Kenyon v. Knipe

2 Wash. Terr. 422 | Wash. Terr. | 1885

Opinion by

Turner, Associate Justice.

This action was brought by the appellant in the Court below* to abate an alleged nuisance erected and maintained by the appellees on the frontage to property of the appellant, known as Lots 6 and 7 in Block “B,” in A. A. Denny’s Addition to Seattle* which property abuts on the waters of Elliott’s Bay, an arm of the sea. Said Lots 6 and 7 abut on and extend below the line-of high tide, and the wharf and other structures alleged to be-a nuisance are erected between the line of low tide and deep water, directly in front of said Lots 6 and 7.

The appellees denied the material allegations of the complaint, and pleaded several affirmative defenses ; and to the affirmative defenses the appellant replied.

After hearing, the judgment of the Court below was for theappellees, and the cause is brought to this Court by appeal.

Upon the trial below, the appellant offered in evidence, to-prove his title to the property in dispute, a deed from A. A. Denny and wife, executed in 1867. Objection was made to the-introduction of this deed in evidence, because the acknowledgment of the deed made before the Auditor of King County, was not authenticated by the official seal of that officer. The Court sustained the objection, and the deed was rejected. To this ruling the appellant excepted, and his exception was allowed.

Without deciding whether a deed acknowledged before the auditor of a county, and not authenticated by his official seal, is void, we hold that the defect in the acknowledgment of this deed, if there was any defect, was cured by the act of the Territorial Legislature approved Nov. 10th, 1873, entitled “ An Act Curing Defective Acknowledgments.” (Laws of Washington, 1874, p. 481.)

We think the cause must be returned to the lower Court for this error. The most important questions presented by the affirmative defenses hinge upon the recitals of the deed which was excluded from the evidence; and as to all of the questions, we doubt whether this initial error did not operate to prevent a full and fair investigation in the Court below.

The judgment of the Court below is reversed, and the cause remanded for further proceedings.

We concur: S. C. Wing-ard, Associate Justice.

John P. Hoyt, Associate Justice.