location of the machinery and the uses to which it is applied, that it can or cannot be advantageously guarded; but between these extremes there will necessarily arise a large class of cases where the question will be solely one of fact. The statute does not attempt to specify the particular machinery that shall be guarded, but declares that all machinery of a certain class shall be provided with proper safeguards, where this can be done advantageously. If there is a conflict in the testimony as to whether a particular machine can or cannot be advantageously guarded, the question must be submitted to the jury under proper instructions. Under our system of jurisprudence there is no other way to determine the fact. In this case there was ample testimony, if believed by the jury, to establish the fact that the chipper in question could have been guarded advantageously; and, if the jury so found, this would establish negligence on the part of the respondent as a matter of law, and preclude the defense of assumption of risk. In support of the defense of contributory negligence, the respondent first contends that there were other ways in which the signal might have been given with entire safety. True, the appellant testified that he was informed after the injury that there was a rope by means of which the signal might have been given, but that he knew nothing of this prior to the injury, and, further, that he might have given the signal by leaving his position and going around the end of the log. Whether there was another practical method of giving the signal in question could not be decided on the record before us as a matter of law. The other ground of contributory negligence, and the one upon which the court below apparently based its ruling, was the fact that the appellant knew where the chipper was, knew that it was unguarded, and knew that if his hand came in contact with the revolving knives injury would result. In passing upon the motion for nonsuit, the court said: "It must have been in a moment of forgetfulness that the plaintiff threw his hand up in contact with the knife. law does not permit an operative who goes to work in a place of manifest danger to forget." The rule thus announced is correct in a measure, but it has its limitations. If the court intended thereby that an employé in a mill, with his mind intent upon his work, must at all times remember at his peril every unguarded device in the mill about which he is employed, it placed too heavy a tax on the human intellect. If a workman, by some overt act of his, comes in contact with the machinery which he is operating and which is under his immediate control, he will ordinarily be held guilty of contributory negligence; but where, in the course of his employment, he comes in contact with un The guarded machinery which he is not operating and which is not under his immediate control, a different rule applies. Counsel for respondent cite Olson v. McMurray Cedar Lumber Co., 9 Wash. 500, 37 Pac. 679, Hoffman American Foundry Co., 18 Wash. 287, 51 Pac. 385, and numerous other cases in this court where it is stated that "men, when they are working around dangerous machinery, must notice. Their faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent." An examination of these cases will disclose the fact that the decisions were based in part, and in some cases almost exclusively, on the defense of assumption of risk, rather than of contributory negligence. We think this case is controlled by the recent decisions of this court in Hall v. West & Slade Mill Co., 81 Pac. 915, and Erickson v. McNeeley & Co. (decided Jan. 30, 1906) 84 Pac. 3, both of which arose under this same statute. In the former case the employé had knowledge of the unguarded set screw, and knew that if his clothing came in contact with it serious injury would result. In the latter case the employé had knowledge of the unguarded saw, and of necessity knew the consequences of his falling upon it. In both cases the court held that the question of contributory negligence was for the jury. The rule is well established that a person is not necessarily guilty of contributory negligence as a matter of law simply because he had previous knowledge of the defect which caused the injury. Kane v. North Cent. Ry. Co., 128 U. S. 91, 9 Sup. Ct. 16, 32 L. Ed. 339; McQuillan v. Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. Rep. 799, and cases cited. On the authority of the above cases, the judgment is reversed, and the cause remanded, with directions to set aside the judgment of nonsuit and award a new trial. MOUNT, C. J., and FULLERTON, HADLEY, CROW, and DUNBAR, JJ., concur. ROOT, J., having been of counsel, did not participate. SAWYER v. VERMONT LOAN & TRUST (Supreme Court of Washington. Jan. 30, 1936.) An attorney, having in charge the collection of a debt due to his client, has authority to accept a deed from the debtor conveying land to the client in satisfaction thereof. [Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 200.] 2. SAME PARTY ENTITLED TO COMPLAIN OF WANT OF AUTHORITY. A mortgagee, in a mortgage executed by a husband and wife, cannot, after the husband's death, question the authority of an attorney to receive a conveyance from the wife of her in terest in the mortgaged premises in payment of a debt due to his client. 3. SAME RATIFICATION OF ATTORNEY'S ACTEFFECT. A ratification of a creditor of the act of her attorney in receiving a conveyance from a wife of her interest in land mortgaged by her and her deceased husband in payment of the debt due to the creditor is binding on the mortgagee. 4. DEEDS RECORDING-FAILURE OF OFFICER TO RECORD-EFFECT. Where a person has filed a deed for record in the county auditor's office, the failure of the auditor to record it does not affect the person's rights if the deed was properly indexed. 5. HUSBAND AND WIFE-COMMUNITY PROPERTY DISSOLUTION OF COMMUNITY RIGHTS OF SURVIVOR. - 1 Ballinger's Ann. Codes & St. § 4640, provides that on the death of an owner of real estate the same descends to the heirs. At a time a mortgage was executed by a husband and wife, a half of the premises was the individual property of the wife. Held, that the wife, on the husband's death, acquired a three-fourths interest in the land subject to the mortgage. 6. MORTGAGES-FORECLOSURE-ACTION-PARTIES GRANTEE OF MORTGAGOR-FAIlure to MAKE PARTY-EFFECT. A husband and wife, each owning a half interest in a tract, mortgaged the same. On the death of the husband the wife conveyed her interest to a third person. Subsequently the mortgagee foreclosed the mortgage without making the third person a party. Held, that the third person's rights were not affected by the foreclosure. 7. SAME. The mortgagee was unaware of the conveyance at the time of the entry of the foreclosure decree and sale at which he became purchaser. Held, that the third person, in order to obtain a decree awarding to her three-fourths of the premises, must pay three-fourths of the amount of the debt secured by the mortgage at the time of the entry of the foreclosure decree together with interest, less the amount by which three-fourths of the rents subsequent to the sale exceed three-fourths of the taxes, etc., paid by the purchaser. Dunbar, J., dissenting. Appeal from Superior Court, Spokane County; O. V. Linn, Judge. Action by Sarah O. Sawyer against the Vermont Loan & Trust Company. From a judgment for plaintiff, defendant appeals. Modified. A. E. Gallagher and W. J. Tharper, for appellant. James Dawson and F. E. Langford, for respondent. ROOT, J. This action was commenced for the partition of certain real estate and for an accounting as to the rents and profits thereof. Respondent alleges that she owns an undivided three-fourths, and the appellant an undivided one-fourth, of said property; that appellant ousted respondent from the possession thereof, and appropriated the entire rents and profits to its own use, and has not accounted therefor to respondent. Appellant denies respondent's title, and alleges, as affirmative defenses, foreclosure proceedings, adverse possession, seven years' payment of taxes, and no joinder of respondent's husband. The facts were about these: In 1890 one Hattie G. Tilton and her husband, F. A. Tilton, executed to appellant a mortgage upon this property. In 1892 said F. A. Tilton died intestate leaving his wife, said Hattie G. Tilton, and four children surviving him. On April 15, 1835, there was filed for record in the office of the county auditor a quitclaim deed of all of the interests of said Hattie G. Tilton to this respondent, who is her mother, and to whom it is claimed there was an indebtedness owing at that time which was settled by the execution and delivery of said deed. This deed was delivered to one Dawson, who was an attorney for respondent, having in charge the collection of the indebtedness of respondent against said Hattie G. Tilton. Said Danson placed said deed of record without first having notified respondent, who resided in one of the New England states. On the 18th day of April, 1895, appellant commenced an action to foreclose said mortgage, and made said Hattie G. Tilton, both in her individual capacity and as administratrix of the estate of her late husband. together with all of the children, defendants, and the usual proceedings were had, culminating in a judgment and decree and a sale of the property and confirmation thereof. The property was bought in at said sale by appellant, who has ever since been in possession thereof. On the said 18th day of April, 1895, appellant filed in the office of said county auditor a notice of lis pendens in the usual form. The quitclaim deed filed as aforesaid on the 15th day of April was not, as a matter of fact, recorded until May 14, 1895. Appellant contends: (1) That the deed was taken and filed without authority; (2) that the deed was not indexed when the lis pendens was filed, and was not notice to the appellant until after it was indexed; (3) that the filing of the deed, without authority of respondent and without her knowledge and consent and before she accepted it, could not be notice to the appellant; (4) that, even if it was notice, such notice was good only for 20 days, and expired before May 14, 1895, when it was recorded, and that it then lost its priority over the lis pendens; (5) that respondent never accepted a deed; (6) that Eli D. Sawyer, husband of respondent, was and is a necessary party to this proceeding; (7) that, at most, the respondent acquired only a one-half, instead of a threefourth, interest in the property. Appellant, in its brief, assigns 59 errors, but says: "There are only three questions in this the other assignments being made because they depend upon errors to be considered under the three questions: * * First. Did the plaintiff, or the community composed of the plaintiff and her husband. acquire any interest in the property in question by the deed from Hattie G. Tilton to plaintiff, of date April 15, 1895, as against appellant's foreclosure? Second. if any interest was acquired in the property in question, was that a community interest case; * * * or the separate property of the respondent? * * Third. If an interest was acquired and it was separate property of the respondent, was that a half interest or three-fourth's interest in the property in question?" Respondent moves to strike appellant's brief, for the following reasons: "(1) Appellant has wholly failed and refused to discuss any one of the many alleged errors assigned in its brief; and the same are thereby waived, and there is nothing before the court to decide. (2) Appellant has confined the discussion in its brief to matters not assigned as errors in its said brief. (3) It nowhere appears, by said brief, that any of the questions that are discussed in its said brief were ever called to the attention of the court below or passed upon by the court." Appellant has an opening brief of 145 pages. Respondent retaliated with a brief of 160 pages, to which appellant made retort with a brief of 52 pages. While there is some merit in the motion, yet, on the whole, we do not think it well to strike the briefs. The motion will be denied. We will endeavor to notice the appellant's contentions seriatim. We think the attorney Danson had authority to accept this deed in payment of the indebtedness from Mrs. Tilton to respondent, and we cannot see how appellant can be regarded as being in a position to question Danson's authority in the premises. It is evident that his authority was ratified by his client; and, even if there had been no express authority, we think the ratification would be binding as against appellant. But The question of priority as between the quitclaim deed and the lis pendens presents some difficulty. It is conceded that the quitclaim deed was filed for record in the auditor's office several days before the lis pendens was filed and before the foreclosure action was commenced. The quitclaim would therefore be presumed to have priority. there was some evidence that the index required by the statute to be kept by the county auditor did not show the quitclaim deed at the time of the filing of the lis pendens. In the light of all the evidence, we do not feel justified in making a finding on this question which would overturn the trial court's judgment. The question of authority of Danson to receive the quitclaim deed could not have a bearing upon the question of priority of filing under the circumstances revealed in this case. We cannot agree with the appellant's contention that the notice by the filing of said quitclaim deed would be good for only 20 days, unless said deed was actually recorded. When a person has filed in the county auditor's office for record an instrument authorized to be recorded, we do not think the delay or neglect of the county auditor in actually recording said instrument can militate against the party who duly filed said instru ment for record, if it was promptly and properly indexed in the book required by law to be kept for that purpose. Malbon v. Grow, 15 Wash. 301, 46 Pac. 330. We think it clearly appears that respondent did accept the quitclaim deed. We do not think that respondent's husband was a necessary party to this suit. The statutes of New Hampshire (the home state of respondent and her husband) which are pleaded, together with the evidence in the case, sufficiently show authority in respondent to maintain the action in her sole name and right. The evidence showed that onehalf of the property at the time the mortgage was given was the separate individual property of Mrs. Tilton. When her husband died the community existing between herself and him was dissolved, and she then became the owner of an undivided one-half interest in and to the other half of the property which they had owned together as community property. The statute (section 4640, 1 Ballinger's Ann. Codes & St.) provides that, upon the death of an owner of real estate, the same immediately descends to his heirs. Hence, when Mrs. Tilton made the quitclaim deed to respondent, she thereby conveyed all of her interest in and to said property, which was a three-fourth's interest, subject to the mortgage. This court has held that, in a foreclosure proceeding against real estate, where the mortgagor has since the execution of the mortgage died, it is necessary to make his heirs at law parties defendant. Anrud v. Scandinavian Bank, 27 Wash. 16, 67 Pac. 364. In this case, Mrs. Tilton having deeded all of her interests to the respondent, and the latter not having been made a party defendant in the foreclosure proceedings, it follows that her rights in and to the property were in no wise affected by such court proceedings. But, under the facts admitted and established in this case, we do not believe respondent was entitled to the relief given by the honorable superior court. It is evident that appellant was unaware of the deed from Mrs. Tilton to respondent, at the time of the entry of judgment and decree, and until long after the sale and shortly before the commencement of this action. Respondent has never paid any portion of the indebtedness which was secured in part by the property which was conveyed to her by her daughter. It has been held by this court that, when a mortgagee takes possession in good faith after sale, as purchaser, under a void foreclosure proceeding, he becomes, in effect, a mortgagee in possession against whom the statutes of limitation do not run, and that he may be given equitable relief. Sloane v. Lucas, 37 Wash. 348, 79 Pac. 949; Investment Co. v. Adams, 37 Wash. 211, 79 Pac. 625. We do not think respondent established facts sufficient to entitle her to a partition unconditionally. The case will be remanded to the superior court, with the following Instructions: Respondent may, within 60 days from the filing of the remittitur in the clerk's office of the trial court, pay to appellant, or into the registry of the court for its use, three-fourths of the amount justly due and owing on account of the indebtedness secured by said mortgage, to be ascertained as follows: Threefourths of the amount of principal and interest (not including costs or attorney's fees) due at the time of the entry of the judgment and decree in the foreclosure suit, together with interest at 12 per cent. per annum, as provided in the note, mortgage, and judgment, on said sum, to date when payment shall be made, less the amount by which the three-fourths of the rents and profits exceed three-fourths of the taxes, repairs, and improvements made upon said property by appellant, with legal interest on all there of said sums, to be determined from the findings in this case and by evidence covering the time elapsing from the date the judgment was entered in the superior court in this case up to the time when final judgment shall have been entered or payment made. Upon making such payment, respondent may amend her complaint and have a judgment and decree awarding to her a three-fourth's interest in and to said property to be partitioned by the trial court. If such payment be not made within the 60 days prescribed, a judgment of dismissal shall be entered against respondent. Neither party shall recover costs on this appeal. Ballinger's Ann. Codes & St. § 4808, providing that if a cause of action shall accrue against any person who shall be out of the state such action may be commenced within the time limited after the return of such person into the state, applies not only to persons who have resided in the state and have removed therefrom, but to persons who have never at any time resided within the state. [Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 456-463.j 2. SAME-ACCRUAL OF RIGHT OF ACTIONPLACE OF ACCRUAL. Under Ballinger's Ann. Codes & St. § 4818, providing that when a cause of action has arisen in another state between nonresidents of this state, and is barred by lapse of time by the laws of the state where the cause of action arose, no action shall be maintained thereon in this state, is inapplicable to an action on a judgment entered by consent in the courts of this state for and against nonresidents of the state, for under such circumstances, the cause of action will be deemed to have arisen in this state. [Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 655.] Fullerton and Crow, JJ., dissenting. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge. Action by the Omaha National Bank against Emma A. Lindsay. From a judg ment for plaintiff, defendant appeals. Affirmed. Charles A. Murray, for appellant. P. C. Shine and W. L. Husbands, for respondent. 1897, a judgment was rendered and entered in the superior court of Spokane county in favor of respondent, a national bank doing business in Omaha in the state of Nebraska; said judgment being against Emma A. Lindsay, this appellant, and her husband, Milon S. Lindsay, for the sum of $12,927. At that time appellant and her husband were, and ever since have been, residents and citizens of the state of Idaho, residing there continuously. This action was commenced on the 5th day of March, 1904, as a common-law action based upon said judgment. Certain defenses interposed by said Milon S. Lindsay were held by the lower court to be good and sufficient, and the action was dismissed as to him. Appellant interposed as an affirmative defense the plea of the statute of limitations, setting up section 4030 of the Revised Statutes of Idaho of 1887, which provides that "civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except when in special cases, a different limitation is prescribed by statute," and alleging that section 4051 of said Revised Statutes of Idaho makes six years the period in which an action may be begun upon a judgment of any court of the United States or of any state or territory therein; and that there were no other statutes contravening the provisions of these pleaded. The lower court held the defense insufficient, and gave judgment in favor of respondent. From this judgment an appeal is prosecuted. ROOT, J. On the 17th day of February, The only question presented is as to the statute of limitations. Appellant maintains that as she was a resident of Idaho at the time the judgment sued on was made and entered in this state, she could have been immediately sued in Idaho upon said judgment, and that consequently the statute of limitations in Idaho began to run at that time, and adopted and followed for so long a time must be controlling now. This leaves only the question as to whether or not section 4818 is available to appellant, and that must be ascertained by a determination of the question as to whether the action can be said to have "arisen" in this or some other state. We think, under the circumstances of this case, the action must be said to have arisen in this state. This being true, we must. upon the authority of former deci erned by section 4808. Freundt v. Hahn, 24 Wash. 8, 63 Pac. 1107; Chevrier v. Robert, 6 Mont. 319, 12 Pac. 703; Powers Mercantile Co. v. Blethen, 91 Minn. 339, 97 N. W. 1056; Goodnow v. Stryker, 62 Iowa, 221, 14 N. W. 345, 17 N. W. 506; Emerson v. Steamboat Shawano City, 10 Wis. 433. The judgment of the superior court is affirmed. MOUNT, C. J., and DUNBAR, RUDKIN, and HADLEY, JJ., concur. FULLERTON, J. The cause of action was not the judgment sued on, but the contract which gave rise to the judgment. It did not, therefore, accrue in this state, and the plea of the statute of limitations of Idaho should have prevailed. For this reason I dissent from the conclusion of the majority. that, as six years had expired prior to the commencement of this action, the latter is barred. She maintains that this action "arose" in Idaho, for the reason that at the time of the entry of the judgment which constitutes the subject-matter of this suit, she could have been sued in Idaho and in no other state, inasmuch as the courts of no other state could have had jurisdiction both of the subject-matter and her personally. Respondent maintains that the cause of action arose in this state; that the judgmentsions of the court, hold that the case is govwas taken in a suit by consent of the appellant and her husband, and that they were for all legal purposes deemed to have been present and residents of the state of Washington at the time said judgment was entered; and that, even if they be not deemed to have been present and residents of the state at that time, nevertheless, the fact of the court's then and there having jurisdiction of the subject-matter, and having properly and legally made and entered the judgment, such judgment at its inception marked the time when the cause of action originated for the present action. It is also suggested that, if the entry of the judgment did not constitute an "arising" of the cause of action in this state, said entry of judgment gave rise to the cause of action in the state of Nebraska, of which state the respondent was then a resident; that the judgment being personal property, its situs was at the home of the owner; and that, inasmuch as the statutes of limitation of the state of Nebraska are not pleaded, no reason appears why the case should not be controlled by the statutes of this state. Respondent relies upon section 4808, 2 Ballinger's Ann. Codes & St., which reads as follows: "If the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited after the return of such person into the state, or after the time of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action," and urges that section 4818, Ballinger's Ann. Codes & St., avails appellant nothing in this case. pellant contends that section 4808 is not applicable as against her in this case, for the reason that she never was a resident of this state, and that said section could only apply where the defendant was a resident of the state at the time the cause of action arose, and left afterwards. This court has construed section 4808 as applicable, not only to persons who have resided in the state and then removed therefrom, but also to those who have never at any time resided within the state. Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767; Weber v. Yancy, 7 Wash. 84, 34 Pac. 473. Such construction having been Ap CROW, J. I concur with FULLERTON, J. MAIN v. HADFIELD. Ballinger's Ann. Codes & St. § 6212, au- Appeal from Superior Court, King County; A. W. Frater. Judge. Special proceeding by John F. Main, administrator of William Urquhart, deceased, against Charles Hadfield. From an order requiring defendant to answer interrogatories and committing him to jail until the inter |