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Ky. 467, and Blake v. Blake, 80 Ill. 523, in support of the right of appeal in the Sharon case, the courts of both of these states hold that an action will not lie on such an order: Cutler v. Cutler, 88 Ill. App. 464, and Geisler v. Geisler, 30 Ky. Law. Rep. 430, 98 S. W. 1023.

Finding no error in the record, the judgment is affirmed.

Hadley, C. J., Fullerton, Mount, Crow and Dunbar, JJ., concur.

A Decree for the Payment of Future Alimony or Mainienance which is inconclusive in its character by reason of the reservation to the court which made it of the unrestricted right to change or annul it at discretion, and which is not enforceable in the state of its origin otherwise than by special processes exclusive of execution, and of judgment thereon and execution, is not one creating such a debt of record as will entitle it to or justify extraterritorial enforcement: Sistare v. Sistare, 80 Conn. 1, ante, p. 102, and see authorities cited in the cross-reference note thereto.

NICHOLS v. DOAK.

[48 Wash. 457, 93 Pac. 919.] BANKRUPTCY-Conclusiveness of Recital of Fraud in Judg. ment.--Recitals in a judgment that recovery against the defendant was because of fraud in obtaining goods and failing to return them is conclusive on that point in subsequent proceedings by him to restrain an execution sale, on the ground that the judgment has been satisfied by his discharge in bankruptcy. (p. 944.)

BANKRUPTCY-Judgment of Fraud in Obtaining Goods.Where a judgment against a bankrupt recites that recovery was because of his fraud in obtaining goods, and orders a recovery of dam. ages on account of the fraud, it will be presumed on collateral attack that the court found that a return of the property was impossible or impracticable, and, the judgment will not be held defective in form because not in the alternative. (p. 944.)

BANKRUPTCY.-A Judgment for Damages Because of Fraud in obtaining goods is not affected by bankruptcy proceedings, and becomes a lien on the property thereafter acquired by the bankrupt. (p. 945.)

James Dawson and R. E. Porterfield, for the appellant. Samuel R. Stern, for the respondents.

458 HADLEY C. J. This is an action to enjoin the sheriff of Spokane county from selling certain real estate under execution. In two previous causes in the superior court of Spokane county, in each of which the plaintiff in this action was the defendant, judgment were rendered against him as such defendant. Thereafter he was adjudged a bankrupt, and was discharged as such. Following the date of his said discharge he inherited from his mother the real estate above mentioned. The judgments have never been paid. The holders of them in no way participated in the bankruptcy proceedings, and unless the discharge in bankruptcy had the legal effect to satisfy the judgments, they are upon their face liens upon the real estate. Proceeding upon the theory that the judgments are liens, the holders of them caused exe| cutions to issue, and directed the sheriff to levy upon said land and sell it to satisfy the judgments. This the sheriff was about to do when the judgment debtor brought actions to enjoin the sale, and incidentally to have the judgments canceled. The two actions were heard together, with the same testimony applying to each, and the court denied the relief asked in each case. Judgment was entered dismissing the actions, and the plaintiff has appealed from both judgments.

The two cases will be treated on appeal as a consolidated cause, as they were treated by the trial court. Appellant contends that his discharge in bankruptcy had the effect to satisfy the judgments and that they do not now constitute enforceable liens. Respondents, upon the other hand, maintain that the judgments were taken against appellant because of his fraud in obtaining certain property, and that by the terms 459 of section 17 of the bankruptcy act, appellant's discharge in bankruptcy did not release him from judgments or liabilities of that character. Appellant assigns as error the refusal of the court to permit him, at the trial of this cause, to introduce testimony to show that he did not fraudulently obtain and retain the goods for which said former suits were brought. The judgments themselves were in evidence, and they recited that the recovery against appellant was because of fraud in obtaining goods and the failure to return them, as alleged in the complaint. We think these recitals were conclusive against appellant. The judgment had stood for years unattacked by appeal or otherwise. To have admitted the testimony offered would have allowed the contradiction of the terms of the judgments, and would have permitted in this action a trial of the former actions upon their merits. Such would have amounted to a collateral attack on the judgments. The relief sought was the restraint of execution sales, and in order to effect that end, it was sought by the testimony to impeach the judgments which supported the executions in

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a particular wherein they were fair upon their face. It was not error to reject the testimony.

It is further contended, however, that the judgments were void for lack of jurisdiction, it being urged that there was no service of process upon appellant and no authorized appearance in his behalf. The court found in this action that service was made upon this appellant as a defendant in the former actions; that the complaint and summons and the affidavit and bond for the return of the property were served upon him, and that he thereafter duly appeared in the actions by Henley, Kellam & Lindsley, his attorneys; that said firm of attorneys, in pursuance of being retained by appellant to defend in said causes, filed motions to make the complaints more definite and certain, which motions were denied by the court; that they also made motion to strike certain interrogatories which had been filed, and thereafter admitted service 460 of notes of issue of said motions; that motions for default on account of failure to further appear and plead in the actions were made, and service thereof admitted by said attorneys; that said attorneys appeared no further in the actions because of a direction to that effect given to them by appellant. We think the above findings are all justified by the evidence. Particularly do we think the finding with reference to the authoritative appearance of appellant through counsel is abundantly supported by the testimony. The court, therefore, had jurisdiction of the person of appellant in the actions, and inasmuch as it had undoubted jurisdiction of the subject matter, it was authorized to proceed, and the judgments are not void.

Objection is made to the sufficiency of the form of the judgments entered in the former actions. The judgments definitely recited that it appeared from proof adduced to the satisfaction of the court that the defendant, this appellant, was guilty of false and fraudulent representations in the procurement of the goods described, and that the title never passed to him as against the plaintiffs in this action. It was ordered that the plaintiff should recover specified amounts of damages on account of the fraud and the failure to return the property. The judgments are not in the best form with respect to the alternative feature of requiring the return of the property or the recovery of damages. But in this hearing they are entitled to full credit, and it should be presumed that the court must have found the return of the property impossible or impracticable and therefore entered its judg. ments for damages.

It follows from what has been said that the judgments are liens upon appellant's real estate, unless they have been discharged from the bankruptcy proceedings. Section 17 of the bankruptcy act provides, among other things, as follows: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as . . . . are judgments

.... in actions for frauds, or obtaining property by false 461 pretenses or false representations": 30 U. S. Stats. at Large, p. 550, sec. 17.

It is manifest that these judgments come within the above exception, and that they were not affected by the bankruptcy proceedings. They were in full force when appellant acquired the land in question, and they becanie liens thereon. The court did not err in refusing to enjoin the execution sales, and the judgment is affirmed.

Fullerton, Mount, Crow, Dunbar, and Root, JJ., concur.

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As to What Judgments are Immune from Discharge in Bankruptcy because founded on torts, see Bond v. Milliken, 134 Iowa, 447, 120 Am. St. Rep. 440; Colwell v. Tinker, 169 N. Y. 531, 98 Am. St. Rep. 587; McDonald v. Brown, 23 R. I. 546, 91 Am. St. Rep. 659; Berry v. Jack. son, 115 Ga. 196, 90 Am. St. Rep. 102.

THOMAS V. SEATTLE BREWING AND MALTING

COMPANY.

(48 Wash. 560, 94 Pac. 116.] CHATTEL MORTGAGE—Discharge by Tender.—The tender of the amount due under a chattel mortgage prior to foreclosure discharges the lien. (p. 946.)

CHATTEL MORTGAGE-Tender of Amount Due.-Where goods are sold under a chattel mortgage after tender of the amount due, they may be recovered in replevin, although the tender was not kept good nor the money brought into court. (p. 947.)

CHATTEL MORTGAGE.-A Tender of the Amount Due under a chattel mortgage, in order to discharge the lien, must be fairly made and intentionally refused. (p. 947.)

CHATTEL MORTGAGE-A Tender of the Amount Due on a Chattel Mortgage may be made by a person to whom the mortgagor has sold the property. (p. 947.)

Moore & Park, for the appellant.

Wilson R. Gay, for the respondent.

562 RUDKIN, J. On the fifth day of March, 1904, W. M. Hart mortgaged certain personal property to the Seattle

Am. St. Rep., Vol. 125—60

Brewing and Malting Company, to secure the payment of the sum of one thousand dollars, payable in installments of fifty dollars per month. Hart made default in his payments, and the mortgagee proceeded to foreclose its mortgage by notice and sale under Ballinger's Code, section 5870 et seq. (P. C., sec. 6536). The date of sale was fixed for January 8, 1907. On the day preceding, Hart transferred the mortgaged property, or at least the greater portion of it, to the plaintiff in this action. On the eighth day of January, and prior to the sale, the full amount of the mortgage debt, with interest and accrued costs, was tendered to the sheriff and mortgagee, but the tender was refused and the property was thereafter sold and bid in by the defendant brewing company. This action was thereupon brought in claim and delivery, against the sheriff and the purchaser, for a return of the property and damages, or for judgment for the value in case a return could not be had. From a judgment in favor of the plaintiff, the defendants have appealed, and the following questions are presented for the consideration of this court: 1. Does a tender of the amount due under a chattel mortgage before sale discharge the mortgage lien? 2. If so, in an action of claim and delivery to recover the mortgaged property, must the tender be kept good? And 3. Was a sufficient tender shown in this case?

At common law a tender of the mortgage debt on the law-day satisfies the condition of the mortgage, and discharges 563 the property from the encumbrance as effectually as payment; but the debt remains, and its payment may be enforced by an action at law against the mortgagor. And in pleading a tender on the law-day in discharge of the condition of the mortgage, the mortgagor is not required to allege continued readiness to pay, nor need he bring the money into court. The tender, when made, discharges the encumbrance, not conditionally, but absolutely and forever": Mitchell v. Roberts, 5 McCrary, 425, 17 Fed. 776. See, also, Jones on Mortgages, 6th ed., sec. 891; Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Moore v. Norman, 43 Minn, 428, 19 Am. St. Rep. 247, 45 N. W. 857, 9 L. R. A. 55.

This was the established rule at common law when tender was made on the law-day, and also in case of pledges of personal property where title did not pass until after sale. In the states where both real and chattel mortgages have been converted into mere liens, it has very generally been held that a tender at any time before foreclosure and sale has the same effect as a tender on law-day at common law, and there

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