57 Wash. 662 | Wash. | 1910
Lead Opinion
On April 7, 1891, Ernest Luckner became the owner in fee simple of lot 3, in block 1, of Mills & Randall’s Canal addition to the city of Seattle. He died intestate on December 2, 1899, without having disposed of the property, leaving as his wife Minna Luckner, and five children, Bernard, Anton, Annie, Louise, and Emma. The taxes were suffered to become delinquent on the property and a delinquency certificate therefor was taken out on October 16, 1900, by one C. P. Rollins, and in the November following, proceedings were begun to foreclose the same. These proceedings were prosecuted to judgment, resulting in a sale of the property, at which sale Rollins became the purchaser for the amount of the taxes then due and the costs of the foreclosure proceedings. Subsequently Rollins conveyed his interests to the respondent, Mossbach.
On June 17, 1907, Minna Luckner, Anton Luckner, Louise Luckner, Anna Papenberg, and Emma Pankow, by quitclaim deed, conveyed their interests in the property to the appellant. Thereafter the appellant began the present action against the respondent Mossbach and others to recover
On the trial the appellant offered evidence tending to support his averment as to the foreclosure proceedings, and certified copies from the county records showing mesne conveyance from the government of the United States to Ernest Luckner. He then offered in evidence the deed from the heirs of Ernest Luckner to himself. This deed was rejected as evidence by the court, apparently for the reason that the grantors were in no way connected with the title of Ernest Luckner. The appellant thereupon introduced the deposition of Anna Papenberg, who testified that she was a daughter of Ernest Luckner; that her father died December 2, 1899; that he left as his sole heirs at law the grantors named in the quitclaim deed to appellant, together with one Barnard Luckner, a son, who had died some three years prior to its execution. She also testified that her mother, who had j oined in the deed, was not then of perfectly sound mind. The appellant further offered evidence tending to show a tender to the respondent of the amount of taxes and penalties paid by him to the county and state, and then rested.
The court thereupon announced that it would render judgment for the respondent, and subsequently made findings of fact in which it found that Ernest Luckner was the owner of the property at the time of his death, that respondent was in possession of the property, and that the foreclosure proceedings were regular and sufficient. It found that $70 had been tendered respondent as taxes prior to the commencement of the action, but averred that it was unable to find from the evidence whether or not this was a sufficient tender. On the question of the appellant’s title it made the following findings:
“(4) That on or about the 17th day of June, 1907, the plaintiff in this action accepted a quitclaim deed from
“(5) That no other evidence was introduced in this action of any interest, title or right in the plaintiff L. H. Craver, than such as came to him by reason of said quitclaim deed from Minna Luckner, Anton Luckner, Louise Luckner, Anna Papenberg, and Emma Pankow.
“(6) That Minna Luckner, one of the persons making said quitclaim deed, was the wife of Ernest Luckner, deceased, and was of unsound mind at the time of making the quitclaim deed heretofore referred to, having insufficient ability and knowledge to properly convey said property.”
It also found that the appellant had never been in possession of the property, and that the appellant’s claim of interest therein was wrongful. As conclusions of law it found that the respondent was entitled to a judgment against the appellant to the effect that the appellant take nothing by his action, and that the respondent was entitled to a decree quieting his title as against the appellant’s claims. Judgment was entered accordingly.
The judgment must be reversed. The summons in the tax foreclosure proceedings was by publication, and was insufficient under the rule announced by this court in Thompson v. Robbins, 32 Wash. 149, 72 Pac. 1043; Smith v. White, 32 Wash. 414, 73 Pac. 480; Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536; Dolan v. Jones, 37 Wash. 176, 79 Pac. 640; and Wick v. Rea, 54 Wash. 424, 103 Pac. 462. The summons being insufficient and void, it follows as of course that the judgment entered thereon is void, and that the respondent, in so far as his claim of title is based upon the foreclosure proceedings, has no interest in or claim to the property. The tender was ample enough to permit the appellant to maintain the action. It was not rejected be
On the question of title the evidence shows that the appellant acquired by his deed from the heirs of Ernest Luckner a valuable interest in the land in question, depending in quantity on the question whether the property was originally the separate property of Ernest Luckner or. the community property of Luckner and his wife. But this question is not material here. By his deed the appellant became a tenant in common of the property with the wife of Luckner, and the rule in this state is that a tenant in common is entitled to the possession of the entire estate as against every person other than the cotenant, and may recover possession of the entire property when held by a stranger to the common title. Allen v. Higgins, 9 Wash. 446, 37 Pac. 671, 43 Am. St. 847.
The respondent argues that the deed through which the appellant derives title is not before the court, as it was rejected when offered and was not subsequently reintroduced. But the appellant is estopped to make this contention by reason of the finding of the court above quoted. No exception was taken to this finding, and it became binding upon both parties. Moreover the rejection of the deed when offered was conditional, and the appellant had the right to rely on the action of the court treating it as properly in
The judgment is reversed, and the cause remanded with instructions to enter a decree in favor of the appellant awarding him the possession of the property.
Rehearing
On Petition for Rehearing.
[Decided July 26, 1910.]
In a petition for a rehearing the respondent complains that the disposition of the foregoing case which this court has directed to be made will have the effect, unless modified, of denying him the right to present his defense to the appellant’s cause of action. Our attention is called to the fact that the judgment was rendered at the conclusion of the appellant’s evidence in chief — the court then deeming that the facts presented warranted a judgment for the respondent even though uncontroverted — and that he has had no opportunity to contest the validity of certain of the documents on which the appellant relied, and which the trial court deemed immaterial, but which this court thought sufficient to warrant a judgment for the appellant. The complaint we feel is just, and the order of the court will be that the judgment appealed from be reversed and the cause remanded for a new trial.