Anrud v. Scandinavian-American Bank

• Decision Date: 23 December 1901
• Citation: 67 P. 364,27 Wash. 16
• Court: Washington Supreme Court
• Parties: ANRUD et al. v. SCANDINAVIAN-AMERICAN BANK.

67 P. 364

27 Wash. 16

ANRUD et al. v. SCANDINAVIAN-AMERICAN BANK.

Supreme Court of Washington

December 23, 1901

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Action by Mildred Olive Anrud and others, by Frank A. Jones, their guardian, against the Scandinavian-American Bank. From a judgment in favor of the defendant, the minor plaintiffs appeal. Reversed.

S. S. Langland, for appellants.

Ballinger Ronald & Battle, for respondent.

WHITE J.

This is an action by Frank A. Jones, as guardian of the infant children and heirs of O. E. Anrud, deceased. The appointment of appellant as such guardian, and the corporate capacity of the respondent, are alleged. The complaint, in substance then alleges that Mildred Olive Anrud, Arthur T. Anrud, and Helen A. Anrud are the infant children of O. E. Anrud deceased; that O. E. Anrud died intestate in June, 1898 being at the time of his death a resident of King county, Wash.; that at the time of his death he was the owner in fee simple and possessed of a certain tract of land in said King county, as his sole and separate property and estate. The land is fully described in the complaint; that there survive the said O. E. Anrud, as his sole heirs at law, the above-named children and his widow, Matilda Anrud. On the 29th of November, 1898, said Matilda Anrud was appointed to administer upon the estate of the said decedent. On the 20th of October, 1892, O. E. Anrud and his wife executed to the appellant a mortgage of that date on the said land to secure the sum of $3,500. On the 5th of June, 1899, an action was commenced to foreclose said mortgage. Matilda Anrud, as administratrix of the estate of O. E. Anrud, and in her own right, and certain other persons, were made defendants in said action. The infant children of said O. E. Anrud were not made defendants, and they were not parties to the action, nor served with any process therein. On the 3d day of October, 1899, judgment was recovered in said action against the defendants therein, foreclosing said mortgage on said land as to said defendants. On the 18th of November, 1899, by virtue of said judgment and order in said action, all the interest of said defendants in said land was sold to the respondent for $2,500, leaving a deficiency, for which a judgment against said Matilda Anrud and the estate of O. E. Anrud in the sum of $3,200 was entered. Said sale was confirmed on the 31st of July, 1900. The deficiency judgment against said Matilda Anrud and the estate of O. E. Anrud was satisfied by surrender to respondent of certain collateral security. It is also alleged that all the debts of said decedent, and costs and charges of administering his estate, have been fully paid; that the respondent is in possession of, and claims it is entitled to the possession of, all of said land, and claims to be the sole and exclusive owner thereof under its purchase at the foreclosure sale. It is alleged that this is a cloud upon the title of the said minor heirs. It is distinctly alleged that no action or proceeding whatever was ever brought in any court against said minor heirs to foreclose or determine their interest in said land. By the complaint they claim the undivided twoninths interest in said land. The prayer of the complaint is that the said judgment be declared null and void, and that the appellant minors be declared the owners of a twoninths interest in fee simple in said land, free and clear of any adverse interest of the respondent, and that a partition on this basis be made between the minor heirs and the respondent, etc. To the complaint a demurrer was interposed by the respondent on the ground that it did not state facts sufficient to constitute a cause of action, etc. This demurrer was sustained. The ruling of the court in this respect is assigned as error. The appellants elected to stand upon the complaint, and judgment dismissing the action was rendered. From this judgment the appeal is taken.

The appellants contend that there is but one proposition involved in this appeal, and that is, can the heirs be deprived of their right, title and interest in the land in controversy without having been made parties to the action in the foreclosure proceeding mentioned in the complaint? The respondent contends that the minor heirs were not necessary parties to the foreclosure suit; that if they were, they cannot maintain this action, because they do not tender into court or to the respondent the proportion of the debt for which their interest in the land was pledged. We have recently held that there is no necessity for a decree or order of distribution of a probate court in order to pass title to the real property from the ancestor to the heir that the rule as it formerly existed in this state, 'that the intervention of the probate court and an adjudication and distribution thereunder are essential to the passing of the title of the ancestor to the heir so perfected as to make it beneficial to him,' has been changed by Acts 1895, p. 197 (section 4640 et seq., Ballinger's Ann. Codes & St.). Griffin v. Warburton, 23 Wash. 231, 62 P. 765. Section 4640, supra, is as follows: 'When a person dies seized of lands, tenements or hereditaments, or any right thereto or entitled to any interest therein in fee or for the life of another, his title shall vest immediately in his heirs or devisees, subject to his debts, family allowance, expenses of administration and any other charges for which such real estate is liable under existing laws. No administration of the estate of such decedent, and no decree of distribution or other finding or order of any court shall be necessary in any case to vest such title in the heirs or devisees, but the same shall vest in the heirs or devisees instantly upon the death of such decedent: provided, that no person shall be deemed a devisee until the will has been probated. The title and right to possession of such lands, tenements or hereditaments so vested in such heirs or devisees, together with the rents, issues and profits thereof, shall be good and valid against all persons claiming adversely to the claims of any such heirs, or devisees, excepting only the executor or administrator when appointed, and persons lawfully claiming under such executor or administrator; and any one or more of such heirs or devisees, or their grantees, jointly or severally, may sue for and recover their respective shares or interests in any such lands, tenements, or hereditaments and the rents, issues and profits thereof, whether letters testamentary or of administration be granted or not, from any person except the executor or administrator and those lawfully claiming under such executor or administrator.' The language of this section leaves no room for construction. It declares that the title of...