57 Wash. 324 | Wash. | 1910
It is difficult to make a condensed statement of this case; but, as nearly as we can gather its history from the somewhat confused record which is presented, the controversy is over the disposition of certain real property involved in a divorce proceeding between Anna Merz and her
As we view it, the material, allegation of the complaint is that the decree in the lien foreclosure cases and the sale thereunder were void, so far as the plaintiffs are concerned, for the reason that the court did not acquire jurisdiction of the plaintiffs or their interest in said property, by the service of summons and complaint, as required by law. Some other objections were made to the lien notices, but it is not contended that they were jurisdictional, and of course they were cured by the judgment, even conceding — which we do not — that they were in any way objectionable. The prayer of the complaint was, that the deeds aforesaid be declared void; that the title to the one-half interest be confirmed in the plaintiffs, and that the plaintiffs have judgment for an accounting and partition and division of the premises, or in
The respondents insist that the only and real question involved herein is whether a litigant in a divorce case can secure the awarding to her of certain property by making promises to the trial court to give her minor children half of either the property or the proceeds thereof, and after securing the possession of the same and appropriating the entire income as long as possible, manipulate matters so as to deprive the minor children of their entire interest in the property in bold and open fraud of the court. That might he a real question in a case properly brought by heirs against the mother, but certainly the real question in this case is, what are the rights of the purchasers at the foreclosure sale,.or of their grantees. Passing the consideration of the demurrer interposed to the complaint, for the reason that it will probably expedite the final adjustment of the trouble involved by deciding the case upon the merits, the whole contention that the same was void is based upon the finding that in the foreclosure suit the signature of Benson, the guardian, who accepted service upon the back of the summons and complaint, was not proven to be genuine and that there was no other service made upon the minor heirs, and that service upon Benson was not sufficient in any event. It must be borne in mind that, under the terms of the deed to Benson as trustee without any limitations, he was constituted a trustee of an express trust. The legal title to the land conveyed was in him, and under the express provisions of our statute, Rem. & Bal. Code, § 180, he is authorized to sue without joining the
But, conceding him to be a proper person to make service upon, the contention is that, while he accepted service on the back of the summons, there was no proof of the genuineness of his signature; and Downs v. Board of Directors School Dist. No. 1, 4 Wash. 309, 30 Pac. 147, is relied on to sustain the contention that such proof was necessary to give the court jurisdiction. But that was where the case came up on appeal from the refusal of the court to enter the judgment demanded, the court holding that there had been no proof of service. But this is a collateral attack upon a judgment, collateral at least in the sense that the judgment is attacked in a separate action and not on appeal, and therefore such judgment imports verity. This rule is so well established in this jurisdiction that the citation of authorities is not called for. It is doubtless true that, even in such a case, the right to assail the verity of a judgment by an affirmative showing that the service was not actually made is still available, the burden of proof being upon the party alleging the invalidity of the judgment. But there is a wide difference between an attempt to prove that no service had been made and an attempt to prove that there had not been proper proof of such service. That was all that was attempted in this case, and such proof would not be admissible, under the authorities, for the purpose of overcoming the verity which the judgment imports. In fact, in this case the court found the essential thing, viz., that the service of the summons and complaint was actually made upon E. B. Benson, guardian of the estate of said minors, by having the said E. B. Benson accept service of same upon the back thereof in writing, but further found that no affidavit of the service of the summons and complaint upon the said Benson had been filed in said cause. So that
But the title to the one-half interest in lot 12 is not involved in any foreclosure proceeding, and we are not impressed with the contention of the mother, Anna Merz, that she was in duress when she made the trust deed to Benson of the one-half interest in lot 12, or that she was so ignorant of her rights in the premises that the deed was induced by fraud. So far as the title to the one-half interest in lot 12 is concerned, it will remain in the respondents. This division of the property will necessitate an accounting to determine what portion of the rents and profits the respondents are entitled to. There are not sufficient data in the record upon which this court can intelligently base a judgment upon that question.
The judgment will be reversed, and the cause remanded with instructions to determine the just proportion of the rents and profits due the heirs, and to enter judgment accordingly. The appellants will recover costs in this court.
Rudkin, C. J., Parker, Mount, and Crow, JJ., concur.