Krutz v. Isaacs

• Decision Date: 18 July 1901
• Citation: 25 Wash. 566,66 P. 141
• Parties: KRUTZ v. ISAACS et al.
• Court: Washington Supreme Court

66 P. 141

25 Wash. 566

KRUTZ v. ISAACS et al.

Supreme Court of Washington

July 18, 1901

Appeal from superior court, Walla Walla county; Thomas H. Brents Judge.

Action by Harry Krutz against Lucie Isaacs and others. From a judgment dismissing plaintiff's complaint on his declining to further plead after an order sustaining a demurrer to the complaint, he appeals. Reversed.

C. B. & Wm. H. Upton, for appellant.

Thomas & Huffman, for respondent.

HADLEY J.

This action was brought by the appellant against respondents to recover possession of certain real estate situated in Walla Walla county, and also to remove a cloud therefrom, and to quiet appellant's title. The complaint alleges, in substance: That on the 19th day of May, 1894, on Williams was the owner of said land and in the possession thereof, and that on said day, for a valuable consideration, he conveyed the same by warranty deed to plaintiff, and put plaintiff in exclusive possession of the whole thereof. That plaintiff ever since has been, and now is, the owner of said land, and entitled to the immediate and exclusive possession of the whole thereof. That said deed was duly recorded on the 24th day of May, 1894. That on the 2d day of October, 1893, one Henry P. Isaacs filed a complaint in the superior court of Walla Walla county against said Williams, in which he prayed for judgment for money only. That no service of any summons under said complaint was ever made, either actually or constructively, or at all, upon said Williams, and he at no time had any knowledge or notice of the pendency of said action, or of any of the proceedings therein. That said Williams never appeared or gave notice of appearance in said action, either in person or by attorney, and said court never acquired jurisdiction of his person, or of the subject-matter of said action, or of said land. That all of said facts were at all the times mentioned well known to said Isaacs and to all the defendants. That, nevertheless, the then sheriff of said county made in said action the two returns following, to wit: 'I, C. C. Gose, sheriff of Walla Walla county, Washington, do hereby certify that I served the within summons on the within-named defendant, F L. Williams, in Walla Walla county, Washington, on the 11th day of October, 1893, by then and there delivering to and leaving with L. D. Robertson, at the house of F. L Williams' usual place of abode, he being a person of suitable age and discretion, then resident therein, a copy of said summons, duly certified to be such true copy by B. L Sharpstein, one of the attorneys for plaintiff; and at the same time and place with said copy of said summons I delivered to and left with the said L. D. Robertson personally a true copy of the complaint in said action, duly certified to be such copy by B. L. Sharpstein, one of the attorneys for plaintiff; the said defendant not being found after diligent search.' 'I, C. C. Gose, Sheriff of Walla Walla county, state of Washington, hereby certify that I served the within summons on the within-named defendant, F. L. Williams, in Walla Walla county, state of Washington, on the 11th day of October, 1893, by then and there delivering to L. D. Robertson, at the house of the said F. L. Williams' usual abode in said county of Walla Walla, the said F. D. Robertson being a suitable person over the age of 21 years, a true copy of said summons, duly certified to be such true copy by B. L. Sharpstein, one of the attorneys for the plaintiff; and at the same time and place with said copy of said summons I delivered to the said L. D. Robertson, a person of suitable age and discretion, at the house of the usual place of abode of the said defendant, in said county, personally, with said copy of said summons, a true copy of the complaint in said action, duly certified to be such copy by B. L. Sharpstein, one of the attorneys for the plaintiff; the said defendant not being found after diligent search.' That each and both of said returns were erroneous and false, in this, to wit: That the place where said sheriff delivered to said Robertson copies of said summons and complaint was not the house or usual place of abode of said Williams, but was the house and abode of said Robertson only; that said Williams never did at any time abide at said house where said copies were delivered as aforesaid, but on said 11th day of October, 1893, and at the time of said alleged service of said summons and complaint, and for a long time prior and subsequent thereto, said Williams was absent from the state of Washington, and had his house and his usual abode without said state; that said Robertson was not a suitable person in the premises, in that he did not reside at, and was never present at, the usual place of abode of said Williams. That, notwithstanding the premises, on November 6, 1893, said court, by the procurement of said Isaacs and his attorneys, purported to make and entered in its journal a certain order wherein said court purported to adjudge that said Isaacs have and recover from said Williams in the action aforesaid the sum of $487.87, together with attorney's fees and costs. That on October 7, 1897, a writ of execution issued from said court on said pretended judgment, and was levied on said land, and thereafter, on the 6th day of November, 1897, the sheriff of said county, by alleged authority of said writ, purported to sell said land to said Isaacs for the sum of $771.40, credited on said pretended judgment, and afterwards said sheriff issued to said Isaacs his deed as such sheriff, wherein and whereby he purported to convey said land to said Isaacs. That afterwards, and prior to the commencement of this action, said Isaacs, claiming under said sheriff's deed, unlawfully and forcibly entered upon and took possession of said land, and the whole thereof, and unlawfully and forcibly ousted and ejected the plaintiff therefrom, and until his death continued unlawfully and forcibly to hold possession of said land, and withhold the same from plaintiff. That said Henry P. Isaacs died intestate on the 14th day of July, 1900. That the defendant Lucie Isaacs is the widow, and the other defendants are the children, respectively, of said Henry P. Isaacs, and that said defendants are the sole heirs of said Henry P. Isaacs, and are in possession of said land, and still continue to unlawfully and forcibly hold possession thereof, claiming to own the same under said sheriff's deed, and refuse to deliver possession to plaintiff, although possession has frequently been demanded. It is further alleged that administration upon the estate of said Henry P. Isaacs is now pending, and that certain of the defendants are the duly-qualified and acting administrators thereof; and, further, that neither plaintiff nor said Williams had any knowledge or notice of the matters alleged prior to May 20, 1894, or prior to the delivery of said sheriff's deed to said Isaacs after the sale in 1897. The complaint concludes with a prayer for judgment awarding plaintiff possession of said land, and adjudging said writs, returns, pretended judgment, and sheriff's deed, and every claim asserted by defendants as aforesaid, to be a cloud upon plaintiff's title to said land, and removing all said clouds, and adjudging plaintiff to be the sole owner of said land. To said complaint the defendants interposed a demurrer upon the following grounds: (1) That the court has no jurisdiction of the subject-matter of the action; (2) that said action has not been commenced within the time limited by law; (3) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was, by the court, sustained, to which ruling plaintiff excepted. The plaintiff elected to stand upon his complaint, and declined to further plead. Thereupon judgment dismissing the action and for costs against the plaintiff was entered. From said judgment plaintiff has appealed.

This action is brought under section 5500, 2 Ballinger's Ann Codes &St., which provides that in an action for the recovery of the possession of real estate the plaintiff 'may have judgment in such action quieting or removing the cloud from plaintiff's title.' In effect this provision existed in territorial days, but the statute was enlarged in 1890. The territorial court interpreted the former statute in Smith v. Wingard, 3 Wash. T. 291, 298, 13 P. 717, 719, as follows: 'The action therein contemplated is the common-law action of ejectment, with the added incident of determining in the action the paramount legal or equitable title, and with the departure of permitting the action to be brought against one not in possession, but who claims title to or interest in the land.' To the same effect is the decision of this court in Reichenbach v. Railway Co., 10 Wash. 357, 38 P. 1126. Section 5501, 2 Ballinger's Ann. Codes & St., provides as follows: 'All actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, open and notorious possession for seven successive years, having a connected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid, but when the possessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title.' The complaint in this case shows that the sheriff's sale under which respondents claim title was...