Delacey v. Commercial Trust Co.

• Decision Date: 02 February 1909
• Citation: 99 P. 574,51 Wash. 542
• Court: Washington Supreme Court
• Parties: DELACEY v. COMMERCIAL TRUST CO. et al.

99 P. 574

51 Wash. 542

DELACEY v. COMMERCIAL TRUST CO. et al.

Supreme Court of Washington

February 2, 1909

Appeal from Superior Court, Pierce County; George T. Reid, Judge.

Action by Hannah E. Delacey against the Commercial Trust Company and others. From a decree for defendants, plaintiff appeals. Affirmed.

Garretson & Early, for appellant.

Fogg &amp Fogg and B. S. Grosscup, for respondents.

CHADWICK, J.

In April, 1886, James Delacey, husband of the plaintiff, made settlement with his family upon 160 acres of land lying within the corporate limits of the city of Tacoma, in Pierce county, intending to claim it under the homestead laws of the United States. The land was within the limits of the original grant in aid of the Northern Pacific Railroad Company by Congress under the act of July 2, 1864, and the acts and resolutions supplemental thereto and amendatory thereof. The company filed its maps of definite location May 14, 1874, and March 26, 1884, so that at the time of the Delacey settlement the land was not subject to private entry. It was so held in the several departments and by the Secretary of the Interior by whom the contest was finally decided November 28, 1891. Northern Pacific R. R. Co. et al. v. Flett, 13 Land Dec. Dep. Int. 617. Patent was issued to the Northern Pacific Railroad Company, and filed for record in Pierce county Wash., on January 18, 1893. In April of that year the railroad company brought an action of ejectment against James Delacey as sole defendant in the United States Circuit Court for the District of Washington, in which judgment of ouster was obtained. This case was appealed to the Supreme Court of the United States. The decision of the lower court was affirmed May 22, 1899. Northern Pacific Ry. Co. v Delacey, 174 U.S. 622, 19 S.Ct. 791, 43 L.Ed. 1111. Pending the appeal to the Supreme Court of the United States the Northern Pacific Railway Company succeeded to the rights of the original plaintiff in the ejectment case, and was substituted as the plaintiff therein. Upon remand final judgment was entered in the United States Circuit Court sitting at Tacoma. Prior to the entry of the judgment there was filed in said court a motion in the name of James Delacey, defendant, supported by the affidavit of plaintiff, in which the statue of limitations, the community interest of plaintiff, and the fact that she had not been made a party to the action of ejectment were urged as reasons why the court should limit and confine its order of removal to defendant James Delacey. This motion was overruled, and the judgment became res adjudicata as to all the rights of the parties to the ejectment suit. In the fall of 1894 James Delacey abandoned the land and his family. His whereabouts if alive is now unknown. On March 22, 1900, plaintiff was ejected from the land under a writ of restitution issued out of the United States Circuit Court. In the year 1907 plaintiff was awarded a decree of divorce from her husband, and by a later modified decree it was adjudged that the property herein involved was community property, and the whole thereof was set apart to her sole and separate use. She has also acquired by deed the interest, if any, of all her children, the issue of her marriage with James Delacey. During the time the Delaceys lived on the land, from 1886 until March, 1900, valuable improvements were made. On the 7th day of November, 1905, the Northern Pacific Railway Company conveyed the lands in controversy to defendant the Commercial Trust Company. This action was brought by plaintiff to recover possession and quiet her title to the land. From a decree in favor of defendants, plaintiff has appealed.

It will be seen that appellant relies upon the assertion of a community interest in the land, and upon the statute of limitations. She claims that she 'entered into the possession of the land as the owner thereof under a claim of right and in good faith, and has continued to occupy the same as the owner thereof by actual, uninterrupted, and notorious possession under a claim of right from April, 1886 to the latter part of March, 1900.' The fact that James Delacey acquired no interest in the land, community or otherwise, is an adjudged fact, from which the conclusion must inevitably flow that the appellant could acquire no greater right than her spouse. The community is an entity; the rights of the wife cannot be disassociated from those of her husband. The right of each is dependent upon the other, and, unless it exist in the one, it cannot exist in the other. It may be laid down as a fixed rule that no community interest results to the spouses by reason of settlement on government land. The entryman takes title upon such conditions and under such terms as the Congress may prescribe. The government may designate the object of its bounty or its preferred vendee, and fix the terms of its indulgence. Under existing laws there is no limitation upon its power to give or to take away up to the time patent issues. Mere settlement creates no rights in the entryman other than those given by statute or recognized by rule of the department. Nor can he put the statute of limitations in motion against the government, either in his own behalf or in behalf of those whose occupancy on the land is dependent upon his entry. Therefore one contesting for government land cannot gain the advantage of the statute over his adversary while the contest or litigation in aid of his title is pending. Port Townsend v. Lewis, 34 Wash. 413, 75 P. 982; Blake v. Shriver, 27 Wash. 593, 68 P. 330; Hesser v. Siepmann, 35 Wash. 14, 76 P. 295. The homestead law was passed without reference to our local laws of property....