38 Wash. 15 | Wash. | 1905
In this action the appellant sought to recover possession of, and quiet his title to, block 6, of Lewis & Shaw’s Terrace Park Addition to the city of Spokane. The respondents defended on the ground, among others, that they had acquired title thereto- by virtue of Bal. Code, § 5503, which provides that,
“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.”
The trial court found that the respondent, Henry Howard, purchased the property at a mortgage foreclosure sale, had on May 1, 1894; that he received on that day a sheriff’s certificate, of sale of the property, and immediately entered into possession thereof; that he continued in such possession until July, 1896, when a sheriff’s deed of the property was issued to him, at which time he conveyed the property to the respondent Hollie Howard, and put her into the possession thereof; that she continued in such possession until the commencement of this action. The court further found that such possession was actual, open, and notorious, under claim and color of title, made in good faith, and that it had continued for more than seven years; and that the, defendants had paid all taxes
The appellant questions both the findings of fact made by the court, and the rule of law applied to the facts as found. As to the facts, the only point concerning which there could be any question is the character of the possession held by the respondents. But on this we thinlc the evidence abundantly supports the finding. While the respondents did not reside on this particular block, their possession was actual • in the sense that they exercised control and dominion over it. “By actual possession,” says Chief Justice Field, in Coryell v. Cain, 16 Cal. 567, “is meant a subjection to the will and dominion of the claimant, . . .” The respondent, Henry Howard, purchased at the mortgage sale a considerable tract of land, of which the block in dispute formed a part. When he took possession of his purchase, he took possession of the tract as a whole'. He could not be expected to actually reside on each integral part of the tract purchased.
The second contention is that the respondent did not enter under color of title. It is conceded that this court has held against this contention in Philadelphia Mtg. & Trust Co. v. Palmer, 32 Wash. 455, 73 Pac. 501, but it is insisted that that case is not sound in principle, and should be overruled. But, without following the appellant’s argument, we are not convinced that the case is wrong, as applied to- the statute above cited, and we decline to depart from it.
The judgment appealed from is affirmed.
