10 Wash. 195 | Wash. | 1894
The opinion of the court was delivered by
The plaintiff appeals from an order setting aside a verdict which he had obtained in an action brought to recover the possession of certain real estate. The facts relating thereto are set forth in State ex rel. Dooly v. Superior Court, ante, p. 168.
While a number of jurisdictional questions have been urged by the respondents to sustain the action of the lower court in setting aside the verdict, we are of the opinion that none of them are involved in this case. It is true that ordinarily a sale of lands under said § 1005, Code Proc., will only operate to convey the interest of the estate therein. The sale in such case will be subject to the mortgage. And while the petition to redeem the lands, which might have resulted in a sale under §§ 1035-37, could not have been filed after the year had elapsed within which to present claims, we are of the opinion that a later presentation and a sale thereunder, if the same is consented to by all the parties in interest, will be valid. There is also, in said last proceeding, some uncertainty as to how the mortgagee is to be made a party thereto, where the petition to redeem is made by another party. Of course, he must be brought in in some manner in order to conclude his interest. It is the well-settled law of this state that the administration of an estate is a proceeding in rem, and the court in this proceeding unquestionably had jurisdiction over the lands in controversy, and had power to order the same sold.
Consequently, it follows that the action of the lower court in setting aside the verdict obtained by the appellant cannot be sustained. Said action is set aside, and the cause remanded with instructions to enter a judgment on the verdict for the plaintiff.
Dunbar, C. J., and Hoyt, Anders and Stiles, JJ., concur.