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on, and paid the purchase price, is entitle} | authorized sale of his property, is estopped to a specific performance of the contract. to dispute the validity of the sale.

Rev. Stat. $ 6008; Wait, Fraud. Conv. Escolle v. Franks, 67 Cal. 137, 7 Pac. 2d ed. $$ 436, 437; 2 Lomax's Digest of 425; Godman v. Winter, 64 Ala. 410, 38 Real Prop. 41; Thomas v. Dickinson, 12 N. Am. Rep. 13; France v. Haynes, 67 Iowa, Y. 364; Holland v. Hoyt, 14 Mich. 238; But 139, 25 N. W. 98; Schenck v. Sautter, 73 ler v. Lee, 11 Ala. 885, 46 Am. Dec. 230; | Mo. 46; Moore v. Hill, 85 N. C. 218; Field Will:inson v. Scott, 17 Mass. 249; Linscott v. Doyon, 64 Wis. 560, 25 N. W. 653; Booth v. McIntire, 15 Me. 201, 33 Am. Dec. 602; v. Wiley, 102 Ill. 84. Gibson v. Wilco:ren, 16. Ind. 333; Bowen v. A wife is estopped from claiming that Bell, 20 Johns. 338, 11 Am. Dec. 286: she did not join in the conveyance. Stowell v. Tucker, 7 Idaho, 312, 62 Pac. Mudgett v. Clay, 5 Wash. 103, 31 Pac. 1033.

424; Sadler v. Niesz, 5 Wash. 182, 31 Pac. Sections 3040 and 3041 of the Revised 630, 1030; Konnerup v. Frandsen, 8 Wash. Statutes of 1887, covering the conveyances 551, 36 Pac. 493; Payne v. Still, 10 Wash. and abandonment of the homestead, are 433, 38 Pac. 994; Boston Clothing Co. v. simply rules of evidence and are controller Solberg, 28 Wash. 263, 68 Pac. 715; Washby the same legal principles as conveyances ington State Bank v. Dickson, 35 Wash. 641, falling under the statute of frauds.

77 Pac. 1067; Shinn v. Macpherson, 58 Cal. Andola v. Picott, 5 Idaho, 27, 46 Pac. 599; Riddell v. Shirley, 5 Cal. 488; Bishop 928; Stowell v. Tucker, 7 Idaho, 312, 62 v. Hubbard. 23 Cal. 514, 83 Am. Dec. 132; Pac. 1033; Law v. Butler, 44 Minn. 482, 9 lunt v. Neeley, 67 lowa, 97, 24 N. W. 739 ; L. R. A. 856, 47 N. W. 53; Walker v. Kelly, Wooters v. Feeny, 12 La. Ann. 449; Norton 91 Mich. 212, 51 N. W. 934; Harkness v. v. Vichols, 35 Mich. 149; Reed v. Morton, Burton, 39 Iowa, 101.

24 Neb. 760, 1 L. R. A. 736, 8 Am. St. Rep. Where an oral conveyance of land is 247, 40 N. W. 282; Bodine v. Killeen, 53 N. made, which ought to have been in writing, Y. 93; Godfrey v. Thornton, 46 Wis. 679, and acknowledged under the statute of 1 N. W. 362; Sexton v. Wheaton, 8 Wheat. frauds, in a state, and the vendee has been 239, 5 L. ed. 607; Parker v. Coop, 60 Tex. placed in possession of the property by the 111; Storrs v. Barker, 6 Johns. Ch. 166, 10 vendor and paid the purchase price, if there Am. Dec. 316; Brown v. Coon, 36 Ill. 243, be nothing illegal or immoral in the trans- 85 Am. Dec. 402; Anderson v. Cosman, 103 action, a court of equity will decree specific 'owa, 266, 64 Am. St. Rep. 177, 72 N. W. performance of the verbal contract.

523; Bradshaw v. Remick, 90 Iowa, 409, Wait, Fraud. Conv. $$ 436-438, and 57 N. W. 897; Lawrence v. Spear, 17 Cal. notes; Andola v. Picott, 5 Idaho, 27, 46 421; Reis v. Lawrence, 63 Cal. 129, 49 Am. Pac. 928; Von Rosenberg v. Perrault, 5 Rep. 83. Idaho, 719, 51 Pac. 774; Stowell v. Tucker,

Where the husband alone aliens home7 Idaho, 312, 62 Pac. 1033; Grimshaw v. stead, and delivers or abandons premises, Belcher, 88 Cal. 217, 22 Am. St. Rep. 301, it has been held null in favor of grantees, and note, 26 Pac. 84; Flickinger v. Shaw, and so vests title in him notwithstanding 87 Cal. 126, 11 L. R. A. 134, 22 Am. St. the invalidity of conveyance. Rep. 234, and notes, 25 Pac. 268; Bur- Broun v. Coon, 36 ll. 243, 85 Am. Dec. lingame v. Rowland, 77 Cal. 315, 1 L. R. A. 402; Fishback v. Lane, 36 III. 437; Hall v. 829, 19 Pac. 526; Manly v. Howlett, 55 Cal. Fullerton, 69 III. 448; Stewart v. Mackey, 95; Bakersfield Town Hall Asso. v. Chester, 16 Tex. 56, 67 Am. Dec. 609; Jordan v. 55 Cal. 98; Anson v. Townsend, 73 Cal. 415, Godman, 19 Tex. 273; Vasey v. Township, 1, 15 Pac. 49; Freeman v. Hreeman, 51 Barb. 59 Ill. 188; Harkness v. Burton, 39 Towa, 306; Karns v. Olney, 80 Cal. 90, 13 Am. St. 101; McDonald v. Crandall, 43 Ill. 231, 92 Rep. 101, 22 Pac. 57; Sedgw. & W., Trial of Am. Dec. 112; Hoskins v. Litchfield, 31 Ill. Title to Land, 844-847; Fry, Spec. Perf. 137, 83 Am. Dec. 215. 259, 260; Bigelow, Estoppel, 3d ed. 470, There can be no reason why a married 513; Gilbert v. American Surety Co. 61 L.

should not be estopped by her R. A. 253, 57 C. C. A. 619, 121 Fe:l. 499 ; fraudulent acts when they amount to a tort. Manchester & L. R. Co. v. Concord R. Corp. Glidden v. Strupler, 52 Pa. 403; Johns 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. v. Reardon, 11 Md. 470. Rep. 319, 49 Am. St. Rep. 582, 20 Atl. 383. Messrs. Forney & Moore, for respond

The statute of frauds, applies to ex- ents: ecutory, and not to executed, contracts. The statutes of Idaho specifically declare

Coffin v. Braabury, 3 Idaho, 770, 95 Am. how the sale of a homestead may be made. St. Rep. 37, 35 Pac. 715.

This method of procedure excludes all The rule of estoppel is that one who, with others. knowledge, accepts the proceeds of an un- Barton v. Drake, 21 Minn. 305; Law v.

Woman

Butler, 44 Minn. 482, 9 L. R. A. 858, 47 N. | Leftwich v. Neal, 7 W. Va. 569; Elliott v. W. 53.

Peirsol, 1 Pet. 328, 7 L. ed. 164; Barnett v. A married woman can only be devested Shackleford, 6 J. J. Marsh. 532, 22 Am. of her estate in the manner prescribed by Dec. 100; Stewart, Husb. & W. 88 409-420; statute, and the homestead can only be con Washb. Real Prop. 4th ed. p. 78. veyed in the mode prescribed by statute.

Mathews v. Davis, 102 Cal. 207, 36 Pac. Sullivan, Ch. J., delivered the opinion 358; Jackson v. Torrence, 83 Cal. 533, 23 of the court: Pac. 695; Cohen v. Davis, 20 Cal. 195; This is an action to compel specific perSecurity Loan & T. Co. v. Kauffman, 108 formance of a contract for the conveyance of Cal. 218, 41 Pac. 467; Gleason v. Spray, 81 real estate situated in Moscow, Latah counCal. 217, 15 Am. St. Rep. 47, 22 Pac. 551; ty. It appears from the record: That the Barber v. Babel, 36 Cal. 14; Mellen v. Mc- respondents are husband and wife, and that Mannis (Idaho) 75 Pac. 98.

on the 7th day of January, 1895, the husOn petition for rehearing.

band purchased the E. 42 of lots 4, 5, and The wife is released from her common 6 in block 2, Fry's addition to the town of law disability only in so far as an enlarge. Moscow, Latah county, and the considerament of her rights may be given by statute, tion paid therefor was money acquired by and no farther.

the respondent Jay Woodworth subsequent Bassett v. Beam, 4 Idaho, 107, 36 Pac. to the marriage of the respondents. That 501; Dernham v. Rowley, 4 Idaho, 754, 44 on the 20th day of March, 1895, while re Pac. 643; Northwestern & P. 11. Bank v. spondents were residing on said premises Rauch, 5 Idaho, 752, 51 Pac. 764, 7 Idaho, and occupying the same as a homestead, 152, 61 Pac. 516.

the respondent Lillie I. filed her declaration Fraud will not devest a married woman's of homestead upon said premises. That title in the face of a statute declaring a some time prior to the 30th day of August, different and exclusive mode of devestiture. 1901, the respondents had removed from

Morrison v. Wilson, 13 Cal. 495, 73 Am. Moscow, in the county of Latah, to Wallace, Dec. 593; Matheus v. Davis, 102 Cal. 207, in the county of Shoshone, and that respond36 Pac. 358; Jackson v. Torrence, 83 Cal. ent Woodworth had listed said property for 533, 23 Pac. 695; California Fruit Transp. sale with real-estate agents residing and Co. V. Anderson, 79 Fed. 404; Security Loan doing business in said town of Moscow at & T. Co. v. Kauffman, 108 Cal. 218, 41 Pac. the price of $1,500; and on said last-men467; Gleason v. Spray, 81 Cal. 217, 15 Am. tioned date the appellant paid to said St. Rep. 47, 22 Pac. 551; Barber v. Babel, agents for the respondent $25 for a thirty36 Cal. 14; Kantrowitz v. Prather, 31 Ind. day option to purchase said premises, and 92, 99 Am. Dec. 587; Steel v. St. Louis thereafter, on the 20th day of September, Smelting & Ref. Co. 106 U. S. 447, 27 L. ed. the appellant took up said option, and orally 226, 1 Sup. Ct. Rep. 389.

promised the said agents to purchase said The ratification of an invalid sale by the premises, and to pay the sum of $1,500 acceptance of the purchase money is wholly therefor, as follows to wit: To assume a destitute of the essential elements of mortgage upon said premises executed by estoppel in pais.

the respondents to the Vermont Loan & Henshaw v. Bissell, 18 Wall. 271, 21 L. Trust Company to secure the payment of ed. 838; Pasley v. Freeman, 3 T. R. 51. $550, together with interest thereon, and

For an estoppel in pais there must be $550 in cash; and thereupon, with the conconduct, acts, language, or silence, amount- sent of said agents, the appellant entered ing to a representation or concealment of into the possession of said premises, and material facts, and the misrepresented or moved his family into the residence situated concealed facts known to the party sought upon said premises, and has ever since octo be charged with the estoppel, and uncupied the whole of said premises as a resiknown to the other party; and the con- dence, all of which · was known to the reduct must be with the expectation that it i spondents. That, instead of paying said will be acted on, or will likely be.

$550 as agreed, the same was paid in pay. Norfolk & J. R. Co. v. Perdue, 40 W. nents as follows: November 1, 1901, $100; Va. 454, 21 S. E. 755; Williamson v. Jones, December 1, 1901, $175; January 4, 1902, 43 W. Va. 562, 38 L. R. A. 700, 64 Am. St. $100; July 6, 1902, $100; September 10, Rep. 891, 27 S. E. 410; Glidden v. Strupler, 1902, $100; aggregating in all the total sum 52 Pa. 402.

of $525. Said sums were paid over by the Equity cannot breathe life into a legal | agents to the respondent Jay Woodworth. nonentity.

That after said payments were made the 1 Story, Eq. Jur. [177; Herman, appellant personally demanded of Jay Estoppel, ( 1099; Mattox v. Hightshue, 39 Woodworth a deed to said premises, and Ind. 95; Rogers v. Iliggins, 48 Ill. 211; I offered to pay him then and there the $25

still due on the purchase price, with inter- | wife as provided in chapter 3 of this title. est on all deferred payments, and the said "Sec. 2922. No estate in the real property Woodworth promised to execute a convey of a married woman passes by any grant or ance to said premises as soon as he con- conveyance purporting to be executed or acveniently could. That after the appellant knowledged by her, unless the grant or inhad entered into possession of said premises strument is acknowledged by her in the man. he made improvements thereon of the value ner prescribed in chapter 3 of this title, and of $250. That after appellant had so en- her husband, if a resident of the territory, tered into the possession the respondent Lil. joins with her in the execution of such grant lie I. was informed of the improvements or conveyance." made thereon, and knew that said improve- “Sec. 3040. The homestead of a married ments had been made and possession taken person cannot be conveyed or encumbered unby the appellant under the belief that he less the instrument by which it is conveyed was the owner of said premises, and to all or encumbered is executed and acknowl. of which said Lillie I. maile no objection, edged by both husband and wife. and consented thereto. Thereafter, in the "Sec. 3041. A homestead can be abandoned month of March, 1903, the appellant again only by a declaration of abandonment, or tendered the respondents the sum of $25, as a grant or conveyance thereof, executed and the balance still due on the purchase price, acknowledged (1) by the husband and wife, and demanded of them that they execute to if the claimant is married; (2) by the claimhim a good and suthcient deed of convey. | ant, if unmarried.” ance to said premises, which demand the re- Prior to the adoption of $ 3041, above spondent then and there refused, and the quoted, creditors of the homesteader often respondent Jay Woodworth, when asked his attached the premises homesteaded, and atreason for refusing to execute the deed, in- tempted to subject the same to the payment formed the appellant that he had consulted of the debt, on the ground of abandonment; with attorneys, and they had advised him and, in order to make the homestead more that he could not be compelled to make the secure, a rule of evidence was established by deed. That the payments made by appel- the adoption of said section, and any litilant, including the $525 referred to. together gant attempting to subject the homestead with interest on said mortgage, taxes, and to the payment of his debt must show that the improvements made by appellant, make the same was abandoned by a written deca total of $1,181.57. Upon the foregoing laration of abandonment, properly executed facts, judgment was rendered in favor of and acknowledged. The provisions of that the respondents, decreeing to them the pos- section are not applicable to the case at bar. session of said premises, and granting to The case of Mellen v. McMannis (Idaho) 75 the appellant a judgment for $844.72; that Pac. 98, decided by this court, is not in point. being the balance after deducting the rental In that case it was not shown that the purat the rate of $12.50 per month, with inter- chaser ever went into the possession of the est thereon, from the sum of $1.181.37. premises or put any improvements thereon, above mentioned. The case was decided up- or that Clark ever accepted the purchase on the theory that a specific performance of price thereof, or that his wife ever knew anythe contract of sale could not be enforced, be thing about the sale or ever consented cause of the provisions of our statute in re

thereto. gard to the conveyance of real estate by mar

Sections 3040 and 3041 are in the nature ried women.

of rules of evidence, and are subject to the The question presented for decision is same legal principles as are conveyances fallwhether the respondents should be com- ing under the statute of frauds, and the pelled to convey said property to the appel. rules of equitable estoppel and waiver. We lant under the facts of this case, it having are aware that there is much conflict among been at one time occupied as a homestead. the decisions of the question of how far the The sections of our statute in regard to the doctrine of equitable estoppel applies to marconveyance or encumbrance of a homestead ried women. One of the leading decisions' by a married person, and the manner in of the Pacific Coast states is that of Alorwhich a homestead may be abandoned, are rison v. Wilson, 13 Cal. 495, 73 Am. Dec. as follows:

593. See also cas:s cited in 1 Notes on Cal"Sec. 2921. No estate in the homestead of ifornia Reports, pp. 604. 605. In $ 814, a married person, or in any part of the com- 2 Pomeroy's Equity Jurisprudence, it is munity property occupied as a residence by stated as follows: “Upon the question how a married person, can be conveyed or en far the doctrine of equitable estoppel by cumbered by act of the party, unless both conduct applies to married women, there is husband and wife join in the execution of some conflict among the decisions. The the instrument by which it is so conveyed or tendency of modern authority, however, is encumbered, and it be acknowledged by the strongly towards the enforcement of the

as

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estoppel against married women, as against otherwise than by operation of law, or a persons sui juris, with little or no limita- conveyance or other instrument in writing, tion on account of their disability. This subscribed by the party creating, granting, is plainly so in states where the legislation assigning, surrendering, or declaring the has freed their property from all interest or same, or by his lawful agent thereunto control of their husbands, and has clothed authorized in writing. It is conceded that them with partial or complete capacity to no instrument in writing has been executed deal with it as though they were single. in this case. Section 6008, Rev. Stat., Even independently of this legislation there provides that the section above cited must is a decided preponderance of authority sus- not be construed to affect the power of a taining the estoppel against her either when testator in the disposition of bis real propshe is attempting to enforce an alleged erty by a list will and testiment, nor to right or to maintain a defense.” The author prevent any trust from arising or being excites modern English cases, well as tinguished by implication or operation of American. to sustain the text. In the case law, nor to abridge the power of any court of Galbraith v. Lunsford, 87 Tenn. 89, 1 L. to compel the specific performance of an R. A. 522, 9 S. W. 365, in referring to Mor- agreement in of port performance rison v. Wilson, 13 Cal. 495, 73 Am. Dec. thereof. In the case at bar it is shown that 593, the Tennessee court says that the case the contract sued on is an executed contract, of Morrison v. Wilson, 13'Cal. 495, 73 Am. so far as appellant is concerned. Hence, so Dec. 593, "relie! so confidently by far as the statute of frauds is concerned. counsel for complainant, seems to not only the trial court should have compelled the deny the application of an estoppel in pais respondents to convey the property in conto a married woman, but goes so far as to troversy, by good and sufficient deed, to the hold that affirmative fraud on her part will appellant. Courts of equity will not permit not effect that result. It is sufficient to say the statute of frauds or the statute in reof this cise that it not only loses sight of gard to conveyance of married women to be the distinction referred to as to defective a shield to protect fraud; and those statutes execution of a contract, but is directly op- were not enacted to encourage frauds and posed to our own adjudged cases, so far as cheats. The appellant had paid the price the element of 'fraud is concerned.” In 'greed to be paid for the property, had l'ilcher v. Smith, 2 Head, 208, it is said: taken possession thereof, and expended $250 “The legal disability of coverture carries in improving the same, all of which was with it no license or privilege to practise assented to by respondent Lillie I.; and, fraud or deception on other innocent per under the well-established rules of law apsons."

plicable to the case, the appellant is the The provisions of our statutes above quot- owner of the equitable title thereto. Beed must not be so construed as to permit cause of the facts of this case, the principle the respondent Lillie I. to reap the benefits that governs is more in the nature of an of a fraud perpetrated on the appellunt. It estoppel or waiver on the part of respondent must be borne in mind that there is no con- Lillie I., and not the broad principle of flict in the evidence in this case whatever. abandonment, as suggested by the provi. The legal disability of married women in sions of 3041, Rev. Stat., above quoted. this state has been almost entirely removed. While the provisions of the sections above They have been given elective franchise; quoted were made for the protection of they may hold oflice; and under the 2d sec- married woman, they were not intendel to tion of an act approved March 9, 1903 operate as a shield to relieve them against (Sess. Laws 1903, p. 346), the wife is given 1 fraudulent transaction, such as the one the management, control, and absolute under consideration, and she is estopped by

disposition of her separate her own acts from interposing the provision property, with like effect as a married man of said sections as a valid defense to this may in relation to his real and personal action. The verbal agreement for the transproperty. It is true that said act was fer of the homestead in question was aspassed subsequent to the contract involved sented to by both husband and wife, and in this suit, but this only tends to show and was followed by change of possession, and support the doctrine laid down in 2 Pom. permanent improvement placed thereon by Eq. Jur. $ $14.

the purchaser, and a płyment of the purAs to the statute of frauds, $ 6007, Rev. chase price. Those acts operated to transStat., provides that no estate or interest in fer the equitable title to the appellant. real property, other than for leases having That being true a court of equity will coma term not exceeding one yeur, nor any trust pel the respondents to convey the legal title or power over or concerning it, or in any to the appellant. manner relating thereto, can be created. The judgment is reversed, and the cause granted, assigned, surrendered, or declared I remanded for further proceedings in con

power of

ion:

formity with the views herein expressed. | parties and their privies, whether by blood, Costs are awarded to appellant.

by estate, or by contract. A stranger who

is not a party nor a privy can neither be Stockslager, J., concurs.

bound nor aided. Since the whole doctrine Ailshie, J., dissenting:

is a creature of equity and governed by If it should be conceded, which I am not equitable principles, it necessarily follows now prepared to do, that the doctrine of that the party who claims the benefit of an estoppel in pais can be applied to a mar:

estoppel must not only have been free from ried woman in this state, still I do not think fraud in the transaction, but must have actthe conduct of the wife, as shown in this ed with good faith and reasonable diligence; case, is sufficient to establish an estoppel otherwise no equity will arise in his favor.” against her. It is clear from the record Applying this rule to the party claiming exthat the appellant did not contract with the emption from the doctrine of estoppel, what husband or part with his money upon any knew the defendant appellant entered into

is her stana.ng in a court of equity? She representation or action of the wife, and she cannot, therefore, be charged with any improvements thereon, and paid all but $25

the possession of the property, put valuable acts of fraud. It is equally clear, without of the agreed purchase price, and then, when citation of authority, that the wife sloul i he demands a deed, comes into a court of not be held for the fraudulent acts of her equity and asks for relief under a plea that husband, in which she has not particip :ted. She had filed a homestead declaration on the For this reason, the judgment should be affirmed.

property; he offering to allow plaintiff to

take judgment for amount found due the A petition for rehearing having been filed. plaintiff after deducting rental for the propStockslager, Ch. J., on May 13, 1905, erty for the time it was occupied by plainhanded down the following additional opin- tiff, and she asking to be dismissed with

her costs. Under the rule laid down by Mr. Counsel for petitioner filed a lengthy pe. | Pomeroy, above quoted, it is immaterial tition setting up many reasons why a re

whether there was an allegation or proof hearing should be granted. The earnestness of fraud on the part of the defendants or of the petition, and well-known ability of not. He says: “The party who claims the counsel representing her, prompted the court 'enefit of an estoppel must not only have to hear further argument, and a rehearing been free from fraud in the transaction, but was granted. Briefs were filed and argu must have acted with good faith and reasonments heard at the March term at Lewiston. able diligence; otherwise no equity will arise The questions discussed are, first, as to the in his favor.” Now, what was the duty of estoppel of Mrs. Woodworth; secondly, that Mrs. Woodworth when she visited the premi. of fraud on her part. These questions were ses in dispute, and found them occupied by discussed on the hearing, and were consid-appellant and his family, making valuable ered by the court from every standpoint be- and lasting improvements upon the house in fore the opinion was finally agreed upon. good faith, believing they were the owners We agree that the legislature of this state thereof ? Mrs. Grice, wife of appellant, testihas uniformly dealt kindly, and we think fies: “I am the wife of plaintiff. Was his fairly, in protecting married women in their wife at the time he moved into and took property rights. In this legislation for her possession of the Woodworth property. Am protection, it was not intended to shield her acquainted with Mrs. Woodworth, one of the in any wrongful act. Under the facts in defendants in this action. Have known her this case, which are fully stated in the opin- for eight or nine years at Moscow. She ion by Mr. Chief Justice Sullivan, I do not was living either at Wallace or Wardner at think she can escape the doctrine of equi. the time we took possession of the property. table estoppel. Counsel for petitioner call I knew of her coming back to Moscow two our attention to a number of authorities, years ago,--the spring of 1902. I was down among them bemg $ 813, Pomeroy's Eq. Jur., at the hospital one afternoon, and met Mr. vol. 2. We quote the section from their Woodworth in the hall. He was going brief: "The measure of the operation of an down-stairs, and he said:

'Lillie is upestoppel is the extent of the representation stairs. You had better go upstairs and see made by one party, and acted on by the oth her. Miss Baker was with me at the time.

The estoppel is commensurate with the We went upsturs. Mrs. Woodworth was in thing represented, and operates to put the the parlor, and we sat down and talked. party entitled to its benefit in the same po. In our conversation, she asked me how I sition as if the thing represented were true. liked our new home. I said, 'Real well;' With respect to the persons who are bound that it was fine, and such a pretty location, by, or who may claim the benefit of, the es. --and remarked that it was rather large. toppel, it operates between the immediate! She said that was the objection she always

er.

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