Carlson v. Curren
| Decision Date | 15 January 1908 |
| Citation | 48 Wash. 249,93 P. 315 |
| Parties | CARLSON et ux. v. CURREN et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.
Action by Levin Carlson and wife against J. C. Curren and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.
See 85 P. 627.
Boyle & Warburton, for appellants.
T. W Hammond, for respondents.
The appellants purchased certain lots situated in the city of Tacoma which were sold by the county of Pierce under a judgment entered in a tax foreclosure proceeding, receiving a deed for the property in due course. At the time of the sale the respondents J. C. and Mary Curren were in possession of a part of one of the lots, claiming to hold as tenants of some third person. After the delivery of the tax deed the appellants entered into possession of all that portion of the lots not in possession of Curren and wife whereupon Curren laid claim to the whole of the premises adverse to the appellants. The other respondents also laid claim to interest in the property adverse to the appellants. The appellants thereupon brought this action to quiet their title against the claims of all of the appellants and to recover that portion of the lots in possession of the respondents Curren. In their complaint the appellants set up the nature of their estate, alleging that they were owners in fee simple of the premises by virtue of the tax foreclosure proceedings and the sale thereunder and the deed executed in pursuance thereof; that the respondents Curren were in possession of a part of the premises, and claimed the whole of the same adversely to the appellants; that the other respondents also claimed some interests in the premises adverse to the appellants, but that the claim of each and all of the respondents were without right, as neither of them had any right, title, or interest therein whatsoever. The prayer of the complaint was that the appellants be adjudged to be the owners in fee simple of the premises, and their title quieted against the claims of each and all of the defendants, and that they recover possession of the whole of the premises, and the respondents Curren be ejected therefrom. A demurrer was interposed to the complaint upon the statutory grounds: (1) That several causes of action had been improperly united; and (2) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer came on for hearing before the superior court on March 2, 1907, and was, after argument, sustained. On April 15th thereafter the appellants gave notice that they elected to stand on their complaint, and declined to amend, whereupon the court entered judgment dismissing the action. From the judgment so entered, this appeal is taken.
The appellants move to dismiss the appeal for the reason that no sufficient notice of appeal was given. The notice of appeal was given in open court at the time the court signed the judgment of dismissal, and was regularly entered by the clerk on the journal of the court under the direction of the judge. This was in strict compliance with the statute, and sufficient notice to perfect the appeal. We have not overlooked the contention of the respondents, made in their briefs, to the effect that the judgment was entered in their absence and without their knowledge, but this fact does not appear on the face of the record. On the contrary, the judgment on its face is regular, and if it fails to recite the facts truly, the remedy must be found in some other proceeding than a motion to dismiss the appeal. The motion is denied.
The trial judge sustained the demurrer to the complaint on the ground that several causes of action had been improperly united. He seems to have taken the view that, since the respondents Curren were in possession of a part of the land a different form of action was required to determine their rights than was required to determine the rights of the other adverse claimants, all of whom were out of possession; that the remedy against the first was ejectment to recover the possession, while an equitable action to quiet title was the remedy against those out of possession. This view of the remedies afforded a...
To continue reading
Request your trial
-
Durrah v. Wright
...demurrer was properly overruled.[21] The four post-statehood cases are Spithill v. Jones,22 Rohrer v. Snyder,23 Brown v. Baldwin,24 and Carlson v. Curren.25 In each, the State Supreme Court indicated that from common law times to the time of the dispute then before it, the right to jury tri......
-
Finch v. Matthews
...maintain an action to quiet title, even though out of possession. Brodsky v. Nelson, 57 Wash. 671, 107 P. 840 (1910); Carlson v. Curren, 48 Wash. 249, 93 P. 315 (1908); Brown v. Baldwin, 46 Wash. 106, 89 P. 483 (1907); RCW 7.28.010. The superior title whether legal or equitable must prevail......
-
Brodsky v. Nelson
... ... Brown v. Baldwin, 46 ... Wash. 106, 89 P. 483; Vietzen v. Otis, 46 Wash. 402, ... 90 P. 264; Carlson v. Curren, 48 Wash. 249, 93 P ... 315 ... The ... appellant's equitable title to the property became a ... legal ... ...
-
Bruhn v. Pasco Land Co.
...an action to recover possession, and that this court has heretofore so held. Brown v. Baldwin, 46 Wash. 106, 89 P. 483, Carlson v. Curren, 48 Wash. 249, 93 P. 315, Garvey v. Garvey, 52 Wash. 516, 101 P. 45, are cited as maintaining the position, but we think the appellants have misunderstoo......