1 Wash. 183 | Wash. | 1890
The opinion of the court was delivered by
This action was brought by appellant in the district court of the Second judicial district of Washington Territory, holding terms at Tacoma, in Pierce county, to quiet the title to certain land in that county described in the complaint, and to set aside a tax deed made by the sheriff of Pierce county to the defendant, Joseph Klee, and also to set aside a quitclaim deed from the defendant Klee to defendant Joseph Miller, for the reason that they are fraudulent and void, and are a cloud upon the title of plain
The only law in our statutes, on the subject of escheats, is contained in § 3302, sub. 8 of the code, which is as follows : “If the decedent leaves no husband, wife or kindred, the estate escheats to the territory for the support of common schools in the county in which the decedent resided during his lifetime or where the estate may be situated.”
In order, therefore, to recover in this action, appellant must allege and prove that Charles Gilbert was the owner of the land at the time of his death, and that he left no wife or kindred. To prove ownership in Gilbert, plaintiff introduced in evidence a deed to him purporting upon its face to have been made by one Matthews as attorney in fact of Gilbert’s grantor; but no power or authority for so doing was shown, and no proof made that Gilbert ever went into possession under the deed. The deed was, therefore, not evidence of title in Gilbert, and unless there is further evidence in the case of Gilbert’s title, the court below did not err in finding that he was not the owner of the land in controversy at the time of his death. Denn v. Reid, 10 Pet. 524, 530; Videau v. Griffin, 21 Cal. 389; Hager v. Spect, 52 Cal. 579; Smith v. Lawrence, 12 Mich. 431; Wearin v. Munson, 62 Iowa, 466 (17 N. W. Rep. 746).
There is no direct allegation in the complaint that Charles Gilbert died leaving no wife or kindred, but the decree of the probate court of Pierce county so stating is therein set forth. And it is alleged that appellant, by virtue of this decree, became the owner of the land now in dispute. Whether this be true or not will depend upon the validity of the decree itself.
Appellees contend that it is not valid or binding upon
This being decisive of the case, we need not stop to consider minor questions raised in the briefs, and discussed by the respective counsel.
Whether appellees have any title to the disputed premises we will not undertake to say. But we will here state that we are of the opinion that if the territory is the owner of the land, the title vested in it immediately on the death of Gilbert, without the aid or intervention of the probate court. See 6 Am. and Eng. Ency. of Law, 856-7, and cases cited; Com. v. Hite, 29 Am. Dec. 235, notes. And in that case it can recover possession of the land, like any other owner, by an appropi’iate action in the proper court.
The judgment of the court below, dismissing plaintiff’s complaint, is affirmed.