Cox v. Tompkinson

• Court: Washington Supreme Court
• Writing for the Court: FULLERTON, J.
• Citation: Cox v. Tompkinson, 39 Wash. 70, 80 P. 1005 (Wash. 1905)
• Decision Date: 19 May 1905
• Parties: COX et ux. v. TOMPKINSON et al.

80 P. 1005

39 Wash. 70

COX et ux. v. TOMPKINSON et al.

Supreme Court of Washington

May 19, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by George H. Cox and wife against Lucy Tompkinson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Bronaugh & Bronaugh and R. L. Edmiston, for appellants.

Crow & Williams, for respondents.

FULLERTON J.

This is an action to quiet title to certain lots and blocks in Muzzy's Addition to the city of Spokane. The facts shown by the record are in substance these: On November 15, 1880 one Hiram Muzzy made a homestead entry on a certain quarter section of land, situate near the city of Spokane, and together with his family, consisting of his wife and five children, took up his residence thereon. On January 6, 1886 Mrs. Muzzy died, leaving as one of her heirs at law the appellant Lucy Tompkinson. In the early part of the year following, Muzzy made final proofs on his homestead, and on June 2, 1887, received his final receiver's receipt therefor. Patent was issued on May 26 1888. Immediately after receiving his final receiver's receipt, Muzzy platted a considerable portion of the property into streets, alleys, lots, and blocks, under the designation of 'Muzzy's Addition to Spokane Falls,' and after dedicating in writing to the public use forever the streets and alleys shown thereon, caused the same to be filed as provided for by law. On August 8, 1892, Muzzy, in consideration of the sum of $5,000 then loaned him by the respondent George H. Cox, executed and delivered to Cox a mortgage on the lots and blocks in question in this action--the same being a part of the addition so platted as above stated--to secure the repayment of the loan. Muzzy thereafter defaulted in the payments provided for in the mortgage, and the same was foreclosed, and the property sold on February 6, 1894. The respondent purchased the property at the sale, receiving a certificate of sale at that time, and a sheriff's deed on February 7, 1895. Immediately after the sale the respondent entered into possession of the property, and from that time down to the commencement of this action has maintained such possession to the exclusion of every one else, and has paid all the taxes that were lawfully levied and assessed thereon as the same matured--a period of more than seven years. After the death of his wife, Muzzy believed himself to be the owner in fee of the homestead property. He at once assumed sole and exclusive dominion and control over it, put such of it as he had platted into lots and blocks on the market for sale, and has sold many of the lots to persons who purchased them for residence and business purposes, giving warranty deeds to such purchasers. In short, the evidence shows that Muzzy not only claimed to be the sole owner in fee of the property, but has exercised such rights over it as one usually exercises over his own. Of the lots sold, many of them were improved by the purchasers by the erection of costly and permanent buildings, and the streets shown on the plat were at once assumed by the people and city authorities of the city of Spokane to be public streets, and have been used by them ever since as such. The city also has improved the streets by grading them and constructing sidewalks thereon, and has laid and permitted to be laid water mains and gas pipes therein. The appellant Lucy Tompkinson lived with her father on the homestead claim after the death of her mother until August, 1887, at which time she married and went to the home of her husband. Shortly thereafter she became estranged from her father, and no longer visited at his home or permitted him to visit her. She has lived, however, ever since her marriage, either in the city of Spokane, or within five miles therefrom, and knew that the homestead property was being disposed of by her father to persons who purchased on the faith of his title, and knew at all times of the improvements that were being made on the property. It was shown that as early as 1891 she took the advice of counsel as to her...