Dibble v. Bellingham Bay Land Co

• Citation: 163 U.S. 63,41 L.Ed. 72,16 S.Ct. 939
• Decision Date: 04 May 1896
• Docket Number: No. 230,230
• Parties: DIBBLE v. BELLINGHAM BAY LAND CO
• Court: United States Supreme Court

163 U.S. 63

16 S.Ct. 939

41 L.Ed. 72

DIBBLE

v BELLINGHAM BAY LAND CO.

No. 230.

May 4, 1896.

This was a complaint filed by the Bellingham Bay Land Company against Carmi Dibble in the superior court of Whatcom county, Wash., on June 7, 1891, seeking a decree quieting plaintiff's title to certain lands therein described, and establishing the existence a d validity of a certain power of attorney, alleged to have been lost without having been recorded. Defendant disclaimed as to the west half of the property in question, and, after demurrer overruled to an amended complaint, answered by way of denial, and assertion of defendant's claim set out in the complaint, and also by way of cross complaint. A trial was had on issues joined, and the superior court filed findings of fact and conclusions of law.

The court found that plaintiff was a corporation duly organized and existing under the laws of the state of Washington, with full powers to purchase, own, and sell real estate; that on or prior to March 28, 1862, Thomas Jones and Betsy Jones, his wife, were the owners of a certain donation land claim situated in the county of Whatcom, and territory of Washington, as particularly described; that these lands were donated to Thomas Jones and his wife under the donation laws of the United States, and that by virtue of the division which was made of them by the surveyor general, and by the certificate and patent, the west half of the lands was donated to Thomas Jones, and the east half to Betsy Jones, his wife. The court further found that on March 28, 1862, for a valuable consideration paid therefor, Thomas Jones, for himself and as attorney in fact for his wife, executed good and sufficient deeds of conveyance for all the tract of land to Edward Eldridge, and that, since that date, Eldridge had duly conveyed the premises to plaintiff, a small parcel excepted; that prior to the execution of the deed by Jones for himself and his wife, Betsy Jones had duly executed and delivered her power of attorney to Thomas, authorizing him to sell and convey the lands; that the power of attorney was executed under the seal of said Betsy, and was duly acknowledged and witnessed, and properly certified, but that the same was not placed on the records of the county, but became, and still remained, lost, and, at the date of the execution of the deed, had not been revoked. The court then described the parcel conveyed by Eldridge to other parties than plaintiff.

The court further found that 'on the said 28th day of March, 1862, the said Eldridge entered into possession of all of the said donation claim of Thomas Jones and Betsy Jones, and that from that date to the present time the said Edward Eldridge and his grantees, including the plaintiff in this case, have been continuously, and now are, in the actual, open, notorious, and adverse possession of all of the said property, under claim and color of title, excepting only the small parcels hereinbefore referred to as having been conveyed to other persons by the said Edward Eldridge'; 'that neither the defendant, nor his grantors, ancestors, or predecessors, had been seised or possessed of the said premises, or any part or parcel thereof, at any time since the said 28th day of March, 1862, and that the defendant is not now in possession of the said land'; that defendant claimed to be the owner of the premises, and to have procured deeds for the land from persons claiming to be the heirs of Betsy Jones, and had caused these deeds to be recorded in Whatcom county, and had created a cloud upon plaintiff's title; that there was not sufficient evidence to establish the fact that Betsy Jones died intestate, or that the persons under whom defendant claimed (Lovatt and others) were the heirs at law of Betsy Jones; that, at the time when defendant claimed to have purchased the property from these alleged heirs, he had full notice and knowledge of the conveyance previously made by Thomas Jones for himself and his wife, and that he had notice of the existence of the power of attorney under which Jones conveyed as attorney in fact for his wife, and had notice that plaintiff was in possession of the premises, claiming to be owner under the Jones deed; and 'that it and its immediate grantors had been in the possession of the said premises for more than ten years last past.'

The superior court found, as conclusio § of law, that plaintiff was entitled to the relief prayed (including, among other things, the establishment of 'the existence and validity of the said power of attorney'), and entered a decree that plaintiff was the owner and in possession, and entitled to the possession, of the land in question, excepting the enumerated parcel; that defendant was not the owner of the premises, or any part or parcel thereof; and that the cloud created upon the title of the property by the deeds to defendant from Lovatt and others be removed, and plaintiff's title be quieted against all claims of defendant; and 'that the said power of attorney from the said Betsy Jones to Thomas Jones, her husband, be, and the same is hereby, established'; and for costs.

The cause was then taken on appeal to the supreme court of the state, and the decree below affirmed. 4 Wash. 764, 31 Pac. 30. Of the four judges of the supreme court who participated in the decision, all concurred in the judgment, and three, including the chief justice, in the opinion. Thereafter the chief justice signed a certificate, and this writ of error was brought.

Alfred L. Black, for plaintiff in error.

J. A. Kerr, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

By section 2 of article 27 of the constitution of the state, all laws in force in the territory of Washington not repugnant to that constitution were continued in force until they expired by their own limitation, or were altered or repealed by the legislature.

By section 5 of the territorial act of February 2, 1888, brought forward as section 1447 of the General Statutes (1 Hill's Code, p. 506), it was provided that all powers of attorney theretofore made and executed by any married woman joined with her husband, and duly acknowledged and certified, and all powers of attorney theretofore made or executed by husband or wife to the other, authorizing the sale or other disposition of real estate, duly acknowl- edged, and all conveyances theretofore and thereafter executed under and by virtue of such powers of attorney, and acknowledged and certified as provided, should be valid and binding, but no rights vested in third persons should be affected by anything in the section contained.

Plaintiff in error contends that the validity of that section was drawn in question, as repugnant to the fourteenth article of amendment to the constitution, and its validity sustained, in that the supreme court of the state held that the power of attorney and deed executed under it were thereby validated.

The certificate of the chief justice of that court was to the effect that in the trial by the court below, and on the hearing on appeal, 'the following question was duly and regularly raised, to wit: Whether the power of attorney alleged to exist, and to have been made by Betsy Jones to her husband, Thomas Jones, prior to the 28th day of March, A. D. 1862, and a deed executed under it to Edward Eldridge on the 28th day of March, 1862, which said power of attorney and deed, on the respective dates of the execution thereof, were absolutely void, were made valid and effective by the retrospective portion of section 1447 of volume 1 of Hill's Code of this state,' and that the section thus applied was in violation of the fourteenth amendment, and, further, that the supreme court 'did not express any written opinion on the question so raised as aforesaid, except such as is necessarily involved by the decree of this court in the above-entitled action, dated on the 17th day of September, A. D. 1892, and affirming the whole of the decree of the superior court of Whatcom county, state of Washington, in the above-entitled action, entered and filed in the office of the clerk of the said superior court on the 20th day of February, A. D. 1892, and such opinion as is expressed by the statement of this court in its written opinion in the above-entitled action, that the color of titl necessary to support a claim by adverse possession in respondent, the Bellingham Bay Land Company, rests and depends solely upon a warranty deed from the owner, Betsy Jones, executed by her husband, Thomas Jones, by virtue of the power of attorney urged and alleged by respondent to have been made valid by the retrospective part of the said Code section, which said statement, as set forth in the opinion of this court, is an integral and necessary part of the decision by this court rendered in affirming the said decree of the lower court.'

In respect of the supreme court, it is provided by section 5 of the Code of Procedure of Washington that 'in the determination of causes, all decisions of the court shall be in writing, and the grounds of the decision shall be stated'; and by sections 68 and 73 it is made the duty of its clerk to record its proceedings, and enter its orders, judgments, and decrees. And the thirteenth rule of the court provides that 'all opinions of the court shall be recorded by the clerk in a well-bound volume and the original filed with the papers in the case.' 2 Wash. St. 689, 28 Pac. vi.

It is the settled course of decision that this court may examine opinions so delivered and...