57 Wash. 276 | Wash. | 1910
This ivas an action of ejectment to recover possession of certain real property in Pierce county, and to quiet title thereto against the claims and demands of the
Long after the conveyance from the Northern Pacific Railroad Company to the Tacoma Land Company,, the secretary of the interior held that this particular land was excepted from the grant to the railroad company, by reason of a preemption filing made by one Martindale in the year 1869, and the railroad selection was thereupon cancelled. Thereafter, and on the first day of April, 1899, the United States
Many errors are assigned in the appellant’s brief on rulings made by the court during the progress of the trial in respect to the pleadings, but in the argument before' this court all such assignments were waived, and the appellant based his right to a reversal on the refusal of the court to direct a nonsuit at the close of the respondents’ testimony. One of the grounds urged in support of the nonsuit was the failure of the respondents to prove that the appellant was in possession of the land at the time of the commencement of the action. If we assume that there was a failure of proof, •and that such failure was fatal to the respondents’ right of recovery, the defect was supplied by the appellant, who testified in his own behalf that he was then in possession and had been for several years previously.
The only remaining question is the sufficiency of the respondents’ proof of title. Rem. & Bal. Code, § 8765, provides as follows:
“Whenever any person or persons having sold and conveyed by deed any lands in this state, and who, at the time of such conveyance, had no title to such land, and any person or persons who may hereafter sell and convey by deed any lands .in this state, and who shall not at the time of such sale and conveyance have the title to such land, shall acquire a title to such lands so sold and conveyed, such title shall inure to the benefit of the purchasers or conveyee or conveyees of such land to whom such deed was executed and delivered, and to his or their heirs and assigns forever. And the title to such land so sold and conveyed shall pass to and vest in the conveyee or conveyees of such lands, and to his or their heirs and assigns, and shall thereafter run with such land.”
This rule prevails generally, independent of statute. 2 Devlin, Deeds (2d ed.), § 944 et seq. A title obtained
We will now refer briefly to the reasons assigned by the appellant why the rule should not obtain in this case. It is first contended that there was no proof that process was served on the defendants in the foreclosure action, or that the court had jurisdiction of the parties. This objection is not open to the appellant at this time. He stipulated that a mortgage was given, that a judgment of foreclosure was entered, that a sale was made by the sheriff and a deed executed, and this stipulation carried with it the implication that all such proceedings were regular and legal. If he desired to object to the jurisdiction of the court to enter the judgment, he should have raised that question at the proper time and in the proper forum. A party will not be permitted to stipulate that a judgment was rendered and thereafter question the jurisdiction of the court to render it, unless he expressly reserves that question.
It is next contended that the United States was not a party to the foreclosure, that the mortgagors had no title, and that by reason of these facts the foreclosure was void. We apprehend a deed is always void, or at least ineffectual, where the grantor has no title at the time of its execution, but this is no obj ection to the application of the rule that an after-acquired title passes by estoppel. Indeed, the rule could have little or no application if the contention of the appellant is sound.
It is lastly contended that there is no proof that the holder of the railroad title, at the time of the issuance of the patent to the Tacoma Land Company, was a citizen of the United States, or had declared her intention to becoming such. The respondents are not claiming that the patent issued to the wrong person, or that the original patentee holds the title in trust for them by reason of that fact. If they were, it
We are therefore of opinion that respondents established a clear title to the property in controversy, and that the judgment of the court below should be affirmed. It is so ordered.
Fullerton, Chadwick, Gose, and Morris, JJ., concur.