Abrams v. State

• Decision Date: 15 January 1907
• Citation: 88 P. 327,45 Wash. 327
• Parties: ABRAMS v. STATE et al.
• Court: Washington Supreme Court

88 P. 327

45 Wash. 327

ABRAMS v. STATE et al.

Supreme Court of Washington

January 15, 1907

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by Robert Abrams against the state of Washington, the county of King, and others. From the judgment, plaintiff and defendants the state of Washington and county of King appeal. Affirmed.

Dunbar and Root, JJ., dissenting.

John D Atkinson, R. F. Booth, Kenneth Mackintosh, and R. W. Prigmore, for appellants county and state.

Will H. Thompson, Victor E. Palmer, and G. Ward Kemp, for appellant abrams.

Hughes McMicken, Dovell & Ramsey, for respondents.

CROW J.

This action was commenced by the plaintiff Robert Abrams to recover possession of, and quiet title to, certain real estate in the city of Seattle, which, on August 1, 1890, for a consideration of $3,500 then received, he and his wife conveyed by warranty deed to one Lou Graham. His grantee entered into immediate and exclusive possession, made valuable improvements, and continued to exercise full acts of ownership, until March 11, 1903, when she died intestate. Shortly after her death the defendant R. V. Ankeny was appointed and qualified as her administrator, and has ever since been in possession leasing the premises to the defendants N. A. Hebert and C. W. Shomo. The plaintiff has never been in possession since the date of his deed, nor has he at any time claimed title or right of possession prior to the commencement of this action in September, 1904. Lou Graham was an alien, being a subject of the German Empire. On May 17, 1894, she filed in the United States District Court for the District of Washington, Northern Division, her declaration of intention to become a citizen of the United States, but never took any further steps to perfect her citizenship. For a long time prior to obtaining her deed, and at all times thereafter, she was a woman of notoriously bad character. Immediately after purchasing the property, she constructed thereon a three-story brick building, in which she, as proprietress, conducted a house of prostitution until her death. She was repeatedly arrested and fined in the police court of the city of Seattle for her violations of the law in conducting such house. The defendant Johann Bernnard Aug. Ohben, her brother, and the defendants Johanna Bertha Ohben-Klaus, and Pauline Eberhardt (née Ohben) her sisters all aliens, are her only heirs at law, and will hereafter be mentioned as the 'alien heirs.' The plaintiff Abrams, claims title to the real estate on the theory that, as Lou Graham was an alien, his deed was absolutely void, and passed no title. The state of Washington and the county of King have each filed separate answers, claiming that the property upon the death of Lou Graham, by operation of law, escheated to the state for the benefit of the school fund, while the alien heirs claim title by descent from the deceased. The trial court found all the facts above stated, and further found that the real estate was, at the date of the trial, of the value of $15,000; that the improvements thereon were of the additional value of $25,000; that no action or proceeding had ever been brought or instituted by the defendants, the state of Washington and the county of King, against Lou Graham in her lifetime for any escheat or forfeiture of the real estate; that at all times subsequent to the purchase of the real estate by Lou Graham and up to the time of her death, she, under claim and color of title made in good faith, had paid, or caused to be paid, all taxes levied thereon; that since her decease the defendant R. V. Ankeny, as her administrator, has paid all subsequent taxes; that Lou Graham was born in Hamburg, Germany; that her true name was Emelie Ohben; that after coming to this country she adopted the name of Lou Graham, which name was so adopted by her in good faith; that for more than 20 years immediately preceding her decease she lived in the city of Seattle under the name of Lou Graham, and in that name owned and held the real property in dispute in this action, and other real property; that she was never at any time known by any other name in the city of Seattle; that since the year 1888 she was known to, and corresponded with, her relatives under the name of Lou Graham, and in that name paid visits to them in Germany; that the defendants, the alien heirs above mentioned, and the said Lou Graham were all citizens and subjects of the republic of Hamburg until the formation of the German Federation, and thereafter became and continued to be citizens and subjects of the German Empire, except as the citizenship of Lou Graham might have been affected by her declaration of intention to become a citizen of the United States. On the foregoing findings the court made and entered its conclusions of law, as follows: 'That the plaintiff, Robert Abrams, has no right, title, or interest in or to the premises in controversy, or any part thereof, and is not entitled to recover in this action. That the premises in controversy are not subject to escheat or forfeiture at the suit of the defendant state of Washington or of the defendant county of King upon their cross-complaints or otherwise. That the defendant R. V. Ankeny, as administrator of the estate of Lou Graham, deceased, is entitled to the possession of said premises, for the purpose of continuing and concluding the administration of the estate of Lou Graham, deceased, and is so entitled to hold the possession thereof by himself and his tenants. That the defendants Johann Bernhard Aug. Ohben, Johanna Bertha Ohben-Klaus, and Pauline Eberhardt, as the sole surviving heirs of the said Lou Graham, are the owners of the premises in controversy, by inheritance, from the said Lou Graham, and are entitled to have said premises distributed and set apart to them upon the final settlement of said estate.' From a final judgment and decree in favor of the alien heirs, the plaintiff Abrams, the state of Washington, and the county of King have separately appealed.

The appellants have excepted to a portion of the findings made by the trial court, but from an examination of the entire record we conclude that the facts above stated are fully supported by the evidence. The only contention between the state of Washington and the county of King is whether the property has escheated for the benefit of the school fund of the entire state or for the benefit of the school fund of King county only, and this question was reserved by them for future determination in the event this court should hold the land to have escheated. Many assignments of error are made by the appellants, but they all depend for their determination upon the construction to be placed upon section 33 of article 2 of the Constitution of the state of Washington, which reads as follows: 'The ownership of lands by aliens, other than those who in good faith have declared their intention to become citizens of the United States is prohibited in this state, except where acquired by inheritance, under mortgage or in good faith in the ordinary course of justice in the collection of debts; and all conveyances of lands hereafter made to any alien directly or in trust for such alien shall be void; Provided, That the provisions of this section shall not apply to lands containing valuable deposits of minerals, metals, iron, coal, or fire clay, and the necessary land or mills and machinery to be used in the development thereof and the manufacture of the products therefrom. Every corporation, the majority of the capital stock of which is owned by aliens, shall be considered an alien for the purposes of this prohibition.' The appellant Abrams contends that the purchase of lands by aliens is prohibited in this state; that all conveyances of land to them are absolutely void; that Lou Graham's declaration of intention to become a citizen was not made in good faith; that his deed to her, being absolutely void, conveyed no title, and that the legal title, therefore, remained in himself. The appellants state of Washington and county of King claim that the deed to Lou Graham was void as against the state; that the state could during her life time, by a proceeding in the nature of office found, have declared a forfeiture and escheat of the realty; that on her death it escheated by operation of law; that her declaration of intention to become a citizen of the United States was not made in good faith in contemplation of the Constitution; that being an alien she had no inheritable blood; and that upon her decease she could transmit no title to her alien heirs, who now claim title by inheritance. At common law an alien might take land by deed and hold the same as against all persons whomsoever, subject only to the right of the state to claim it by escheat upon office found, or by some other act or procedure equivalent thereto, and, until such action was taken by the state, the alien might dispose of his interest in the realty, either by conveyance or devise, and his grantees or devisees would thereupon acquire title notwithstanding his alienage. An alien could neither take nor transmit title to real property by descent, having no inheritable blood. If he died intestate without having made conveyance of the land acquired by deed, the same immediately vested by escheat in the state without any inquest of office found. 2 Enc. of Law (2d Ed.) 70-74; 2 Cyc. 90; 3 Current Law, 138; 1 Bacon's Abridgment, chapter on Aliens, 202; Kent's Commentaries, p. 61; 1 Jones' Law of Real Property in Conveyancing, §§ 163, 166: 'As to who may be freeholders, there is no exception in this country, beyond the disability in some states arising from alienage. By the common law, the chief difficulty, in this respect, is in acquiring title...