Balch v. Smith

• Decision Date: 06 July 1892
• Parties: BALCH ET AL. v. SMITH ET AL.
• Court: Washington Supreme Court

30 P. 648

4 Wash. 497

BALCH ET AL. v. SMITH ET AL.

Supreme Court of Washington

July 6, 1892

Appeal from superior court, Pierce county; F. CAMPBELL, Judge.

Action by Henry Balch and others against Esther C. Smith and others to recover real property alleged to belong to plaintiffs as heirs at law of La Fayette Balch, deceased. Judgment for defendants, and plaintiffs appeal. Affirmed.

Tripp, Town, Likens & Dillon, for appellants.

Doolittle & Fogg, for respondents.

HOYT J.

The errors assigned upon this appeal are that the court erred in sustaining the demurrer to the complaint, and in refusing the application of the plaintiffs for leave to file an amended one. The demurrer to the complaint was general, and, if for any reason the complaint was bad, it was properly sustained. By their complaint plaintiffs sought to recover possession of certain real estate, and to have their title thereto quieted. It was attacked in the court below, and is here upon two principal grounds: (1) That the action is barred by the statute of limitations; and (2) that the capacity of the plaintiffs to maintain the action does not sufficiently appear in the complaint.

The argument of the respondents upon the first proposition is that it nowhere appears from the complaint that the plaintiffs were seised or in possession of the premises within 10 years next prior to the commencement of the action. Their contention in that behalf is that under the peculiar wording of our statute ^[1] it is necessary to allege actual possession of the premises within the statutory period whether or not any other person is shown to have been in adverse possession thereof. The allegations of this complaint show that the ancestor of these plaintiffs died seised and possessed of the premises, but there is no allegation that these plaintiffs, or any of them, had ever been in possession thereof. Conceding, for the purpose of the discussion of this question, that the allegation that these plaintiffs were the heirs of such deceased party established their capacity to sue, we think the allegation as to possession was sufficient. In our opinion, our statute of limitations is, like that of most of the other states, one of adverse possession, and under it the rightful owner of real estate is seised of the same, whether or not he is in actual possession thereof, unless the same is in the actual adverse possession of some other person. This being so, it follows that, when ownership and seisin is once shown, it will be presumed to have continued until such presumption is overcome by allegation and proof of adverse possession in some one else. The fact was sufficiently alleged that the ancestor had been seised of the premises, and, until something appeared to overcome the presumption of such seisin, it would have force in behalf of such ancestor or those holding under him.

The next question is one of great importance, and we have given it a somewhat careful consideration. Does this complaint sufficiently show a capacity on the part of the plaintiffs to maintain this action? In other words, is the allegation that they are the heirs of the person who was seized of the premises, without any other statement to aid such allegation sufficient to enable them to recover upon the strength of the title which they as such heirs may have derived from their ancestor? It is contended on the part of the respondents that an heir, simply as such, cannot maintain an action for the possession of real estate. We held in Dunn v Peterson, 29 P. 998, that while an estate was in progress of administration the heir labored under such disability. But here a broader question is presented. As we have already stated, there is nothing in this complaint to show either that administration was or was not in progress, or had been had and concluded, or from the circumstances was unnecessary; and we are compelled to decide the simple question as to whether or not, under our system for the administration of estates and descent of real property, the heirs under these allegations show themselves entitled to maintain an action against one claiming adversely to their ancestor. It is an entirely new question in this state, excepting so far as the case of Dunn v. Peterson, above cited, and that of Hanford v. Davies, 25 P. Rep., 329, may throw light thereon, and neither of these cases is decisive of the exact question presented here. Section 956, Code Proc., provides that the administrator may take possession of the real estate of his intestate, and maintain possession thereof, with the responsibility of ownership, until the same shall have been delivered over by order of the probate court. And it is contended on the part of the respondents that this shows clearly the intent on the part of the legislature that, before the heir gets such title as he can enforce in the courts, the property claimed by him must have been so delivered over; and that the simple fact of his heirship, without the aid of such adjudication by the probate court, is not sufficient to authorize him to maintain an action against an adverse holder. Several states have provisions substantially the same as this section 956, and in the case of Territory v. Bramble, 2 Dak. 208, 5 N.W. 945, there is a general discussion as to the proper construction to be given thereto, and cases are therein cited from Michigan and other states which establish a rule of construction of language similar to that used in said section. In nearly all of the states having such provisions it has been held that administration is not indispensable to the descent to the heir of a perfect title, with all the rights incident thereto. The argument of the courts in that regard seems to be that the language does not make it the absolute duty of the administrator to take possession of the real estate, but simply gives him permission so to do. And it is held for that reason that such administrator is clothed with the discretion in any case to determine whether or not it is necessary and proper that he should take possession of the real estate. These cases are entitled to much weight, as they are from courts of high standing. Even with this construction, it might be necessary for an heir seeking to enforce rights independent of administration to negative in the allegations of his complaint the exercise of this right of possession by the administrator. But we should feel constrained to hold with these decisions, were this section 956 the only provision of our statute relating to this subject. The cases of which we have been speaking seem to have gone off entirely upon the language of the section of the statutes of the respective states corresponding to our section 956, and if they had other provisions similar to the succeeding sections of our probate practice act, to which we shall now call attention, such fact seems to have escaped the attention of the courts, and we assume that these further provisions of our statute were not contained in those under discussion when those cases were decided. Our section 956, as we have already seen, simply gives the administrator permission to take possession of the real estate,-at least, it uses the word "may" instead of the word "shall," and, in the...