52 Wash. 246 | Wash. | 1909
Protection Island, upon which the land which is the subject of this controversy is situated, is an island in the Straits of Juan de Fuca, lying about two miles off the shores of Clallam county in front of, and a little to the west of, the entrance to Port Discovery Bay. At the time of the organization of Washington territory, Clallam county was a part of Jefferson county. The first territorial legislature undertook to create Clallam county out of Jefferson county, and division lines were sought to be established. Subsequent legislatures, commencing with the legislature of 1857-8, undertook by different acts to establish the boundary line between Clallam and Jefferson counties. The description of the northwest boundary line of Jefferson county was incorporated into the general description of the boundary of the two counties by the legislature of 1867 (Laws 1867, p. 45), and the legislature of 1869 again passed an act defining the county lines of several counties in the territory. The boundaries of Jefferson and Clallam counties were defined therein in the language of the act of 1867. The same language has been carried down through the different subsequent codifications of the statutes, and now reads as in the act of 1867.
The respondent’s title is deraigned from the original purchasers of the land, and the appellants claim title through a tax deed issued out of the superior court of Clallam county. For many years taxes were levied and collected on this land only by Jefferson county, but in 1891 Clallam county assessed part of Protection Island. In 1892 the island was assessed only in Jefferson county. From 1893 up to the present time the officials of Clallam county have assessed the island as a part of Clallam county. The taxes were paid by the owner of the land to Jefferson county only; a tax certificate of delinquency for the years 1893-4-5 against said tracts of land was foreclosed; judgment and order of sale were subsequently entered, and in accordance with such transactions the land was sold to Clallam county, and a deed
This action was brought to remove the cloud from respondent’s title. Appellants, defendants in the court below, objected to the admission of the testimony, and demurred to the complaint on the ground that it did not state a cause of action, and that the court had no. jurisdiction to try the cause. The demurrer being overruled, the appellants answered, setting up their title as acquired through Clallam county, and alleging that the land was duly assessed in Clallam county and was a part of Clallam county. The court granted a decree removing from respondent’s title the cloud cast thereon by the execution and record of the said deed of Clallam county in Jefferson county, and quieting the title of the respondent against the appellants and each of them, and all persons claiming under them or either of them. From this judgment this appeal is taken.
There are three principal contentions in this case: (1) That the court had no jurisdiction to proceed with the trial of the cause, for the reason that it was an attempt to annul the judgment of a court of the same power and jurisdiction as the court before which this action was brought; (2) that the plaintiff, being a national bank, had violated the laws of Congress in regard to holding real estate as security, and that its title to the land thereby failed; (3) that the court had no right to admit contemporaneous testimony to determine the boundary line, and generally that the testimony did not sustain the findings of the court.
As to the first proposition, it is not necessary to discuss the question whether the county of Clallam would be bound by a judgment in this case. It is alleged in the complaint that the respondent is the owner of the land, that the land
The second proposition of appellants has been set at rest by the supreme court of the United States in the case of National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188, where, after a review of the authorities, it was decided that, where a corporation was incompetent by its charter to take a title to real estate, a conveyance to it is not void but only voidable, that the sovereign alone can object, and that it is valid until assailed in a direct proceeding instituted for that purpose; the court citing Sedgwick, Statutory & Const. Constr., §73:
“Where it is a simple question of authority to contract, arising either on a question of regularity of organization or of power conferred by the charter, a party who has had the benefit of the agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains.”
This case was followed by National Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443, where the court says that the question presented is not an open one in that court, since the determination of the case of National Bank v. Matthews at the October term, 1878. To the same effect is Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733. In fact, this is the universal authority on the subject, and the cases cited cannot be distinguished from the case at bar.
The court, upon the trial of this cause, found that the different laws upon the subject of the division of the counties was so doubtful that it could not be ascertained with certainty just where the boundary was intended to be located, and for that reason admitted the contemporaneous testimony complained of. From an examination of these different acts
“It would seem that no higher and better evidence could be offered than that of the assumptive and continuous exercise of jurisdiction over the territory by one county for many years, extending' back beyond the memory of living witnesses, and which jurisdiction was acquiesced in by the citizens of both counties to a comparatively recent time, . . . the recordation of ancient deeds and conveyances of land situate in the disputed territory in a particular county, and ancient records of tax assessments showing that the property was assessed for taxes for a particular county, and like facts tending to show assumption and exercise of jurisdiction and acquiescence therein by the citizens, are relevant and competent facts in evidence.”
This text is sustained by the overwhelming weight of authority. Among the most pertinent cases see: Edwards County v. White County, 85 Ill. 390; Hecker v. Sterling, 36 Pa. St. 423.
One John M. Powers, who owned the island from 1871 to 1874, testified that so long as he owned the island he was assessed by, and paid taxes to, Jefferson county. John F. Tukey, who had lived on Port Discovery since 1853 and who was a member of the board of county commissioners of Jefferson county in the 60’s, testified that the island was always assessed by Jefferson county. In 1860 the Jefferson county commissioners defined the Port Discovery road district, which included specifically, by government subdivision, the land embraced in Protection Island. In November, 1862, a petition was presented by ten citizens of Jefferson county to set Protection Island off into a separate road district, which petition was granted, and one Buffington who lived on the island was appointed road supervisor. In 1868 the Jefferson county commissioners included the island in road district No. 1, and in June, 1868, the island was made a voting precinct, and was so continued for several years after that. The uncontradicted testimony of the residents of the island was, that they voted in Jefferson county; that one Buffington, while residing on Protection Island, ran for county office in Jefferson county, and the county commissioners’ records show that the canvass of votes for sheriff in 1864 set forth that Buffington received one hundred and fifteen votes for that office. In fact, without further specifying, the testimony is overwhelming to the effect that the jurisdiction of Jefferson county over the island is absolutely unquestioned, both by the organized authorities of the county and by the residents of the island. Under such a state of facts we think the court was amply justified in reaching the conclusion that the island was a part of Jefferson county.
The judgment will be affirmed.
Fullerton, Chadwick, Mount, Crow, and Gose, JJ., concur.