tion until they have applied to the officers and directors and been denied the protection sought. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 791-796; Dec. Dig. § 206.*]

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

nunc pro tunc order entered on May 18, 1906. On May 12, 1906, the interveners asked permission to amend their complaint in intervention by adding thereto a paragraph, which, in substance, alleged that the receiver had conspired with the plaintiff to obtain the entry of the judgment and the sale of defendant's property, and to aid the plaintiff in "freezing out" the interveners as minority stockholders. This application being denied, the interveners stood upon their original pleading. Whereupon judgment was entered See, also, 46 Wash. 90, 89 Pac. 399, 96 Pac. dismissing them from the action. From 837.

Action by the Seattle & Northern Railway Company against the Union Wharf Company, in which Anne C. Bowman and others intervened. From a judgment dismissing the intervention, interveners appeal. Affirmed.

Frank Quinby, for appellants. L. C. Gilman and B. O. Graham, for respondent.

this judgment they have appealed.

trial, which necessarily precedes the entry of judgment. Wiseman V. Eastman, 21 Wash. 163, 57 Pac. 398; Hight v. Batley, 32 Wash. 165, 72 Pac. 1034, 98 Am. St. Rep. 851; Meadows v. Goff, 90 Ky. 540, 14 S. W. 535.

Appellants contend: (1) That their complaint in intervention was filed in time; (2) that in any event it should be considered as CROW, J. This action was commenced by a motion or application to vacate the judgSeattle & Northern Railway Company, a cor- ment; and (3) that it states facts sufficient poration, against Union Wharf Company, a to entitle them to the relief demanded. The corporation, to recover $3,188.46 on an open statute (section 4846, Ballinger's Ann. Codes account. Upon plaintiff's motion and notice & St. [section 272, Pierce's Code]) provides a receiver was appointed, who took posses- that: "Any person may, before the trial, insion of defendant's property and filed an in- tervene in an action or proceeding, who has ventory and report. On September 22, 1904, an interest in the matter in litigation in the a default judgment was entered in plaintiff's success of either party, or an interest against favor. On December 17, 1904, Anne C. Bow- both. Appellants' complaint in inman, sole legatee of Amos Bowman, deceas- tervention was not filed until after the entry ed, Melville Curtis, John Semar, B. F. Mc- of the judgment, which is regular upon its Cracken, T. B. Childs, and Flora M. Reilly, face, and affirmatively recites due and perhaving first obtained leave, filed their com-sonal service upon the defendant. A complaint in intervention, in which they, in sub-plaint in intervention is filed too late, if stance, alleged: That the capital stock of filed after judgment. It must be filed before the defendant corporation consisted of 240 shares of the par value of $50 each; that the interveners owned 35 shares; that since 1895 a majority of 144 shares had been owned by the plaintiff, but was carried in the names of certain private individuals; that plaintiff had removed the books and records Appellants nevertheless contend that the of the defendant corporation from the state complaint in intervention was filed in time, of Washington; that at no time since 1895 because they allege that the person upon had there been any annual meeting of the whom service was made was not the legally stockholders or election of officers; that the elected vice president of the defendant, that defendant had transacted no business which the judgment entered upon such service was would cause it to incur an indebtedness; that void, and that no trial has yet occurred in it was not indebted to plaintiff in any sum; the court below. The allegations mentioned that in this action plaintiff had caused are not sufficient to negative the showing of service to be made on one S. H. Piles, who the record that Mr. Piles, upon whom service had accepted the same as defendant's vice was made, who assumed to act as vice presipresident; that at the time of such pretend- dent in admitting service, and who was preed service he was not a stockholder, officer, sumably in possession of the office, was at or managing agent of the defendant corpora- least a de facto officer. No allegation is tion; and that the trial court never had made stating who was vice president, or who jurisdiction to enter the default judgment. held any other office in the defendant corThe interveners prayed that the judgment be poration, or who was the person upon whom vacated, that plaintiff be ordered to return legal service could be made. In Davis v. defendant's books and records to this state, Edwards, 41 Wash. 480, 84 Pac. 22, it was that a full accounting be had, and that judg- held that the title to an office in a corporament be entered against the plaintiff for tion cannot be tried in a proceeding of this any sum that might be found to be due from character. As the judgment is regular upon it to the defendant. To this complaint in its face and recites due and personal service, intervention the plaintiff interposed a gen- it would seem that the validity of such serveral demurrer, which was heard on March ice and the question whether the person up20, 1905, then taken under advisement, and on whom it had been made was an authorizsustained on April 17, 1905, as shown by aed officer of the defendant could only be

and conduct of the litigation. They should not be permitted to resort to the courts in their capacity as stockholders, unless the remedies thus sought are denied them by the officers and directors of the corporation itself.

The respondent's demurrer was properly sustained, and the judgment is affirmed.

RUDKIN, C. J., and MOUNT, PARKER, GOSE, DUNBAR, MORRIS, and FULLERTON, JJ., concur.

(53 Wash. 379)

CUSHING v. HEUSTON et al.

(Supreme Court of. Washington. June 4, 1909.) 1. TRUSTS (§ 99*) - CONSTRUCTIVE TRUSTS BREACH OF ORAL AGREEMENT.

questioned in a proceeding directly attacking | law to permit stockholders as such to usurp the judgment, properly instituted by motion their functions. When stockholders believe or petition under the provisions of section the corporation is about to incur loss or be 5153 et seq., Ballinger's Ann. Codes & St. injured in threatened or pending litigation, (Pierce's Code, § 1033). Appellants, however, they should first consult with the directors, contend that the complaint in intervention seek protection through them, and, if posshould be considered as such a motion or apsible, reach an understanding as to the merits plication to vacate the judgment and as a direct attack thereon. The record indicates that throughout all the proceedings the appellants themselves regarded their pleading only as a complaint in intervention. Its allegations, and the manner in which it was presented, negative the idea that it was otherwise regarded by themselves, the respondent, or the trial court, or that it was intended as a direct attack upon the judgment under the statute above mentioned. Appellants' proposed amendment, which was denied, was not of such a character as to invoke the court's consideration of the pleading on the theory that it was a motion or petition under section 5155 or section 5156, Ballinger's Ann. Codes & St. (Pierce's Code, §§ 1035, 1036); but the amendment was requested with the manifest intention of perfecting the pleading as a complaint in intervention. Their present contention that the pleading was a direct attack upon the judgment, under the statute, seems to have been made for the first time in this court, to give it a standing to which it is not entitled as a complaint in intervention. Their cause must be considered here, upon the same theory on which it was presented to and considered by the trial court. Normile v. Thompson, 37 Wash. 465, 79 Pac. 1095; Sanders v. Stimson Mill Company, 34 Wash. 357, 75 Pac. 974. Appellants' right to intervene and the procedure adopted by them was challenged by the respondent long before the time expired within which they could have filed a motion under section 5155, Ballinger's Ann. Codes & St., or a petition under section 5156, Ballinger's Ann. Codes & St., to vacate the judgment. Notwithstanding such prompt challenge, they continued to stand on their pleading on the theory that they were interveners, and that it was a complaint in intervention.

In any event, appellants' pleading does not state facts sufficient to give them any standing in court or to entitle them to relief. They are minority stockholders, attempting as such to litigate issues arising between the respondent and the defendant corporation. Their pleading contains no allegation that they have exhausted such remedies as may have been open to them within the corporation itself, or available by an application to its officers or trustees, nor do they allege facts sufficient to excuse the necessity of such action. Stockholders as such are not entitled to the relief demanded by appellants. The management of corporate affairs is properly vested in a board of directors, and it is against the policy of the

|

Even if plaintiff agreed orally to purchase certain lands for interveners and himself. no trust arose in favor of interveners on plaintiff's purchase of the land in his own name, where the agreement was without consideration, the interveners furnishing no money for the purchase, and they could have purchased for themselves.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 150; Dec. Dig. § 99.*]

2. TRUSTS ($ 99*)-TRUSTEE EX MALEFICIO. Where it was immaterial to the vendor of land to whom the land was to be conveyed, and he was not influenced in this respect by any misrepresentations, statements by the purchaser that he wished to buy for himself and some of his neighbors, without naming any person, do not render the purchaser a trustee ex maleficio nor prevent his taking the entire title to the exclusion of the other persons for whom he was acting in connection with himself.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 150; Dec. Dig. § 99.*] 3. APPEAL AND ERROR (§ 1009*) — Nature of

ACTION-TRIAL DE Novo.

An action for specific performance of a contract to convey land being equitable in nature. and under Ballinger's Ann. Codes & St. § 6520 (Pierce's Code, § 1068), triable de novo on appeal on all the evidence taken in the trial court, the reviewing court is not bound by the findings of fact.

[Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 3970-3978; Dec. Dig. 8 1009.*]

4. TRUSTS (§ 110*)-IMPLIED TRUSTS-SUFFICIENCY OF EVIDENCE.

To establish a claim that plaintiff purchased certain land for himself and interveners, and that he holds an interest in the land in trust for

them, must be substantiated by more than a mere preponderance of evidence.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 160; Dec. Dig. § 110.*]

5. TRUSTS (§ 110*)-IMPLIED TRUSTS-SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to establish a trust in land in favor of interveners.

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 160; Dec. Dig. § 110.*]

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

6. COSTS (§ 98*) — PERSONS LIABLE INTER- | tide land purchase, as it is claimed he agreed to do under the alleged agency contract, but some days thereafter, on March 4, 1905, he went to the owners of the tide land, Heuston and wife, at Tacoma, and purchased directly from them, in his own name, all of the tide land in front of lots 18 to 25 inclusive, paying $50 from his own funds upon

Appeal from Superior Court, King County; the purchase price, which purchase was then A. W. Frater, Judge.

evidenced by the following writing: "March Action for specific performance by M. H. 4, 1905. Received of M. H. Cushing $50, Cushing against May N. Heuston, individual part payment for tide lands in front of lots ly and as executrix of the will of B. F. 18 to 25, inclusive, block 2, Chilberg's adHeuston, deceased, defendant, and Jessie M. dition to West Seattle, King county, WashElliott and others, interveners. From a judgington, this day sold him for $218.75; ment for interveners, plaintiff appeals. Re- balance $168.75 payable on or before one

front of their lots 18 and 19; to the inter- it assuredly. We fully understood it that vener Jessie M. Elliott, the tide land in front he was to purchase these tide lands for us jointly. Q. Did you know at that time what you were to purchase them for? A. Yes, sir; for a dollar and a quarter a front foot. Q. Who offered them for a dollar and a quarter? A. Mr. McGuire offered us. He told us at the time that they could be bought of Mr. Heuston in Tacoma. * * * Q. Why didn't you buy your tide lands of Mr. McGuire? A. Well, simply because Mr. Cushing offered to attend to this for us. We were very glad to have some one to attend to it for us, and we all agreed by answering we would be very glad to have him attend to it."

A. No, sir. Q. Was there anything said about the tide lands, the purchase of the tide lands? A. Nothing whatever that I remember. * * * Q. By the way, are you acquainted with Mr. McGuire? A. Yes, sir. Q. Well, did you ever speak to him in the way that you were anxious to secure the tide lands in front of your lots? A. No, sir; we were not wanting the tide lands; had no idea of getting the tide lands." Mrs. Vine Burrington, one of Mrs. Elliott's original associates, touching this same matter, testified as follows: "Q. Was there anything said at all about securing the tide lands? A. Not that I know of; not to my knowledge. Q. Did you ever attempt to secure the tide lands there? A. No, sir; I never did. Q. Did you want the tide lands? A. No; I didn't want them. Q. Did you ever offer any price for the tide lands? A. I never did."

the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated. There must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. Equity does not pretend to enforce verbal promises in the face of the statute." Along the same lines, in 1 Perry on Trusts (5th Ed.) § 134, it is stated: "A trust results from the acts, and not from the agreements, of the parties, or rather from the acts accompanied by the agreements; but no trust can be set up by mere parol agreements, or, as has been said, no trust results merely from the breach of a parol contract. As if one agrees to purchase land and give another an interest in it, and he purchases and pays his own money, and takes the title in his own name, no trust can result." 1 Beach on Trusts & Trustees, § 219, is to the same effect.

Touching the matter of the inducements, if any, other than the money consideration, which led the defendants Heuston and wife to sell the tide lands to Cushing, we have the testimony of Mrs. Heuston as to the conversation which took place between Cushing With these general principles before us, we and her husband at the time, she being pres- are to inquire what legal or equitable duty ent, as follows: "Mr. Cushing said that he of Cushing, owing to the interveners or deand some neighbors had bought some upland fendants, was violated by him. We have seen adjoining the tide land, which they under- he was an entire stranger to the parties. He stood Mr. Heuston owned, and he had come was not bound by any writing. No duty was over to see what he could do to purchase imposed upon him by having any funds or said tide land for himself and his neighbors." | property in his hands belonging to the interThis conversation evidently occurred on veners, nor did he agree to advance or loan money for the tide land purchase, nor was it contemplated that he was to have any com

March 4, 1905, the date of the purchase. We find no competent evidence in the record showing any other or different representa-pensation from the interveners for his servtions made by Cushing to the Heustons, nor is there any competent evidence in the record indicating that such representation, as to whom Cushing was purchasing for, induced the Heustons to make the sale.

ices. The testimony of the intervener Jessie M. Elliott leaves no doubt as to these matters. In the light of these facts, it is difficult indeed to conceive of any duty resting upon him which can be recognized in law or Passing for the present the matter of con- equity as being violated by the course he flict of testimony, and viewing the relation took. If it be suggested that, by Cushing's ship of the parties in the most favorable promise as interpreted by Mrs. Elliott, the light for the interveners as testified to by interveners were induced to let the purchase Mrs. Elliott, it at once becomes plain that, of the tide land rest with him, when they whatever trust arose in favor of the inter- otherwise might have purchased it directly veners upon the purchase of the tide lands themselves, the answer is found in the fact by Cushing, it falls within that class of con- (taking Mrs. Elliott's version): That she and structive trusts designated "trusts ex male- her associates furnished no money or means ficio," for in this case the alleged trust was for consummating the purchase; that Menot evidenced by any writing, nor was any Guire then present was agent for the sale money or property of the persons claiming to of the tide lands, as well as the lots, and be beneficiaries used by Cushing in the pur- she and her associates could have dealt dichase of the tide lands, nor did he agree to rectly with him had they so desired; that he loan or advance funds therefor. The trust told them who the owner of the tide land must be constructed, if at all, from the re- was; and that whatever service Cushing lationship of the parties and the manner of agreed to render was to be voluntary and acquiring the tide land from the Heustons, without consideration. We do not think this and, unless we can find some element of was such an agreement, though it be all that fraud or bad faith on the part of Cushing, Mrs. Elliott claims, as in law or equity obliby which he violated some duty recognized gated Cushing to do anything. In discussing in law or equity, as owing to Mrs. Elliott a case where the facts were such that it and her associates and to the Heustons, no might be argued the persons claiming to be trust was created. In 3 Pomeroy's Eq. Jur. beneficiaries were prevented from purchas