58 Wash. 642 | Wash. | 1910
One Ella H. Ruegg, a spinster, acquired title to the property in controversy by deed dated March 25, 1894. She subsequently married O. E. Kittredge. She paid no taxes on the property, and in 1900 one James McGrew brought action to foreclose a delinquent tax certificate on said property for the taxes for the years 1894, 1895, and 1896, having paid the taxes for the years 1897, 1898, 1899, and 1900. Service in said foreclosure action was made by
In the suit by McGrew the summons was by publication, the defendants therein being required to appear and defend the suit, in the language of the summons, “within sixty days after the service of this notice and summons upon you, exclusive of the day of service.” It is conceded that this is the only service there was. This summons by publication did not confer jurisdiction, under the rule announced by this court in Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536; Smith v. White, 32 Wash. 414, 73 Pac. 480; Thompson v. Robbins, 32 Wash. 149, 72 Pac. 1043; Dolan v. Jones, 37 Wash. 176, 79 Pac. 640, and Young v. Droz, 38 Wash. 648, 80 Pac. 810. While issues were made oñ this question in the pleadings, it is not contended here that the summons in that case was sufficient to confer jurisdiction.
The respondents rely upon the claim that the appellant did not prove the title in himself, for the reason, as they allege, that there was no proof of the execution of a deed from O. E. Kittredge and Ella H. Kittredge to the appellant, W. L. Thompson. At the close of plaintiff’s evidence, the defendants moved for a nonsuit. The court reserved his ruling upon the motion and ordered the trial to proceed. At the
We are forced to the conclusion, from a reading of the testimony, that the court erred in dismissing the appellant’s case. This court, in Western Loan & Sav. Co. v. Waisman, 32 Wash. 644, 73 Pac. 703, where an attempt was made to challenge the execution of a mortgage, said:
“In the absence of fraud or duress, public policy and the security of land titles require that as important a thing as a certificate of acknowledgment shall not be impeached without that degree of proof which is so clear and convincing that it has not the appearance of being prompted by interested or selfish motives. The rules applicable to the acknowledgment of a deed are equally forcible when applied to a mortgage. In either case, public morals and public security are best served by the requirement of that degree of proof which is disinterested and unaffected by any private advantage sought, before a certificate of acknowledgment shall be held to be impeached.”
And quoted the following from Pierce v. Feagans, 39 Fed. 587:
“In a case of this character it is not enough that there is a preponderance of evidence in favor of the defendants if it should be conceded that there is such a preponderance in the present case. In the language of the state courts, which furnishes the rule of decision, the burden is on the defendants, and the proof furnished to overcome the certificate must be “clear, cogent, and convincing.’ It is a record that is assailed,—a record of an official act performed more than six years ago, and made contemporaneously with the acts attested. The record is in due form of law, and it is aided by the presumption that always attends the acts of public officers, that the duty devolved on the officer was properly performed in the manner stated.”
It is a record the validity of which is questioned in this case. It is a certified copy of a deed of record which was pro
But we do not think that the testimony was equally balanced in this case, or that there is any question of a preponderance of testimony on the part of the respondent, or any testimony at all which could un'der any circumstances have the effect of disproving the validity of a deed. The respondent relies largely upon the deposition of Ella H. Kittredge, nee Buegg, which is the only testimony that it is claimed tends to show the invalidity of the deed or to show that no such deed was ever executed. Mrs. Kittredge had been examined in chief only as to matters pertaining to service of summons upon her. On cross-examination she was asked when she acquired title to this property, and stated that it was through her attorneys and she did not know when; could not state whether it was in 1890, 1895 or 1900; that she left all her business transactions to her attorney; did not know whether she had paid the taxes on the property for any number of years suggested, or at all, or whether any one else had paid the taxes for her, or whether she had ever furnished any money for her attorney or any one else to pay the taxes. She was asked: “When did you and your husband make a quitclaim deed of this property to W. L. Thompson?” and her reply was, over the objection of the appellant that this was not proper cross-examination: “I cannot say that we have made a deed.” When asked if she was ever paid any money for a quitclaim deed, she responded that all money was paid through her attorney. She stated that Mr. Hill, her attorney, had given her money, but whether for that particular purpose she could not say. When asked whether she knew, at the time that she executed a quitclaim to the property to W. L. Thompson, that parties were living on the
But we think it is immaterial whether the deposition was amended or not. At the best, it was merely the expression of an opinion as to where the title of the property was. The testimony, taken as a whole, shows that the witness was not making any claim to the property, and did not deny in any respect that she had acknowledged the deed, simply claiming that she did not know; that the business had been done through her attorney; that everything was intrusted to him, and she had no knowledge on the subject herself, and no
We think the evidence is entirely insufficient to justify the •conclusion reached by the court, and that the judgment should be reversed, with instructions to the court to overrule the motion interposed by the respondents and to determine the value of the property and of the improvements the value of which the respondents are entitled to under the betterment act; and to enter judgment in accordance with such determination.