the provisions of the act. The court observed, in holding that it was separate property: "It is true that the land was not purchased from the United States until after Langlois' marriage, but the 'cause' of the acquisitions may be fairly considered as having preceded the marriage. It was because he was the owner of the front land-an ownership acquired long before that, under the liberal legislation of congress, he was allowed a preference to enter, and that, too, at a low price, specific lands, which may perhaps have been worth much more. We therefore think the land so acquired was his separate property."

In Succession of Morgan, 12 La. Ann. 153, the principle was again affirmed.

In the case of Morgan v. Lones, 80 Cal. 317, 22 Pac. 253, it was determined that the occupant of lands for whose benefit the town site acts were passed has an equitable interest in the lands, and, if such occupant is an unmarried woman and marries, such interest is her separate property; and this is so, although the patent from the government to the

municipal authorities has not issued. The property does not become community property from the fact that the husband advanced the funds necessary to get a conveyance from the municipal authorities. In support of the same principle are found the cases of Harris v. Harris, 71 Cal. 314, 12 Pac. 274, and Labish v. Hardy, 77 Cal. 327, 19 Pac. 531.

In the case of Gardner v. Burkhart, 4 Tex. Civ. App. 590, 23 S. W. 709, Gardner, when anmarried, entered upon and improved 160 acres of land, and made application therefor under the homestead laws of Texas, which, In the principle requiring residence and improvement, followed those of the United States, and thereafter divided the tract with a brother, but continued to live thereon. He

afterwards married, and made application for 55 more acres adjoining the tract upon which he lived, and patent was issued to him therefor for the 135 acres, which he continued to occupy as a home. Upon these facts, it was held that the original 80 acres located and improved by Gardner was his separate estate; and a similar conclusion was reached in Lawson v. Ripley, 17 La. 238. In our state, the rents, issues, and profits of separate property│ retain the separate character, while in Louisiana and Texas, deraigned from the Spanish ganancial system, these acquets went into the community. So here the improvements put upon the homestead by the appellant were her separate property, and whatever of value she added to the premises prior to her marriage, or after, from her separate estate, still continued her separate property. It is not disclosed by the testimony that the community contributed anything of value upon the premises. We conclude that the superior court erred in its decision that the homestead was community property. It was, upon the facts disclosed, the separate property of the appellant.

2. The only exception found in the record here, to the instructions of the court, was to its action in withdrawing the homestead from the case, but numerous exceptions were taken to testimony admitted to show agency alleged to have been given the husband by the wife to make the contract set up by defendants. Some of these exceptions were well taken, for witnesses were permitted to state declarations of the husband which should not have been admitted, and, in view of the fact that the cause must be reversed and a new trial had, it is deemed proper, though no exception was taken to the instructions of the court, to suggest that the testimony at the trial seemed to determine, as a matter of law, that the lands purchased by appellant from the Northern Pacific Railroad Company were her separate property. The cause is reversed, and remanded for further proceedings not inconsistent with this opinion.

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

(21 Wash. 243)

STATE ex rel. HYLAND v. PETER. (Supreme Court of Washington. June 19, 1899.) ELECTION CONTEST-RES JUDICATA-MARKING BALLOTS-HARMLESS ERROR.

1. 1 Hill's Ann. St. & Codes, § 634, providing that in cities of the third class the city council shall determine election contests between candidates for city offices, is not exclusive; and a decision of the city council of such city as to which of two contestants is entitled to a city office is not a bar to quo warranto proceedings at the instance of one of the parties to the contest to determine the title to such office, where the city council had neither by ordinance nor otherwise provided for carrying on or determining such contest.

2. A ballot marked with a cross in the space above the designation of a political party, so that one stroke of the cross extends into the space opposite such party's designation, cannot be counted for the candidates of that party; the mark not being a mark opposite the political designation of a group of candidates, within 1 Hill's Ann. St. & Codes, § 385, authorizing an elector to vote for all the candidates of one party by marking a cross opposite the political designation of such group of candidates.

3. In an election contest, error in refusing to count a ballot for one of the contestants is harmless, where another ballot for the other contestant was rejected for the same reason.

4. A ballot marked with a cross in the space containing printed instructions to voters, and having another mark on the line between the names of two opposing candidates, cannot be counted for either candidate.

5. Under Ballinger's Ann. Codes & St. § 1457. requiring voters at a municipal election in a city of the third class to be registered, as a condition precedent to the right to vote, a member of the fire department of such city, who was not registered, cannot vote, though he was prevented from registering because of his duties as a fire

man.

6. An indorsement on the back of a ballot that the voter had been prevented from registering for certain reasons, and that he lived in the city and was entitled to vote, signed by his name, is a distinguishing mark, within Ballinger's Ann. Codes & St. § 1380, providing that ballots having marks by which they may afterwards be distinguished shall be void.

7. A ballot marked immediately to the right of the name of a candidate, and having no mark in the space provided, is entitled to be counted. under 1 Hill's Ann. St. & Codes, § 391, providing that ballots sufficiently plain to gather therefrom the voter's intention shall be counted.

8. A ballot marked in the regular manner, but with a cross unusually heavy, is entitled to be counted; the provision making void ballots containing distinguishing marks applying only to marks placed thereon with the intention of distinguishing the ballot from others.

Appeal from superior court, King county: William Hickman Moore, Judge.

Quo warranto by the state, on the relation of Ivan L. Hyland, against John W. Peter, to determine the title to an office. There was a judgment for relator, and defendant appeals.

Affirmed.

Milo A. Root and P. V. Davis, for appellant. E. F. Blaine, Lee De Vries, and Wilmon Tucker, for respondent.

cember, 1898. The election board, upon the count of the ballots, found that the respondent had received a majority of all of the legal votes cast, and made their returns accordingly, whereupon a certificate of election was issued to him. The appellant instituted a contest before the city council of the city of Ballard, in the trial of which both parties participated, which resulted in the cancellation of the certificate issued to the respondent, and a certificate being issued to the appellant. The respondent thereupon brought a proceeding in quo warranto in the superior court of King county, which court found the respondent to be entitled to the office, and entered a judgment ousting the appellant therefrom. From that judgment this appeal is prosecuted.

Two questions are presented by the record: (1) Were the contest proceedings had before the city council a bar to any subsequent proceedings in the court? And (2) which candidate received the greatest number of legal votes?

1. The city of Ballard is a city of the third class. The statute applicable to cities of that class provides that "the city council shall judge of the qualifications of its members, and of all election returns, and determine contested elections of all the city officers." 1 Hill's Ann. St. & Codes, § 634. No method is provided by the statute for carrying on a contest under this provision, and it was found by the lower court, and conceded here, that the city council has not, by ordinance or otherwise, provided such a procedure. State ex rel. Blake v. Morris, 14 Wash. St. 262, 44 Pac. 266, was a proceeding in quo warranto to determine whether the relator, Blake, or the defendant, Morris, was entitled to the office of councilman of the city of Ballard. The conditions existing were exactly similar to these in the present case, and it was contended there, as here, that the findings of the city council were conclusive of the rights of the parties, and a bar to the subsequent proceedings in the courts. In that case we held that the statute quoted, in that it did not vest in the city council exclusive jurisdiction of contest proceedings, did not oust this court of its jurisdiction to try the question by a proceeding in the nature of quo warranto, and inasmuch as the city council had not passed any ordinance, or made any provision for carrying on or for the determination of such contest, their action could result in nothing more than establishing a prima facie right to the office, which would be subject to a subsequent contest in a proceeding of this nature. This case is decisive of the first question raised. The learned counsel for the appellant, however, questions the correctness of the rule therein announced, and earnestly insists that the case be overruled. Without stating or attempting to answer his objections, we are not satisfied that the case is so far wrong in principle as to warrant our overruling it. Stare decisis is

the policy of the courts. Upon this principle rests the authority of judicial decisions as precedents, and the doctrine ought not to be departed from, except for urgent reasons.

2. Of the ballots cast, the court counted, with the consent of the parties, 254 for appellant, and 261 for the respondent, leaving 15 in dispute, which are brought here in the record, and numbered from 1 to 15 inclusive. Ballots Nos. 1, 2, 3, 11, and 12 were not counted by the court for either party; ballots Nos. 4 and 7 were counted for respondent; ballots Nos. 5, 6, 8, 9, 10, 13, 14, and 15 were counted for the appellant; the final totals being, as found by the court, 263 for the respondent and 262 for the appellant. The ballots used were in the form prescribed by the Code (section 1364, Ballinger's Ann. Codes & St.), a copy being reproduced below (the marginal printed instructions omitted):

The appellant insists that of the rejected ballots 1, 2, 11, and 12 should be counted for the appellant. No. 1 was marked by a cross placed at the right of, and in the space containing, the words "Vote for One," printed at the top of the left-hand column; the stroke of the cross from left to right extending across the space immediately below, in which was printed the words "Citizens' Ticket." No. 2 was marked by a cross placed to the right of, and in the space containing, the words "Citizens' Ticket," printed at the top of the left-hand column. Ballot No. 11 has upon it three marks, the first in the space containing the printed instructions a little be

low where the line between the words "Citizens' Ticket" and "Independent Citizens' Ticket" would appear, if extended; the second in the proper column, but on the lines between the names of F. M. De Moss and Guy C. Wincapaw; and the third in the space with the printed instructions, entirely below any name upon the ticket. Ballot No. 12, while being correctly marked for the appellant, has written upon its back the words:

"E. E. Libby

"Not being able to register on account of his dutys as belonging to the Fire Department in Seattle was unable to register at any time, he duly swears that he lives in the Third ward and is entitled to his franchise hear. E. E. Libby "Protested

"H. Lewis."

It is clear to our minds that ballot No. 1 was properly rejected. Conceding, as the appellant contends, that the statute is complied with by marking the ballot opposite the political designation of the party for whom the elector intends to vote at any place where such party designation appears upon the ticket, it cannot be conceded that this ballot is so marked. The cross is clearly opposite the words "Vote for One," and simply because one stroke of the cross extends below that space, and into the space marked "Citizens' Ticket," is not sufficient evidence to warrant the court in saying that the voter intended to vote for the candidates of that party. No. 2 presents more difficulty, and, had it been counted, we would not have felt inclined to say that the counting was error. However, it can make no difference in this instance, because ballot No. 3 was marked exactly similar, and opposite the words "Independent Citizens' Ticket," in the space directly below the former. If one is counted, the other should be counted also, and the result would not be changed. Ballot No. 11 we think was rightly rejected. True, the statute declares only those ballots void from which it is impossible to determine the elector's choice, and requires a part to be counted when the ballot is sufficiently plain to gather therefrom a part of the voter's intention; yet this, we think, does not allow us to enter into the domain of speculation. The ballot should be marked so as to make it reasonably certain for whom the elector intended to vote. This ballot was not so marked. Ballot No. 12 was also rightly rejected. Before an elector is entitled to vote at a municipal election in a city of the third class, he must be registered. Ballinger's Ann. Codes & St. § 1457. It is not shown from the record when or by whom the writing was placed on the back of this ballot. If the voter who cast the ballot was not registered in the city of Ballard, as the writing recites, then he was not entitled to vote. If, on the other hand, as we must presume, the ballot was clean when it was handed the voter, and he placed the writing on it himself, then it was a distinguishing mark, and should be reject

ed, under section 1380, Ballinger's Ann. Codes & St. Ballot No. 4, instead of being marked in the spaces provided, was marked immediately to the right of the names of the candidates for whom the elector voted; otherwise, the ballot was regular. This ballot was properly counted, under the authority of State v. Fawcett, 17 Wash. St. 188, 49 Pac. 346. Ballot No. 7 was marked at the proper place, opposite the words "Independent Citizens' Ticket," but by a very heavy cross. The appellant insists that this is a distinguishing mark, and that the ballot should have been rejected for that reason. In the case last cited we held that it is not every mark by means of which a ballot might subsequently be identified which is a violation of the statute; that the mark prohibited by law is such a one— whether letters, figures, or characters-as shows an intention by the voter to distinguish his ballot from others of its class, or some willful or wanton disregard of the election laws. Under this rule, the ballot was properly counted. There is nothing upon it to indicate that the voter intended to distinguish it from other ballots, or to show any willful or wanton disregard of the election laws. However, in this instance, if it was improperly counted it can work no hardship. Ballots Nos. 8 and 9, counted for appellant, were similarly marked, and any ruling that would reject ballot No. 12 would reject these also. Finding no error in the record, the judgment of the lower court will be affirmed.

REVENUE STAMPS WHEN REQUIRED-
MORTGAGES-PRIORITY-RECORD.

1. A revenue stamp need not be affixed to the certificate of qualification of the sureties on an appeal bond, under War Revenue Law 1898, Schedule A, § 25, providing that revenue stamps need not be attached to bonds used in legal proceedings.

2. The provision of the federal war revenue law of 1898 requiring revenue stamps to be attached to certain instruments and documents does not apply to instruments used in legal proceedings in state courts; it being beyond the power of the federal government to impose any burden on the procedure of state courts.

3. Since a judgment lien on lands binds only the interest which the debtor actually has therein, an unrecorded mortgage takes precedence over a subsequent judgment; a judgment creditor not being a bona fide purchaser, within 1 Ballinger's Ann. Codes & St. § 4535, providing that mortgages shall be valid against bona fide purchasers from the time of their recording.

Appeal from superior court, Whatcom county; H. E. Hadley, Judge.

Action by Joseph B. Dawson, as receiver of the Columbia National Bank of New Whatcom, against Morris McCarty and others. From a judgment for defendant school dis

trict No. 1 of Whatcom county, plaintiff appeals. Reversed.

Stratton & Powell, for appellant. John R. Crites, for respondents.

REAVIS, J. Appellant brought suit to foreclose a mortgage on certain lands in Whatcom county. The mortgage was executed by the defendants Morris McCarty and wife to the Columbia National Bank of New Whatcom, of which the appellant is receiver. Respondent (defendant) school district No. 1 of Whatcom county has a judgment against defendants McCarty and wife, which is a lien upon the mortgaged premises. On the 16th of September, 1893, the bank was in the custody of a receiver appointed by the comptroller of the currency. At that time the defendant Morris McCarty was indebted to the bank in the sum of $25,490.08, exclusive of interest. The indebtedness was in the form of promissory notes and overdrafts made prior to June 23, 1893. The greater portion of the indebtedness was due September 18, 1893. On the 16th of September, 1893, the defendants McCarty and wife, for the purpose of securing the payment on October 1, 1894, of all said indebtedness, executed their mortgage upon the real estate in controversy. The mortgage specifically extended the time of payment of all the indebtedness to October 1, 1894. On the day of its execution the mortgage was delivered to the attorney of the receiver, to be held by him in escrow until it could be submitted to, and the terms approved by, the comptroller of the currency, and thereupon be delivered to the receiver of the bank. On the 27th of September, 1893, the comptroller of the currency duly authorized and approved the acceptance of the mortgage by the receiver, and the mortgage was thereafter delivered by the attorney to the receiver about the 5th of January, 1894. The mortgage was not filed for record until March 8, 1894. On the 2d of August, 1892, the defendant school district instituted an action in the superior court against defendant Morris McCarty, and on the 6th day of February, 1894, recovered judgment against him for the sum of $1,831.39, exclusive of interest. At the time of the entry of the judgment the school district had no notice of the existence of appellant's mortgage. By a mistake a portion of the property covered by the mortgage was incorrectly described as the west half of a certain quarter section, when it should have been described as the east half of the same quarter section. The superior court corrected this error and reformed the mortgage. That court also adjudged the mortgage inferior to the judgment lien of the school district. To this portion of the decree the plaintiff (appellant) excepted.

1. Respondent moves to dismiss the appeal on the ground that no proper notice of appeal was given or served, and that no valid bond has been given or filed in the cause, because no revenue stamp is attached to the certifi57 P.-52

cate of the qualifications of the sureties to the bond. The notice of appeal is clear, and conveyed fully to the adverse parties the fact of the appeal. And the objection to the bond is not well taken. The certificate of the qualifications of the sureties is part of the proper execution of the bond on appeal. The federal revenue law exempts bonds used in legal proceedings. Section 25, Schedule A, War Revenue Law 1898. And, again, it is elementary constitutional law that the federal government cannot impose any burden upon procedure in state courts. Collector v. Day, 11 Wall. 113; Cooley, Tax'n, pp. 82-86, and authorities cited.

2. The controversy upon the merits is, which is the prior lien, the mortgage or judgment? At comon law the uniform rule seems to have been that a prior unrecorded deed or mortgage conveyed good title as against a subsequent judgment. The rule is thus stated in 2 Freem. Judgm. § 366: "Wherever, under the law, a deed or mortgage is valid without being recorded, a subsequently attaching judgment lien against the grantor or mortgagor will not be of any benefit to the lienholder, as against the deed or mortgage. Under the principle already referred to, that the lien of a judgment attaches to the debtor's real rather than to his apparent interest, such lien is subordinate to any unrecorded conveyance or incumbrance executed prior to the rendition of the judgment, unless the statutes of the state give to judgment creditors the same protection against unrecorded instruments which they give to bona fide purchasers without notice." Mr. Pomeroy, in his work on Equity Jurisprudence (section 721), under the caption, "Prior Unrecorded Mortgage Superior to Subsequent Docketed Judgment," observes: "The most important question under this head which has come before the American courts relates to the respective claims arising from a prior specific and a subsequent general lien. The doctrine is certainly established as part of the equity jurisprudence, and rests upon the solid basis of principle, that prior equitable interests in rem, including equitable liens upon specific parcels of land, have priority of right over the general statutory lien of subsequent docketed judgments, although the latter is legal in its nature. Judgment creditors are not 'purchasers,' within the meaning of the recording acts, and, unless expressly put upon the same footing, they do not obtain the benefit which a subsequent purchaser does by a prior record. The equitable doctrine is that' a judgment, and the legal lien of its docket, binds only the actual interest of the judgment debtor, and is subject to all existing equities which are valid as against such debtor." Mr. Pomeroy also further says, in section 722, that: "A very different rule. prevails in many states, in which it is settled that the lien of a subsequent docketed judgment prevails over that of a prior unrecorded mortgage, or other prior equitable interest or