defeasible fee, which does not become absolute by being sold to a party ignorant of the defect."

In Marks v. Cowles, 61 Ala. 299, every phase of the question now under consideration was discussed with great learning and ability, both upon principle and authority, and the learned court. came to the conclusion that an assignee or vendee of one who purchased under an erroneous decree in his own favor stands in the position of his vendor, and that a subsequent reversal defeats his title, and that such assignee or vendee is not entitled to protection as a bona fide purchaser, without notice and for value.

In Bryant v. Fairfield, 51 Me. 149, it was held that, where land was set off to a creditor in satisfaction of a judgment and the judgment was afterward reversed on a writ of error, the debtor was entitled to the land again, and he might recover it of one who purchased it of the creditor before the reversal of the judgment without notice of any defects therein. In that case the court, after having described the modes of satisfying judgments in England under writs of fieri facias, of elegit, and of capias ad satisfaciendum, said: 448 "In this state the creditor sues out a writ of execution that embraces them all, and he then has his election in regard to its enforcement, by a sale of chattels, an extent upon lands, or arrest of the body. If he elects to have it extended upon the lands of the debtor, his title will depend upon the validity of his judgment, and must fail upon its reversal. Anyone who purchases the land of him must run this risk; and there is no greater hardship in this than in any other case of failure of title. He may take care to be secured by the covenants in his deed; and, if he distrusts the ability of the grantor, he need not purchase": See, also, Adams v. Odom, 74 Tex. 206; 15 Am. St. Rep. 827; Dunnington v. Elston, 101 Ind. 373; Griswold v. Ward, 128 Ind. 389; Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459; Delano v. Wilde, 11 Gray, 17; 71 Am. Dec. 687; Cummings v. Noyes, 10 Mass. 434; Jackson v. Cadwell, 1 Cow. 622.

It is claimed, however, by the learned counsel for the respondents that the case of Bryant v. Fairfield, 51 Me. 149, and the Massachusetts cases above cited, are not authority in this case because of the difference between the extent of a debtor's land by elegit and a sale upon execution. It is conceded that when lands were extended under a writ of elegit according to the English practice, and the somewhat analogous practice in the New England states, they were restored to the judgment debtor upon a reversal of the judgment. The reason given for the

rule is, that the title of the purchaser depended upon the existence of the judgment, and was necessarily annulled by its reversal; and, for the same reason, it would seem that lands taken from the defendant by the plaintiff by virtue of an erroneous judgment ought to be restored to him upon the reversal of the judgment. A valid judgment is an essential requisite to a valid sale, and without such judgment no sale can be supported. Upon this question the supreme court of Wisconsin in the case of Corwith v. State Bank, 15 Wis. 289, said: 44 "The right of the debtor whose lands are purchased by the creditor on execution under our statute cannot be distinguished on principle from those of the debtor whose property is under extent according to the English practice. In Goodyer v. Junce, Yelv. 179, the distinction between a sale by the sheriff to the party himself and such sale to a stranger, is expressly noted, and it is said the latter only will be protected. If the former be the purchaser, restitution will be awarded."

And in Marks v. Cowles, 61 Ala. 299, the same view is expressed in the following language: "It seems to us rather a shadowy, than a substantial difference, so far as this question is concerned, between the extent of a debtor's lands by a writ of elegit and a sale upon writs of fieri facias, now that lands are subjected to sale for the satisfaction of judgments, and such writs are framed so as to confer authority to levy and sell alike goods and chattels, and lands and tenements. When lands were extended by elegit, the judgment was of the essence of the titlean indispensable muniment, and so it remains to-day when there is a sale and conveyance upon a writ of fieri facias. It must be shown to support an action by the purchaser for the recovery of the lands, or to maintain his possession, if that is assailed by the party to whose title he claims by operation of the judgment to have succeeded."

Conceding, as claimed, that Tindall had no actual notice of the pendency of the appeal when he purchased the lands from Callahan, we are of the opinion that it cannot be said, in view of the better authorities, that he was a bona fide purchaser in contemplation of law. As has already been stated, neither he nor his grantor has ever received a deed of the land, and no one can be deemed a bona fide purchaser who does not purchase the legal title: See Rorer on Judicial Sales, 2d ed., sec. 576; Wilson v. Morrell, 5 Wash. 654; Taylor v. Weston, 77 Cal. 534; Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459.

445 A certificate of sale executed by a sheriff does not pass ti

tle. At most it is only evidence of an inchoate estate which may or may not ripen into an absolute title. While the purchaser at a judicial sale may be entitled to the immediate possession and the rents and profits of the premises, he cannot be said to hold the title until he receives a deed in pursuance of the sale: Hays v. Merchants' Nat. Bank, 14 Wash. 193; Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459; Roberts v. Clelland, 82 Ill. 541.

In the case last cited, the court, in construing the statute relating to the assignment of certificates of sale made by a sheriff, observed that: "The construction we have indicated the statute should receive stands to reason. An innocent purchaser is one that has the legal title to property, and has paid therefor a valuable consideration, without notice of defects or vices in the title. That cannot be predicated of a mere assignee of a certificate of sale, issued to a purchaser under judicial sentence, who is chargeable with notice of all irregularities that may invalidate such sale. As was said in Bowman v. People, 82 Ill. 246, 25 Am. Rep. 316, such purchaser does not take the land itself by his bid, but only an incipient interest, that may or may not ripen into an absolute estate. It is simply stating a truism, to say a party cannot assign that which he hath not. Such purchaser has not the legal title to the property bought, and of course cannot assign it."

Neither, in our judgment, for the same reason, can he sell it to a third person so that the latter may hold it as a bona fide purchaser. To hold that the respondent Tindall in this case has a good title to the premises in dispute would be to hold that his grantor was able to convert a defeasible into an indefeasible estate by the mere instrumentality of a conveyance. If the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer: 4 Kent's Commentaries, 10.

446 The respondent Tindall cannot be deemed a bona fide purchaser for value without notice for the further reason that he failed to take notice as required by law of the source and quality of the title of his vendor. In Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459, it was said that: "The grantee is charged with notice of the deeds and documents from which he deraigns his title. When he purchases from the plaintiffs in the execution, he is presumed to know the course of the proceedings and state of the record from which the title of his grantor proceeded, and he is presumed to know, too, that the right of the defendant is to take an appeal within the statutory period, and also the consequences of the successful prosecution of this right; and he

must be supposed to purchase with reference to these things." And the supreme court of Indiana observed in Dunnington v. Elston, 101 Ind. 373, that: "Where the only title of a purchaser rests upon the judgment or decree of a court of record, inasmuch as he is bound to take notice of the source of his title, he is charged with notice of all the incidents to which the judgment is subject. He is conclusively presumed to know that the judgment may be appealed from within a limited time, or that by the payment of costs the judgment may be vacated within a time fixed by law." And the supreme court of Alabama, in Marks v. Cowles, 61 Ala. 299, very forcibly and clearly announced the same doctrine.

If the respondent who claims to be the owner of this land had examined the records in the office of the county auditor he would have found a deed of the land to the appellant upon the records; and if he had examined the records in the superior court they would have disclosed the fact to him that neither English nor Callahan had any title to the premises, and that an appeal was then pending which might result in overthrowing the judgment which was the foundation of all rights which his vendor claimed in the 447 premises. And that being so, he must abide the consequences of his own negligence. If he is the loser in the transaction between himself and Callahan, he must look to the latter for redress.

For the foregoing reasons, the judgment appealed from will be reversed and the cause remanded, with directions to enter judgment in favor of the appellant.

Gordon, Dunbar, and Reavis, JJ., concur.

JUDICIAL SALES-PLAINTIFF AS PURCHASER.-A judgment creditor buying at his own sale is chargeable with notice of all irregularities, for he is not a bona fide purchaser: Boos v. Morgan, 130 Ind. 305; 30 Am. St. Rep. 237, and note; Williams v. Hollingsworth, 1 Strob. Eq. 103; 47 Am. Dec. 527. Although the contrary has been held in California: Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543. Such a purchaser is presumed to have notice of all irregularities in the sale: Caldwell v. Waters, 18 Pa. St. 79; 55 Am. Dec. 592. And where such a sale was vacated after the purchaser had conveyed the property to third persons, such reversal was held to put an end to the title so acquired: Stroud v. Casey, 25 Tex. 740; 78 Am. Dec. 556. But in that case the subsequent purchasers were the attorneys for the judgment creditor: See McAusland v. Pundt, 1 Neb. 211; 93 Am. Dec. 358, which contradicts the principal case directly.

CARSTENS v. LEIDIGH AND HAVENS LUMBER Co.

[18 WASHINGTON, 450.]

APPELLATE PRACTICE-APPEALABLE ORDER.-An order quashing a summons in effect determines the action or proceeding, and is therefore appealable.

APPELLATE PRACTICE-EXCEPTIONS TO FINDINGS.— if no exceptions are taken to findings of fact and conclusions of law made by the trial court in a case tried exclusively upon affidavits, such affidavits cannot be considered upon appeal, the only question to be determined being whether the findings of fact warrant the conclusions of law.

CORPORATIONS, FOREIGN SERVICE OF PROCESS UPON.-Service of process upon an officer of a foreign corporation while he is casually or temporarily found within the jurisdiction does not give jurisdiction to render judgment in personam against the corporation which has no place of business or agent within the state, and has never done any business therein.

J. Kiefer, for the appellant.

Donworth & Howe, for the respondent.

451 DUNBAR, J. This action was brought by the plaintiff, a corporation under the laws of the state of Washington, to recover a balance of nine hundred and ten dollars and forty-three cents for goods sold and delivered to the defendant, a corporation organized under the state of Missouri. Service was had upon the president of the defendant corporation in King county. The defendant appeared specially, and moved the court to set aside and quash the service of summons, and, in support of its motion, filed the affidavit of John H. Leidigh, the president of the defendant corporation, showing that he was not a resident of the state of Washington, that on the twenty-ninth day of January, 1897, he came to the state of Washington, arriving at Seattle on February 2d, and was served with summons by the appellant in this action on the following morning.

Affidavits and counter-affidavits were filed, the case was tried upon said affidavits, and a judgment was rendered in favor of the defendant declaring the service of the summons to be void. It is contended by the respondent in its motion to dismiss that this is not an appealable order, but, whatever might be said concerning an order refusing to quash a summons, we think it is evident that an order quashing a summons in effect determines the action or proceeding and is therefore appealable under the statute.

It is objected also by the respondent that no proper exceptions were taken in the lower court to any of the findings of fact or conclusions of law made by the court, and we think this objection well taken. This case was tried as a mixed question of law