Cunningham v. Krutz

• Decision Date: 27 December 1905
• Citation: 41 Wash. 190,83 P. 109
• Parties: CUNNINGHAM et al. v. KRUTZ et al.
• Court: Washington Supreme Court

83 P. 109

41 Wash. 190

CUNNINGHAM et al. v. KRUTZ et al.

Supreme Court of Washington

December 27, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by R. Cunningham and others against Harry Krutz and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

George Fowler, for appellants.

H. E Foster, for respondents.

HADLEY J.

This is an action for the partition of real estate. The plaintiffs allege that they are seised in fee simple of the undivided half interest in the land, and that the defendants Harry Krutz and Mary E. Foster are tenants in common with plaintiffs in the ownership of the land. The defendants Harry Krutz and wife, by their answer, deny that the plaintiffs have any interest whatever in the land, either as tenants in common with the defendants or otherwise. They also deny that the defendant Mary E. Foster has any interest in the land except that she holds a mortgage thereon for $500. It is affirmatively alleged in the answer that in December, 1887 one Carlson made entry upon a certain quarter section of land, which includes the land in question, the entry being made under the homestead laws of the United States; that he continued to reside thereon until April, 1890, when he commuted the homestead entry, made final proof, paid cash for the land at the government price, received his final receipt therefor, and that, in due course thereafter, a patent was issued to him by the United States; that in July, 1890, said Carlson borrowed of one Thomas S. Krutz the sum of $750, gave his note therefor, and to secure the same executed a mortgage upon said land, which was duly recorded. Allegations are made showing the due foreclosure of the mortgage by the assignee thereof against that part of the land here involved, a conveyance of the land under the foreclosure by the sheriff, and subsequent conveyances in direct line to the defendant Harry Krutz; that the defendant Hattie Krutz was, at the date of the conveyance to Harry Krutz, and still is, the wife of Harry Krutz; and that said land became, by said conveyance, the community property of the said two defendants. They ask that plaintiffs' complaint shall be dismissed. The answer of Mary E. Foster denies that the plaintiffs have any interest in the lands, and asks that their complaint be dismissed. The reply avers that the entry was made about December 21, 1887, and that from that time Carlson and wife were in possession and resided upon the land; that in 1890 the wife of Carlson died testate, leaving a last will, which was duly admitted to probate; that said wife left three children as devisees under her will; that one of the children, an infant, has since died intestate, and without issue; that on the death of the wife and the probating of her will the said children, her devisees, became the sole owners in fee simple of an undivided half interest in said land, and continued to hold the same until March, 1904, when, by deed, the two surviving children, together with their father, the surviving husband, conveyed said undivided half interest to one Shea; that thereafter said Shea and his wife conveyed to the plaintiffs. The cause was tried by the court, and resulted in a judgment for the plaintiffs, declaring that they are the owners in fee simple of an undivided half interest in the land, and awarding partition thereof. The defendants have appealed.

From the foregoing it will be seen upon what the respective claims of title are based. The respondents contend that the deceased, Mrs. Carlson, had a devisable community interest in the land, and that they are the owners, by successive conveyances, of the interest so devised. Upon the other hand, appellants urge that, when the patent issued to the surviving husband, it conveyed to him the entire title as his separate property, and that through the foreclosure of a mortgage given by the patentee and successive conveyances thereunder the appellants Krutz and wife are the holders of the entire title. The trial court refused to receive and consider the offered evidence of appellants as to the giving and foreclosure of the mortgage, and as to the subsequent conveyances by which Krutz and wife claim title. It was the theory of the court that the land was the community property of Carlson and his deceased wife, and that by the will of the latter the undivided half passed to her children, through whom and their grantees it has come to respondents. Upon this theory the court treated appellants' offered evidence as immaterial and incompetent. Respondents, however, conceded in their brief that, if the patent conveyed separate, and not community, property, they have no interest in the land. The entry was made as a homestead entry, and within less than three years thereafter the wife died. The husband did not continue to reside upon the land the required time to perfect the homestead, but commuted his homestead rights after the death of his wife, and made final proof and cash payment, in pursuance of which, in due course, a patent was issued to him. It therefore becomes necessary to determine whether the land was the separate property of Carlson or whether it became the property of the community, and it is proper that we shall first refer to our own decisions bearing upon the question as to who obtains title from the United States through a homestead patent.

In Kromer v. Friday, 10 Wash. 621, 39 P. 229, 32 L. R A. 671, Kromer made a homestead entry, and an Indian woman lived with him as his wife. The required time of residence expired, and final proof was made. After the making of final proof, a marriage ceremony was performed between Kromer and the woman, and soon afterwards a patent was issued to Kromer. It was held that the land became the community property of the two. The holding was, however, apparently based upon the theory that the fact that the two had been living together as man and wife, and that a marriage ceremony was subsequently performed, was not conclusive evidence that there was no previous marriage between them, and that the land therefore became community property, nothwithstanding that final proof was made before the ceremony was performed. In Bolton v. La Camas Water Power Co., 10 Wash. 246, 38 P. 1043, it was held that where the required time of residence upon a homestead had expired, and the wife afterwards died, but before final proof and issuance of patent to the husband, the community acquired only an equitable estate; the husband taking the full legal title, and, upon his conveyance to a grantee ignorant of the equities of the wife's heirs, both the legal and equitable titles passed. In Forker v. Henry, 21 Wash. 235, 57 P. 811, it was held that where a woman had settled upon and improved a homestead before her marriage, and final proof was made and patent issued to her after marriage, the land became her separate property under our statute which defines as separate property of the wife all her property and pecuniary rights held by her at the time of her marriage. At the time of her marriage she had resided upon the land about four years, and, although she was not then entitled to the legal title, the court seems to have considered that, on account of her previous settlement and improvements, such equities attached as entitled her to the ultimate title as her separate property; the further fact appearing in that case that, as between the husband and wife, the land was deemed to be the wife's separate property. In Ahern v. Ahern, 31 Wash. 334, 71 P. 1023, 96 Am. St. Rep. 912, the husband and wife had resided upon the homestead more than six years, when the wife died. Final proof was made after her death, and the patent was issued to the husband. It was held that the land became community property. In Towner v. Rodegeb, 33 Wash. 153, 74 P. 50, 99 Am. St. Rep. 936, it was held that where a settler upon unsurveyed public lands died, leaving no widow, and without heirs who were citizens of the United States, the land was again open to settlement, since the heirs could not succeed by right of inheritance, but by virtue only of a preference right given them by the laws of the United States if they had been duly qualified citizens. In James v. James, 35 Wash. 655, 77 P. 1082, the homesteader and his wife settled upon land, and three years afterwards the wife died. The husband completed the required residence and obtained a patent. It was said in that case that one who had been legally adopted by the husband and wife as a son was the lawful heir of the deceased wife, and...