29 Wash. 108 | Wash. | 1902
The opinion of the court was delivered by
This was an action in the nature of a bill in equity to' remove, a cloud from and quiet title to certain real property. The action was commenced January 20, 1900. In her complaint the respondent alleged, in substance, that she acquired the. property described therein under and by virtue of a contract entered into' with the defendants Lee and wife, by the terms of which the Lees agreed to convey the property to' her by a good and sufficient warranty deed upon the payment of the consideration named in the contract.; that she paid to the Lees the purchase, price agreed upon, whereupon they deeded the
On the trial of the cause it developed that the respondent was not in possession of thei property at the time of the commencement of the action, either by herself or by tenant, but that, the person she claimed to be her tenant had been ejected from the property in October’, 1899, — some three months, prior to the time the action was commenced,— and that the son-in-law of Noble was in possession, holding by permission of Noble adverse to the respondent under the contract of sale entered into between Thomas and Noble. When these facts appeared the appellants moved for judgment in their favor. This motion was denied by the trial judge, and he afterwards made findings of fact and conclusions of law to the effect that the respondent was the owner and entitled to the possession of the premises, that the several deeds mentioned and the contract between Thomas and Noble were clouds upon respondent’s title, and entered a judgment and decree, adjudging her to be the owner of the property, cancelling the deeds and contract, and awarding her possession of the property.
The appellants contend that under the statutes of this state a claimant of real property, out of possession, cannot maintain an action in the nature of a suit in equity to quiet and remove a cloud from title; that such an action can be maintained only by one in possession; that the remedy of a party out of possession is to bring an action to recover possession, in which his title may be quieted, and clouds therefrom be removed, if the nature of the case and the
In so far as the late territorial court, and this court has had occasion to pass upon these statutes, it has given them the construction we now put upon them. In Smith v. Wingard, 3 Wash. T. 291 (13 Pac. 717), Mr. Justice Turner, speaking of these statutes, said:
*114 “It is contrary to the course of the common law to permit litigation about an abstraction. The judgment of courts of common law are usually something, more than mere declarations of rights, and it is a distinguishing feature of such judgments that they are capable of enforcement by execution in some form.
‘ While the primary object of the law as we find it in 'this chapter is to determine the question of title to the land, that question is to arise, we think, in litigation about the possession of the land. ■ The action therein contemplated is the common-law action of ejectment, with the added incident of determining in the action the paramount, legal, or equitable title, and with the departure of permitting the action to be brought against one not in possession, but who claims title to or interest in the land. Its chief virtue is, that it makes the determination of title res adjudicator.”
In Catholic Bishop of Nesqually v. Gibbon, 1 Wash. 592 (21 Pac. 315), it was said by Lakukfokd, J., that the remedy by one out of possession of land desiring to test his claim of title thereto was by an action to recover possession under these statutes. So this court in Spithill v. Jones, 3 Wash. 290 (28 Pac. 531), held that the trial court rightly dismissed an action to, quiet title when it appeared from the evidence on the trial that the plaintiff was not in possession; saying in the course of the opinion,
“To hold a contrary doctrine would be to 'allow this form of action to be substituted in every case for an action of ejectment, and the defendant in possession of the property be deprived of his constitutional right to a trial by jury.”
To¡ the same effect is Reichenbach v. Washington, etc., Ry. Co., 10 Wash. 357 (38 Pac. 1126). See; also; Krutz v. Isaacs, 25 Wash. 566 (66 Pac. 141).
The trial court held, however, and it is urged here, that the appellants waived their right to object to the
The judgment is reversed, and the cause remanded to enter a judgment to the effect that the respondent take nothing by her action, and that the appall anta recover their costs.
Beavis, O. J., and Anders, Mount, IIadley and Dunbar, JJ., concur.