7 Wash. 33 | Wash. | 1893
The opinion of the court was delivered by
This is an appeal from a judgment of dismissal rendered in a partition suit, commenced as a suit in equity. The judge sitting for the hearing of equity causes heard the testimony of the parties until each had rested, and then finding that the cause involved the determination of facts concerning the title which were proper to be submitted to a jury, instead of calling a jury himself, made an order transferring the case to another department of the same court, where in the orderly disposition of the
Upon this appeal from that judgment, the first point made is by the respondents upon their motion to strike the statements of facts, of which there are two. Each of the judges has certified to a statement as containing all the facts, etc., in the case before him, but, of coiirse, not as containing any facts occurring before his associate, and the argument made in favor of the motion is two-edged, for it is urged that inasmuch as neither judge has certified to all the facts, there is no complete statement certified by either, and therefore no statement upon which the court can review the case.
Neither party took the position exactly, but it seems to us that the simplest way out of the matter will be to entirely ignore the statement concerning the jury trial. There was but one legal trial, and that was the one before the equity judge, the proceeding taken to place the case before a jury having been entirely irregular and unwarranted insofar as it attempted to transfer the case to a department presided over by another judge. We would not be here understood as holding that the judges, in counties having
2. The complaint shows on the face of it that the respondents had been since 1883 in possession of the land sought to be partitioned under a conveyance of the whole tract from the father of the appellant, who claimed a half interest as sole heir of his mother, deceased in 1883 before the conveyance. These facts, respondents claim, precluded any suit for partition until there had been an action at law to try title. Our statute, Code Proc., §577, provides: “When several persons hold and are in possession, of real property as tenants in common ’ ’ there may be a partition, and the common law-rule is well settled that where the party seeking partition has been ousted of possession by his alleged tenant in common under a claim of adverse title to the whole estate, equity will not determine the legal rights of the parties. Freeman on Cotenancy, § 447.
Where the pleadings of the defendant disclosed the adverse claim, the practice was to stay the partition proceeding until the plaintiff got his judgment for possession at law (Brown v. Cranberry Iron & Coal Co., 40 Fed. Rep.
“In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible. Wherever the question has recently arisen as a new question, the answer to which the courts were free to give without consulting decisions made at an early day when the common law rules were more potent than at present, it has been resolved in favor of taking jurisdiction whenever the complainant shows himself seized of the requisite title, whether the lands sought to be partitioned are held adversely to him or not.”
This new practice has long been in vogue in California, where Bollo v. Navarro, 33 Cal. 459, and Martin v.Walker, 58 Cal. 590, were decided, and it would seem to be the only rational practice under a code, especially when our Code Proc., § 583, is considered, that section providing as follows:
'' The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined in such suit. ’ ’
This law exists in California, and the court, in Martin v. Walker, alludes to it as an additional reason for its ruling confirming many preceding cases on the same subject.
3. It was not necessary to allege that there was necessity for a sale in lieu of partition, or that partition could not be made without great prejudice to the owners. Code Proc., § 584, provides that, if such a state of facts appears from the evidence, without allegations in the complaint, a sale may be ordered.
6. The land in controversy was acquired in 1871, being conveyed to the husband by deed of purchase. The act of 1869, “defining the rights of husband and wife,” declared that property acquired' by either husband or wife, except that acquired by gift, bequest, devise or descent, should be ‘ ‘ common property. ’ ’ Sec. 2. It also provided that the husband should have the same absolute power of disposal of the common property as he had of his separate estate. Sec. 9. Respondents maintain that this power to dispose was a vested right in the husband, which could not be taken away by any subsequent statute. But it is not necessary to decide this point. The act of 1869 having-declared certain property “common property,” did not make provision for the disposal of such property upon the
6. Whatever objections may have been well founded as against the sufficiency of the reply are obviated by the fact that this was an equity cause, and that upon the trial the respondents wholly failed to substantiate the allegations of their answer, which they claim were not met by the reply.
7. Appellant produced the deed to his father which showed on its face a conveyance of land for a valuable consideration, and prima facie the land conveyed was common property. Yesler v. Hochstettler, 4 Wash. 349 (30 Pac. Rep. 398).
The burden, then, was upon respondents .to show that the money paid for the land was the separate property of John S. Hill. The Hills were married in 1859, at which time the husband owned one-third of a small steamboat, worth about §2,000. In 1860 the interest in the steamer was exchanged for 50,000 feet of lumber, worth about §1,250. The lumber was sold, and §800 of the money
Under every consideration of the law, such a state of facts left it entirely uncertain whether the property which Captain Hill owned before marriage had anything to do with earning him anything in 1871, and the presumption of the deed was undisturbed.
Upon the whole case, therefore, we are of opinion that the court erred in dismissing the action, and that the cause should be remanded for an interlocutory judgment establishing appellant’s title to an undivided one-half of the tract in question, and his right of possession as tenant in common with the respondents, and for further proceedings in the matter of the partition. So ordered.
Hoyt, Scott and Anders, JJ., concur.
Dunbar, O. J., concurs in the result.