50 Wash. 689 | Wash. | 1908
This is an action in ejectment, brought by the appellant Hamilton against the defendants. The defendants moved for a bond for costs, which was given, with appellants Henderson and Harris as sureties thereon. The cause was tried upon an agreed statement of facts, the essential facts being as follows: On March 9, 1877, the plaintiff’s father and mother resided in Thurston county, Washington Territory, and they were then the owners in fee simple, by title deducible of record from the United States, of certain real estate, situate in Chehalis county, Washington, described as the east half of the southeast quarter of section 33, and the west half of the southwest quarter of section 34, all in township 18, north, range 6 west of the Willamette Meridian. On said day, still owning the land as aforesaid, the plaintiff’s father died intestate, leaving surviving him as his sole heirs at law his widow and three minor children of whom the plaintiff was one, he having been born May 18, 1876. Thereafter the estate of plaintiff’s father was administered in the probate court of Thurston county, which court had full jurisdiction, and in the administration proceedings an order of distribution was made on the 24th day of April, 1882, whereby an undivided one-half of the aforesaid land was distributed to the widow and one-sixth to each of the three minor children. Some time prior to the decree of distribution, the widow and minor children moved from Thurston county, and established their residence upon the said land in Chehalis county, and continued to live there until dispossessed by one Axford as hereinafter stated.
Subsequent to the decree of distribution, certain proceedings were had in the probate court of Chehalis county, whereby the mother of the minor children was appointed their guardian. In the meantime the mother' had remarried, and her appointment and qualification as guardian was under the name of Sarah J. Morton. As guardian she filed an inventory showing her three wards to be the owners of an undivided
From the above facts the court concluded that, at all times since September 30, 1882, the defendants or their grantors have been in the adverse possession of the land, claiming in good faith to be its owners, and that said possession at all times has been and still is under claim of right and color of
This suit was commenced May 6, 1907, which was twelve days before the expiration of ten years following the date that the appellant attained his majority. It is therefore claimed that the action is not barred by the general ten-year statute of limitations,- for the reason that it was brought within ten years from the time of the removal of the appellant’s disability, in accordance with Bal. Code, § 4809 (P. C. § 293). We have, however, nothing to do with the ten-year statute, if respondents are entitled to the benefits of Bal. Code, § 5503 (P. C. § 1660). That section is as follows:
“Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.”
It is admitted by appellant that, if respondents’ possession and that of their grantors has been and is under claim and color of title in good faith, then the judgment is right. It is, however, contended that the facts do not show the existence of color of title in favor of respondents and their grantors. It is argued that the court proceedings in Chehalis county show that the guardian’s deed to respondents’ grantor, was void, and that it did not for that reason constitute color of title. The record, it is true, shows a rather singular admix
“A deed executed under and by virtue of a judgment or decree gives color of title, although such judgment or decree is voidable or absolutely void. As a general rule, deeds executed in pursuance of a sale give color of title, although the sale be irregular or void.”
In support of the above statement citations are made referring to the decisions of twenty-two states, and also to decisions of the United States supreme court and other Federal cases. With reference to the policy and reasons for this rule the supreme court of the United States in Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228, said:
“Statutes of limitation are founded on sound policy. They are statutes of repose and should not be evaded by a forced construction. . . . Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence color of title, even*695 under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and of course, adversely to all the world.”
Judge Dillon gave expression to the same view in Miller v. Sullivan, 4 Dillon (U. S.) 340, as follows:
“This is a wise statute, doubly wise in a new country, for reasons which fully appear in this case. It would be robbed of its virtue if it was confined to cases where the sale was valid, for such sales do not need the protection of such a statute. ‘They that are whole need no physician.’ ”
This court expressed the same view long ago and held that a void tax deed constitutes color of title as the basis for the running of the statute of limitations. Ward v. Higgins, 7 Wash. 617, 32 Pac. 740, 1015, 36 Pac. 285. It was there said:
“We are aware that there are cases holding that a void tax deed will not constitute a basis for the running of' the statute of limitations. But we think such decisions overlook both the philosophy and the object of such statutes. Statutes of limitation are strictly statutes of repose, and the policy upon which they are founded is, that a reasonable lapse of time shall put an end to legal strife and controversy, and that he who neglects or refuses to assert his rights within such a time as the legislature may deem reasonable shall be conclusively presumed to have waived them. If it is necessary for one claiming the benefit and protection of the statute to ■ first prove a perfect and indefeasible title, it is impossible to perceive for what purpose such statutes are enacted. A perfect title needs no extraneous aid, and if imperfect ones are not within the purview of the statute, then the law, in either case, is entirely ineffectual and useless, and might well be eliminated from the body of statutes.”
The supreme court, of the United States recognized such to be the rule in this state in its decision in Dibble v. Bellingham Bay Land Co., 163 U. S. 63, 16 Sup. Ct. 939, 41 L. Ed. 72. In Illinois where a statute similar to our seven-year statute exists, it is held that where one pays the taxes for seven years and in good faith holds possession under even a void deed,
In view of the foregoing authorities, it must be held here that the guardian’s deed in the case at bar, even though it may have been void, became color of title within the meaning of our statute. Possession was taken under it in good faith under a claim of right and of title, and that possession was maintained and the taxes paid by respondents and their grantors from year to year, continuously for about twenty-five years before this suit was brought. This constituted ownership in respondents under § 5503, supra, to the extent and according to the purport of their paper title. Their paper title purports to be a fee simple one, and their ownership is accordingly.
Appellants urge that the court erred in denying their motion to retax certain costs. In preparing for the trial, respondents obtained certified copies of deeds and other records to be used in evidence. Before the trial, however, a stipulation was made as to the facts, the facts shown by the copies
Appellants Henderson and Harris have appealed for the reason that judgment for costs was entered against them as sureties on the cost bond. Respondents concede that this was error, but maintain that the question cannot be raised here for the reason that it was not raised below by motion to retax, and for the further reason that the amount is below $200. The question did not arise until the entry of judgment, and under Bal. Code, § 5051 (P. C. § 668), it is not necessary to except to the judgment itself. See, also, Woodhurst v. Cramer, 29 Wash. 40, 69 Pac. 501. With reference to the amount involved, we think the $200 limitation does not govern here. This is not an action at law for the recovery of money or personal property where the original amount in controversy or the value of the property-does not exceed $200. The judgment for costs against the sureties being admittedly wrong, must therefore be reversed, and the appellants Henderson and Harris are entitled to recover their necessary costs on the appeal. The judgment against appellant Hamilton is in all respects affirmed.
Rudkin, Mount, Dunbar, and Crow, JJ., concur.
Fullerton and Root, JJ., took no part.