Forker v. Henry

• Decision Date: 19 June 1899
• Citation: 57 P. 811,21 Wash. 235
• Court: Washington Supreme Court
• Parties: FORKER v. HENRY et al.

57 P. 811

21 Wash. 235

FORKER v. HENRY et al.

Supreme Court of Washington

June 19, 1899

Appeal from superior court, Spokane county; A. S. Miller, Judge.

Action by Lizzie H. Forker against Samuel Henry and another. There was a judgment for defendants, and plaintiff appeals. Reversed.

John R McBride and Saml. R. Stern, for appellant.

W. J Thayer and M. F. Mendenhall, for respondents.

REAVIS J.

Action to recover possession of land. Appellant alleged her ownership and possession of two parcels of land in Spokane county,--160 acres acquired under the homestead laws of the United States, and a half section acquired by purchase from the Northern Pacific Railroad Company,--and alleged that defendants wrongfully entered into possession of 10 acres of each parcel, had erected a sawmill and other buildings upon the premises, and were cutting down standing timber growing thereon. Defendants answered, denying the ownership in plaintiff of the premises, and also set up affirmatively that appellant, through her husband as her agent, made an oral contract with defendants, the effect of which was that defendants should cut the standing timber thereon, and manufacture it into laths and lumber, paying appellant therefor an agreed price for the timber so manufactured by them, which agreement was to continue in force about two years; that, in pursuance of such contract, defendants had entered upon said premises, and erected their sawmill and other buildings thereon, and had commenced to cut timber for the purpose of manufacturing it into laths and other lumber. Defendants also alleged that the premises described in the complaint were the community property of appellant and her husband, C. W. Forker.

1. The motion to dismiss the appeal, because of an alleged defect in the bond, is not well taken. The defect pointed out was merely technical, and cured by the prompt offer of a bond correct in form. Upon the trial, the testimony disclosed that appellant was an unmarried woman when she filed upon the homestead, in 1883. She settled upon and improved the homestead, and continued to reside there, when, in 1887, she was married to C. W. Forker, her husband. Thereafter she and her husband resided thereon, and final proof was made upon the homestead. Patent issued to her in due course. Upon the facts thus shown, the superior court withdrew the 40 acres in suit from the consideration of the jury, and determined, as a matter of law, that the homestead was community property of appellant and her husband, and that failure to join the husband as plaintiff in this action was fatal to its maintenance, under section 4826, 2 Ballinger's Ann. Codes & St. Appellant excepted to the withdrawal from the case of the land acquired as her homestead, and the important question thus presented is whether, upon the facts shown, the homestead was separate property of the appellant or the community property of herself and husband. It is proper to further add that the facts shown disclose that, as between appellant and her husband, it was deemed her separate property. Counsel for respondents maintain that the ruling of the superior court is sustained by decisions in this court, and those cited will be mentioned here.

Kromer v. Friday, 10 Wash. 621, 39 P. 229. In this case the court observed: 'In considering the character of the title, as to whether it was community land as a mattter of fact, a question is raised as to when the title vested in Erskine D. Kromer. Final proof was made by him before the marriage ceremony aforesaid was performed, but the patent was issued thereafter. Although, for certain purposes, the title, at least the equitable title, was earned and accrued upon the making of final proof and receipt of the certificate, the full, or legal, title did not pass until the patent was issued. The plaintiffs claim that the patent should relate back to the time of making final proof, and that, therefore, the land vested in Erskine D. Kromer as his separate property, if in fact he was not then a married man. Undoubtedly, for certain purposes, this would be true, but the doctrine of relation is a fiction of law adopted by courts solely for the purposes of justice. Gibson v. Chouteau, 13 Wall. 92. We are of the opinion that it should not be invoken in this case to defeat the claims of the widow. Her equities were as great as those of Erskine D. Kromer or the children. It may fairly be inferred, from all that transpired, that there was no intentional wrongdoing upon the part of either of said parties; and that they were living together, and regarded each other as husband and wife, is apparent, prior to the marriage ceremony aforesaid, and, if necessary to save her rights in the premises, we are satisfied that we would be justified in holding, and should hold, that, the legal title having passed subsequent to the marriage of the parties, it vested in the community. A further question is raised, to the effect that the title to the land under the homestead laws is taken by gift, and consequently that it would become the separate property of the husband under the laws of the territory. There seems to be some conflict in the authorities upon this proposition. As the matters hereinbefore discussed decide this case in favor of the defendants, we will not undertake to enter into any consideration of the cases bearing upon this question, but content ourselves with saying we are satisfied that, within the intent of our laws relating to community property, such land is, in effect, taken by purchase, by reason of the settlement and improvements thereon, in which the wife participates as well as the husband, and consequently that this land was the community property of Erskine D. Kromer and his said wife.' But in that case it was shown that in an action in partition, in which all the parties and privies were before the court, it had been before determined that the land involved was community property, and it was held that such adjudication was final, estopped parties and their privies, and they would not be permitted to again litigate that question. It also appeared that the man and woman were living upon the premises before the initial step for filing was taken for their acquisition, and it was held that the fact of a marriage ceremony having been performed afterwards--that is, at the date mentioned after final proof--did not negative the presumption that they were man and wife at the time the filing was made. Thus, the equities of the wife were cogent. She had lived with her husband upon the land from the initiation of the settlement, and the court assumed, in support of her equities, that the fact of a marriage ceremony made after final proof did not, for the purposes of the case, negative a preexisting valid marriage.

The case of Philbrick v. Andrews, 8 Wash. 7, 35 P. 358 relates to a statutory...