48 Wash. 574 | Wash. | 1908
The respondent brought this action in ejectment, to recover from appellants the possession of lots 8 and 9, in block 86, of Denny & Hoyt’s supplemental plat to the city of Seattle. The amended complaint alleged title in the plaintiff by mesne conveyance under patent from the United States, and that plaintiff had been in the open, notorious, and exclusive possession of said lots for more than twenty years, the payment of all taxes assessed against the property, and that defendants wrongfully and unlawfully withhold possession from the plaintiff. The appellants, for answer to the complaint, denied the allegations thereof, and alleged adverse possession in themselves since the year 1890.
The only evidence offered to show title in plaintiff is a plat showing these two lots to be shore land lots within the meander lines of Lake Union, and a deed from A. W. Frater, as receiver of the Merchants National Bank of Seattle, conveying
The court found as facts that the plaintiff went into possession of the lots in 1899, after acquiring the deed from Prater, receiver, and that plaintiff had paid taxes thereon under claim of title; that the lots were shore land lots; that
The appellants contend that the court should have dismissed the action for the reason that the plaintiff failed to show title or x'ight of possession. This position must be sustained. There was no effort made to show title in the plaintiff except by a deed from Frater, as receiver to plaintiff. It does not appear that Frater, as receiver or otherwise, ever had any title to the lots in question, or any interest therein. The court found that he never had possession. The court also
So far as the record in this case shows, neither party has any interest in the lots. The plaintiff does not claim to have acquired title or right of possession from the state. It is a well-settled rule in this state that, in actions in ejectment, the plaintiff must recover upon the strength of his own title, not upon the weakness of his adversary. Humphries v. Sorenson, 33 Wash. 563, 74 Pac. 690; George v. Columbia etc. R. Co., 38 Wash. 480, 80 Pac. 767; Helm v. Johnson, 40 Wash. 420, 82 Pac. 402. Respondent seeks to avoid this rule in this case by asserting that;
“Ejectment may be maintained upon the prior possession of plaintiff, or of parties through whom he claims, such possession being a sufficient prima facie title.” 15 Cyc. 30.
But this rule is not applicable to this case, because it is not shown that the plaintiff had prior possession. The evidence shows, and the court found, that plaintiff’s grantor had never been in possession, and that defendants were in possession of the greater portion of the lots at the time plaintiff obtained the deed from Frater, and that defendants have maintained such possession ever since. It is true the court found that, after plaintiff had purchased the interest of Frater, receiver, defendants obtained permission from plaintiff to occupy the lots as they had been occupying them theretofore. The evidence is conflicting upon this point, and it is not clear to us that this finding is correct, but assuming it to be correct, we think it is not sufficient to show a tenancy by the defendants under the plaintiff. It is conceded that defendants paid no rent and that they maintained possession continuously for about eighteen years. It is not shown that the plaintiff’s position was changed in any way by granting permission to defendants to occupy the premises. But if this granting permission to occupy the premises were alone sufficient to show a tenancy and holding under the plaintiff, the plaintiff might,
We are satisfied from the evidence and the findings of the court that neither party to this action has title to the lands in question, nor the right of possession, and therefore cannot maintain ejectment against the other. The judgment must therefore be reversed, and the action dismissed.
Hadley, C. J., Crow, and Dunbar, JJ., concur.
Root, J., concurs in the result.
Rudkin and.Fullerton, JJ., took no part.