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Opinion of the Court-DUNBAR, J.

[26 Wash.

of probate courts extended to all matters necessarily involved in the disposition of the estates,-ample authority is given by statute to enforce any orders for the protection and best interests of the estate. It might as well be said that, if an additional estate were discovered, and the statute makes it the duty in such case for the guardian to report an additional inventory, no power would exist in the court to demand an additional bond of the guardian. And if the court has the power to order an additional bond, the power or authority is the authority of the law, and the obligation is not voluntary but is an obligation imposed by law. Therefore the foundation of the action is not a violation of the terms of a voluntary contract, but is the wrongs committed by the guardian in the violation of his official duties; and the bond is simply a collateral security for the enforcement of the trust. Indeed, if there was no legal compulsion, the bond which was actually given was given, not with regard to any contractual relation existing between the parties,—for there was no contractual relation existing between the sureties and the state of Washington, the pledgee of the bond, -but, as is recognized by its terms, it is given as security for the faithful performance of the official duties of the guiardian. The order of the court was that the bond should be conditioned to faithfully execute his trust as required by law, and the condition of the bond was to the same effect,—that he should make due and proper return and account of the funds realized from the sale of the estate. So that the holding in the Prescott Case that, where there is no obligation other than that arising from the bond, and where the obligation does not exist independently of the bond, the bond is but collateral security for its performance and the cause of action arises from the extrinsic obligation, is pertinent to the state of facts here;

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for certainly the obligation sued upon in this case does not exist independent of the bond, but is an obligation created solely by the bond, and one which relates exclusively to the official duties of the guardian in his relations to the law. We think the case cannot in any manner be distinguished from the Prescott Case, and the demurrer was, therefore, properly sustained.

With this view of the case it is not necessary to enter into a discussion of the other points involved. The judgment will be affirmed.


[No. 3948. Decided December 13, 1901.]





landlord may maintain an action of unlawful detainer against a tenant holding over, although the landlord may have leased the premises to other parties (Capital Brewing Co. v. Crosbie, 22 Wash. 269, distinguished).

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Under Bal. Code, § 4569, which provides that "when premises are rented for an indefinite time, with monthly reserved, such tenancy shall be construed to be a tenancy from month to month," an agreement by a landlord to an assignment of a parol lease for an indefinite period, under which rent was payable monthly, would not create other than a monthly tenancy, where the landlord merely agreed that the assignment was “all right as long as she pays her rent and keeps a straight house."




The misnomer of defendant is immaterial, where she answers defends without objection, and judgment is entered against her under her true name.

Opinion of the Court-REAVIS, C. J.

[26 Wash.

Appeal from Superior Court, King County.—Hon. WILLIAM R. BELL, Judge. Affirmed.

Thomas S. Ellis and Root, Palmer & Brown, for appellant.

Fred H. Peterson, for respondent.

The opinion of the court was delivered by

REAVIS, C. J.--Action for unlawful detainer. In June, 1900, respondent leased a lodging house in Seattle to one Malacord at a monthly rental of $75, payable monthly in advance. Malacord had purchased the furniture in the lodging house, and gotten a verbal assignment, which was consented to by respondent, of a similar lease from a former tenant. After an occupancy of some two weeks, Malacord sold the furniture in the lodging house to appellant for the sum of $1,850, and verbally assigned his tenancy to appellant. In November, 1900, respondent caused notice to be served upon appellant to surrender possession of the premises. On December 1, 1900, respondent instituted this action, alleging a tenancy by appellant from month to month, and the required notice to surrender the same, and the unlawful detention thereof, and demanded possession of the premises and damages, and that the damages found be doubled by the court. Appellant answered and, in substance, denied that the tenancy was from month to month, and averred that an agreement was made that appellant should have the lodging house as long as she paid the rent and kept a respectable house. The answer also set up affirmatively that the inducement for the appellant to purchase the furniture in the lodging house was that she might have the possession of the same thereafter so long as the rent was paid and the house was conducted respectably; that the

Dec. 1901.]

Opinion of the Court-REAVIS, C. J.

assignment by Malacord of the tenancy to appellant was made with the full knowledge and consent of the respondent, who was consulted relative thereto.

At the trial defendant offered a supplementary answer, setting up that before the commencement of the suit plaintiff had executed and delivered valid leases to the lodging house to other parties, which leases gave a right of possession to the premises for the period of two years from and after the 1st of December, 1900, and alleging that plaintiff had not now the right to the possession of the premises, and was not a party in interest in the matter of the possession of the premises. The court refused to allow the supplementary answer to be filed, on the ground that it did not state any defense; and the court also ruled out any testimony with reference to the leases made by plaintiff to other parties. It is urged by counsel for the appellant that plaintiff, having executed leases to other parties, which gave them a right of possession to the premises, cannot now maintain this action; and the case of Capital Brewing Co. v. Crosbie, 22 Wash. 269 (60 Pac. 652), is cited. In that case the court determined that the notice to quit and the action to obtain possession of the leased premises might be maintained by one holding a valid lease to the premises,—that is, one entitled to receive the rent for the same; but that case does not determine that the landlord may not maintain the action to recover possession of the premises. Referring to $ 5527, Bal. Code, it was observed that subdivision 3 of this same section provided, that notice for the payment of rent or the surrender of the detained premises may be given in behalf of the person entitled to the rent, upon the person owing the same. But we are inclined to view the interest of landlord and tenant in the possession as one, and the landlord must deliver the possession to his tenant. The

Opinion of the Court--REAVIS, C. J.

[26 Wash.

tenant may, under the ruling in Capital Brewing Co. v.
Crosbie, supra, institute his action to recover possession;
but the obligation of the landlord is to deliver the possession
to him. We think the landlord has sufficient interest in the
possession to maintain the action. In Commissioners v.
Barnard, 98 Cal. 199 (32 Pac. 982), it was determined,
in unlawful detainer against a tenant holding over, an
outstanding lease by the landlord to a third person, under
whom the tenant does not claim, is no defense. See Vin-
cent v. Defield, 98 Mich. 84 (56 N. W. 110+).
It is also urged that there was a misnomer in the

name of the appellant. The suit was against Jane Doe
Stanton, her real name is Delia J. Stanton, but she an-
swered and defended without objection, and there is no
merit in the contention that the judgment is not against
the right person.

But the main defense urged upon the merits is that the tenancy was for a longer period than one month, and that such extended tenancy was the material inducement for appellant's purchase of the furniture in the lodging house from Malacord. We have examined the evidence, and can find no statement from any of the witnesses that indicates any inducement made by the respondent; in fact, there is but little, if any, conflict between the witnesses testifying upon what was said between appellant and respondent relative to the tenancy. Malacord, a witness for appellant, said with reference to his tenancy:

"I went and paid the rent, and Mr. Schreiner told me that I could stay there as long as I wanted to,-as long as I was keeping a decent house and paying rent.'

Malacord stayed in possession eleven days, sold his furniture, and verbally assigned his tenaney to the appellant. Malacord and the appellant and Royal, a real estate agent,

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