Smith v. Wingard

3 Wash. Terr. 291 | Wash. Terr. | 1887

Mr. Justice Turner

delivered the opinion of the court.

The appellee was in possession of a certain tract of land in Pierce County, in this territory, and claimed to be the owner of the same in fee-simple. He commenced suit in the proper court of said county against the appellant, and in his complaint averred in detail the following general facts, namely: his title, his possession of the land, the existence of a quitclaim deed to the land made by a former owner to the appellant, the record of :said deed, and a claim by appellant of title to the land thereunder. In his prayer for relief he asks judgment that “ plaintiff is the owner in fee-simple of the said .sixty-four acres of land, and every part thereof, and entitled to the possession thereof, and for the recovery of said land as against the wrongful claim of said defendant,” etc.

It was assumed by both sides in the lower court that the action was one at law, brought under chapter 46 ■of the Code, and the case was conducted to judgment on that theory. The facts were determined by a jury. Counsel for the parties in this court appear to be still of the same mind, and have insisted strenuously that the case is one at law, notwithstanding an intimation to the contrary thrown out by the court in determining a motion preliminary to the hearing. In view of this, we should not mar the pleasing concord of the parties but for the-fact that it is essential to pass on the real nature of the-action in determining the only question which remains in the case. That question arises on the action of the-court below overruling the demurrer to the complaint.

Appellant assumes that the action is one which can be brought under chapter 46 of the Code only, and contends that the complaint is fatally defective because it shows that this plaintiff is in possession of the property. We agree with the view that an action cannot be maintained-under that chapter by one in possession of real property against another to determine and decide title. Almost every section of the chapter bears internal evidence of the correctness of that view. . The more energetic are the following: Section 536, which declares who may bring the action, and what the plaintiff may recover, namely, “Any person having a valid and subsisting interest in real property, and a right to the possession thereof, may recover the same,” etc. Why couple the-title and the right to possession if the former alone was to be deemed sufficient to authorize suit? Why give the plaintiff the right to recover the possession of that which he already possesses? Section 537, which makes the provision usual in such statutes, for suing the tenant in possession, and afterwards substituting the landlord, thus-showing that the right to recover possession is an important purpose of the action. Section 538, which requires that “the property be described with such certainty as to enable the possession thereof to be delivered if a recovery be had.” Section 540, which prescribes two forms of verdict in the action to be used accordingly as the jury find for the plaintiff or defendant; iii both of which the right of plaintiff to possession is passed on, while in neither of the forms is the right of the defendant to possession found. Section 541, which provides. for damages to plaintiff for withholding the property, while nowhere is there any provision allowing damages to the defendant should he recover. Section 549, which provides that the judgment rendered “ shall be conclusive as to the estate in such property and the right to the possession thereof.” Section 550, which provides what shall be done if the plaintiff shall have taken possession of the property and the judgment be afterwards set aside. The appellee bases his view of this chapter mainly on the last clause of section 536, which provides that if there be no tenant in possession of the land, the action shall be brought “against the person claiming the title or some interest therein.” But it in no way proves or tends to prove that the action may be brought by one in possession to prove that it may be brought against one out of possession. And this is an answer to the case in 2 "Wall. 328, and other cases called to our attention, in which it has been decided, under similar statutes, that the action may be maintained against one not in possession. It may be correct to say that the primary object of the chapter is not to recover possession, but to determine the question of title to the property. Such, in effect, was the language of the Supreme Court of the United States, with reference to the statute of Virginia, in deciding the case in 2 Wall. 328. In that case, however, the plaintiff was not in possession, and the sole question which the court had in mind was. the propriety of making one not in possession a party defendant.

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. This is not to say that the legislature cannot enlarge the subject-matter over which such courts take jurisdiction and their methods of procedure, but it is a valid consideration to bear in mind when determining whether the legislature has actually done so.

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 adjudícala. The same result was obtained at common law by the action of trespass to try title, as it was called. It follows that this complaint would be insufficient if it were to be measured by chapter 46 of the Oode alone. The facts averred, however, whatever the view of the plaintiff or his counsel in bringing the suit, make a perfect and complete case for a court of equity under chapter 47, section 551, of the Code. The last subdivision of section 551, omitting parenthetical clauses, reads as follows: “Any person in possession, by himself or his tenant, of real property, and any private or municipal corporation in possession by itself or tenant of any real property, .... may maintain a civil action against any person or persons, corporations or associations, claiming an interest in said real property, or any part thereof, or any right thereto adverse to him, them, or it, for the purpose of determining such claim, estate, or interest,” etc. It is unnecessary to argue that the rights here created and the jurisdiction here conferred are strictly equitable in character. It has been so held by the Supreme Court of the United States in several similar cases. (Holland v. Challen, 110 U. S. 25; Reynolds v. Crawfordsville Bank, 112 U. S. 405.) The complaint, therefore, states a good cause of action, and the demurrer was properly overruled. The appellant has not contended that he was injured by the course pursued in the trial of the case below. He could not well do so, as he contended both there and here that such was the only proper course.

There being no error in the record, the judgment of the lower court is affirmed.

Greene, C. J., and Langford, J., concurred.