Card v. Cerini

• Decision Date: 29 July 1915
• Docket Number: 12507.
• Parties: CARD v. CERINI et al.
• Court: Washington Supreme Court

150 P. 610

86 Wash. 419

CARD v. CERINI et al.

No. 12507.

Supreme Court of Washington

July 29, 1915

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Frank B. Card, an insane person, by Ivan L. Hyland, his guardian, against Peter V. Cerini and others. From a judgment for defendants on demurrer, plaintiff appeals. Affirmed.

Saunders & Nelson, of Seattle, for appellant.

Jas. B Howe, Peters & Powell, and C. H. Winders, all of Seattle, for respondents.

HOLCOMB J.

Appellant's father, John C. Card, on February 1, 1861, being then unmarried, made actual settlement on the land described in appellant's complaint. On February 28, 1863, while still single, John C. Card filed his application in the United States land office to enter the land as a homestead. On November 15, 1866, the entryman married appellant's mother. On May 14, 1869, the entryman filed his final proofs in the land office, and on May 20, 1872, homestead patent was issued and delivered to the entryman, which was duly recorded in King county, where the land is situate, on January 22 1875. In 1880 the mother of appellant and wife of entryman died intestate, leaving surviving her husband and three sons. Her estate was never probated. On August 3, 1905, the father and two of his sons joined in a conveyance of the land, with certain exceptions which had been previously either conveyed or condemned, to respondent Cerini. On September 21, 1905 John C. Card died. Appellant sought by this action to recover an undivided one- sixth interest in the lands as heir of the one-third of an alleged community interest therein of his mother. The lower court sustained demurrers to the complaint.

The sole contention of appellant is that, when community is claimed in land patented to either of the spouses under the homestead entry laws of the United States, the date of the patent is the only point in time which can be justly considered by the state courts as controlling the status of the title, for the reason that that is the point in time when the federal laws finally and fully release the control of the federal government over the matter of the grant of the lands patented. We are asked to overrule or modify the effect of the decision in the case of Teynor v. Heible, 74 Wash. 222, 133 P. 1, 46 L. R. A. (N. S.) 1033. The cases of Wadkins v. Producers' Oil Co., 227 U.S. 368, 33 S.Ct. 380, 57 L.Ed. 551, and Buchser v. Buchser, 231 U.S. 157, 34 S.Ct. 46, 58 L.Ed. 166, are cited and relied on by appellant, to the effect that the Supreme Court of the United States binds itself by the rule of property decided by the state courts. But this statement is too broad. The Supreme Court of the United States did, indeed, in the Buchser Case, announce that:

'By the laws of the state of Washington, in which the property is situated, it became community property unless the statutes of the United States forbid [citing Teynor v. Heible, 74 Wash. 222, 133 P. 1, 46 L. R. A. (N. S.) 1033]. On that point we follow the Washington decisions.'

But this statement is based upon the further premise that there is no conflict of law between the state and the federal government. If 'the statutes of the United States forbid,' the state rule of property as construed by the state courts would not control. In the Buchser Case the court further say:

'There is no doubt, of course, that until the title is completed the laws of the United States control. Wadkins v. Producers' Oil Co., 227 U.S. 368 [33 S.Ct. 380, 57 L.Ed. 551]; Bernier v. Bernier, 147 U.S. 242 [13 S.Ct. 244, 37 L.Ed. 152]; Hall v. Russell, 101 U.S. 503 ; Gibson v. Chouteau, 13 Wall. 92 . But, when the title has passed, then the land, 'like all other property in the state, is subject to state legislation.' Wilcox v. Jackson, 13 Pet. 498, 517 ; Irvine v. Marshall, 20 How. 558 ; McCune v. Essig, 199 U.S. 382, 390 [26 S.Ct. 78, 50 L.Ed. 237].'

In the Wadkins Case the federal Supreme Court held:

'Under sections 2291, 2292, Rev. Stat. [U. S. Comp. St 1913, §§ 4532, 4543], no rights accrue to the wife of an entryman who dies before the entry is perfected, and nothing passes under the inheritance laws of the state in which the land is situated.'

It may be considered that the latter portion, 'and nothing passes under the inheritance laws of the state in which the land is situated,' is an adoption of the state rule of decision (Louisiana);...