Hatch v. Ferguson

• Citation: 57 F. 966
• Court: United States Circuit Court, District of Washington, Northern Division
• Decision Date: 06 October 1893
• Parties: HATCH et al. v. FERGUSON et al.

57 F. 966

HATCH et al. v. FERGUSON et al.

United States Circuit Court, D. Washington, Northern Division.

October 6, 1893

A. D Warner, Stratton, Lewis & Gilman, Junius Rochester, and W Scott Beebe, for complainants.

Francis C. Barlow, Brown & Brownell, and Cy. Wellington, for defendants.

HANFORD District Judge.

This is one of three cases commenced by the family of Ezra Hatch deceased, to recover portions of the land upon which the city of Everett is situated, the complainants herein being the four minor children of the said Ezra Hatch and Josephine Hatch. Their mother, Josephine, appears as prochein ami. The object of the suit is to annul a judicial sale of the interests of said minors in a trust of 160 acres, to which the said Ezra Hatch acquired the title from the United States, by the location thereon of a land warrant issued to him for services in the United States navy during the Mexican war. Said Ezra Hatch and Josephine commenced cohabiting together prior to the location of said land warrant, but their marriage was not solemnized until after a patent had been issued to said Ezra Hatch for said land. The will of said Ezra Hatch, which was duly admitted to probate after his death, contains a paragraph making disposition of his estate in the following words:

'I give and bequeath to my daughter, Esther Hatch, and to my sons, Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch, all my estate, real and personal, of every name and nature whatsoever, owned by me at the time of my death, after paying all my just debts and the admitting of this, my last will, to probate, and the sum of five dollars hereinafter bequeathed to my wife, Josephine Hatch; said estate being the one-half interest in the community property now owned by me and my said wife, from which I bequeath to my said wife the sum of five dollars, and it is my wish and desire that my said daughter and sons share and share alike in my said estate.'

In the month of April, 1891, the defendant Henry Hewitt, Jr. commenced an action in the superior court for the county of Snohomish, in which said land is situated, against said minor children and E. C. Ferguson, as their guardian, to partition said tract of land, alleging in his complaint, filed in said action, that he (Hewitt) then had an estate of inheritance in said tract of land to the extent of an undivided three-fifths thereof, and that each of said children had an undivided one-tenth thereof. A summons was issued in said action, directed to the defendants therein, the said minor children, and E. C. Ferguson, as their guardian, upon which the sheriff of Snohomish county made a return, in the following words:

'Sheriff's Return: Office of the Sheriff of the County of Snohomish, State of Washington. I hereby certify that I received the within summons on the 7th day of April, A. D. 1891, and personally served the same on the 8th day of April, A. D. 1891, on E. C. Ferguson, and on Dexter Hatch, Arthur Hatch, Cyrus Hatch, & Ezra Hatch, on the 14th day of April, 1891, they being the defendants named in said summons, delivering to each of said defendants personally, in the county of Snohomish, a true copy of said original summons.'

Ferguson appeared in said action, and filed an answer, admitting each and every allegation contained in the complaint. Afterwards a decree was rendered, pursuant to which the entire tract of land was sold, and the proceeds divided, the defendant Ferguson receiving the portions awarded to said minor children. The defendant Hewitt was the purchaser at said sale, and he afterwards conveyed 10 acres of said land to the defendant Judson La Moure, and the residue to the defendant the Everett Land Company.

I have heretofore passed upon the jurisdictional questions raised by a demurrer to the bill of complaint. See Hatch v. Ferguson, 52 F. 833. The case having been brought on for final hearing, the defendants Judson La Moure and his wife, Minnie E. La Moure, again questioned the jurisdiction, on the ground that they are citizens and residents of the state of North Dakota, and were citizens and residents of that state when this suit was commenced, and the plaintiffs were at the time of the commencement of this suit citizens and residents of the state of Oregon; and in behalf of said defendants it was argued that under the provisions of the act of March 3, 1887, relating to the jurisdiction of United States circuit courts, as corrected by the act of August 13, 1888, 'where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought in the district of the residence of either the plaintiff or the defendant.' Supp. Rev. St. (2d Ed.) 612. This, however, is a suit to enforce a claim to the title to real property situated within this district, and all the defendants have voluntarily appeared herein, and submitted to the jurisdiction of the court, for the purpose of an adjudication of their adverse claims to said title. This court is therefore vested with complete jurisdiction by reason of said facts, and by virtue of the provisions of the eighth section of the act of March 3, 1875, (Supp. Rev. St. (2d Ed.] 84.)

The validity of the judicial sale of this land depends upon the question whether the superior court of Snohomish county acquired jurisdiction to render a decree binding upon these complainants. The statute of this state in force at the time relating to the manner of service of a summons prescribed that, if the action be against a minor under the age of 14 years, the summons shall be served by delivering a copy thereof 'to such minor personally and also to his father, mother, guardian, or if there be none within this territory, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed, if such there be.' Laws Wash. T. 1887-88, p. 26. These plaintiffs were all at the time under 14 years of age, and the sheriff's return shows that service of said summons was not made in the manner prescribed by the statute; and the defect of service was not cured by the voluntary appearance of Ferguson, unless he was at that time the legal guardian of said minors. In the will of Ezra Hatch said Ferguson is named as the guardian of said minors, and, after the probate of said will, the probate court of Snohomish county issued letters of guardianship to said Ferguson, erroneously reciting that by said will he was appointed guardian to act without bonds, and it affirmatively appears from the evidence submitted in this case that said Ferguson has not qualified as the guardian of said minors by the execution of a bond. The Code of Washington Territory of 1881 contains the following provisions, and the same were in force as law in this state at the time of the proceedings referred to, viz.:

'Sec. 1604. The probate court of each county, when it shall become necessary, may appoint guardians to minors resident in said county, who have no guardian appointed by will; or who may reside out of the territory, having estate within the county.' 'Sec. 1612. The probate court shall take of each guardian appointed under this act, bond with approved security, payable to the Territory of Washington, in a sum double the amount of the minor's estate, real and personal, conditioned as follows: The condition of this obligation is such, that if the above bounden A B, who has been appointed guardian for C D, shall faithfully discharge the office and trust of such guardian according to law, and shall render a fair and just account of his said guardianship to the probate court of the county of _____, from time to time, as he shall thereto be required by said court, and comply with all orders of said court, lawfully made, relative to the goods, chattels, and moneys of such minor, and render and pay to such minor all moneys, goods and chattels, title papers and effects which may come into the hands or possession of such guardian belonging to such minor, when such minor shall thereto be entitled, or to any subsequent guardian, should such court so direct, this obligation shall be void, or otherwise to remain in full force and virtue, which bond shall be for the use of such minor and shall not become void upon the first recovery, but may be put in suit from time to time against all, or any one or more of the obligors, in the name and (for) the use and benefit of any person entitled by a breach thereof, until the whole penalty

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