8 Wash. 1 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— This action was brought to quiet title to a quarter section of land in Kitsap county, which, on the
On the 24th day of October, 1882, said Cadwell procured a decree of divorce from his said wife, annulling the bonds of matrimony theretofore existing between them. No property was brought before the court in this action, and no attempt was made to dispose of the property rights of the parties in any way in the decree which was therein rendered.
September 30,1891, said Cadwell executed another deed purporting to convey said land to one Ella White Peterson, and on October 7,1891, said Ella White Peterson, by deed, attempted to convey the same to appellant Bemis. This action was begun November 11, 1891. Neither of appellants have ever been in possession of said land, and it was at all times unoccupied. The respondent exercised acts of ownership thereover in looking after the timber to prevent its destruction, and paid the taxes assessed against the same from year to year. A trial was had, and the court below found in favor of the respondent.
It is contended by appellants that the land in question was community property at the time it was acquired by
By § 2 of the act in question the applicant is required to file a statement in writing and sworn to, containing the following, viz.:
“That deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself.5 5
The practice is to allow the husband and wife each to make an entry of one hundred and sixty acres of land under the provisions of this act in this state, and this can only be done upon the ground that land so acquired is the exclusive individual property of the person acquiring it. We know of no case where the point in question has been decided, but in the light of the provision of the act itself, and the practice of the government in allowing husband and wife to each make application under the act, sufficient authority is afforded, in our opinion, for holding that land so
There is little or no proof as to whether the money used by Cad well in paying for it was community property. There is some evidence tending to establish this, and also an attempt to prove the contrary, but admitting that the money so used was the property of the community, the situation would not be altered as to the ownership of the legal title to the land. As to whether the wife, on a showing that’ community money was used in the purchase thereof, could follow the same and obtain any rights in the land, we are not called upon to decide. Such an attempt would have to be made without unreasonable delay, and if sufficient appears in this case to establish such equitable claim upon the part of appellant Gardner, she would be estopped by reason of her delay in the premises from undertaking to affect the title thereto in the respondent. Appellant Bemis was not a bona fide purchaser without notice.
It is further contended that the court erred in allowing the original deed from Cadwell to the respondent to be received in evidence. It is contended by appellants that said deed was not acknowledged, and the record thereof fails to show any acknowledgment. The deed itself, when introduced, purported to have been regularly acknowledged before a notary public, and contains the certificate, signature and seal of such notary.
It is contended by the respondent that the certificate of acknowledgment is prima facie proof of the facts required to be recited therein, and this being true, no further proof of execution was necessary to render the deed admissible in evidence. Our statutes providing for the execution and acknowledgment of deeds name the officers before whom acknowledgments can be taken; and set forth the form of
Section 1436, relating to acknowledgments taken without the state, provides that the certificate of acknowledgment shall be prima facie evidence of the facts therein recited. It cannot be supposed that the legislature intended to give greater force and effect to acknowledgments taken without the state than to those taken by like officers within the state. Furthermore, it is provided that a certified copy of a deed duly recorded shall be admitted in evidence, without further proof of execution. Gen. Stat., §209; Code Proc., §1685. We do not think the legislature meant to give to a certified copy any greater legal sanctity than could be given to the original document itself. Under the contention of appellants, the respondent had only to have its deed re-recorded if the original record thereof was incorrect, and then obtain a certified copy of such record, to have obviated the objections raised against it. We are of the opinion that the deed was properly admitted in evidence.
Affirmed.
Hoyt and Stiles, JJ., concur.
Anders, J., not sitting.
Dissenting Opinion
(dissenting). — I am unable to agree with my brothers in the disposition of this case. I do not think that property rights of citizens of this state can be affected by any construction which departmental officers place upon the laws of congress. What is community property and what is separate property are questions which must be settled by a judicial construction of our own statutes enacted on that subject. Although I do not think it necessarily is implied by the action of the department in