Phillips v. Tompson

• Decision Date: 16 April 1913
• Citation: 73 Wash. 78,131 P. 461
• Parties: PHILLIPS et al. v. TOMPSON et al.
• Court: Washington Supreme Court

131 P. 461

73 Wash. 78

PHILLIPS et al. v. TOMPSON et al.

Supreme Court of Washington

April 16, 1913

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Annie B. Phillips and others against Louise A. Tompson and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Bell &amp McNeil and Roney & Loveless, all of Seattle, for appellants.

Hastings & Stedman and Thomas H. Bain, all of Seattle, for respondents.

CROW C.J.

This action was commenced by Annie B. Phillips, Charles G Phillips, Jr., and Josephine R. Ker, heirs at law of Charles G. Phillips, deceased, against Louise A. Tompson and other defendants, to quiet title to 80 acres of land in King county and redeem the same from a mortgage lien. A demurrer to their third amended complaint was sustained. They declined to plead further, and have appealed from an order of dismissal.

The single question presented is whether the third amended complaint states a cause of action. It is voluminous, details at length judicial proceedings hereinafter mentioned, and in substance states the following facts: On April 21, 1891, one Annie Mr. Phillips, a widow, now deceased, became the owner in fee simple of the 80 acres of land in the third amended complaint described, which she mortgaged to respondent Louise A. Tompson. On October 15, 1900, Annie A. Phillips died intestate leaving Charles G. Phillips, a son who resided in the state of Ohio, as her only heir at law. On October 1, 1904, Louise A. Tompson commenced cause No. 44,558 in the superior court of King county against Annie M. Phillips to foreclose the mortgage deed. The pleadings indicate that at the date of the commencement of the foreclosure action Louise A. Tompson was ignorant of the previous death of Annie M. Phillips. On or about May 11, 1905, C. H. Rollins was appointed and qualified by the superior court of King county as administrator of the estate of Annie M. Phillips, deceased, and on May 13, 1905, was substituted as defendant in the foreclosure action, which thereafter was entitled 'Louise A. Tompson, Plaintiff, v. C. H. Rollins, Administrator of the Estate of Annie M. Phillips, deceased, substituted for Annie M. Phillips, defendeant.' The administrator appeared, filed an answer, a decree of foreclosure was entered, sale was made by the sheriff of King county, and on July 9, 1906, a sheriff's deed for the land was executed and delivered to Louise A. Tompson. On August 1, 1908, Louise A. Tompson, claiming title to the land, instituted in the superior court of King county a second action, cause No. 62,411, to quiet her title. In this action she was plaintiff, while Charles G. Phillips, the unknown heirs of Annie M. Phillips, deceased, and all other persons unknown claiming any right, title, claim, or interest in or to the real estate were named as defendants. She alleged that at all times in her complaint mentioned, and prior to June 26, 1907, she was the owner of the land; that on June 26, 1907, she had sold and by warranty deed had conveyed a portion of the land; that Charles G. Phillips and the unknown defendants claimed some right, title, or interest in or to the premises, but that their claim, if any, was subordinate to her title. She asked a decree quieting her title as of the date of June 26, 1907, and further asked that the defendants known and unknown, and each and all of them, be forever barred and foreclosed from any right, title, or interest in or to the land. Service by publication was had; the first publication being made on August 7, 1908. On that date Charles, G. Phillips, the known and named defendant, died intestate leaving the appellants and plaintiffs herein, Annie B. Phillips his widow, Charles G. Phillips, Jr., and Josephine R. Ker, his children, as his sole heirs at law. There is no suggestion that Louise A. Tompson was aware of the death of Charles G. Phillips, or that she knew of the existence of appellants as his heirs at law at any time prior to the final decree in the action to quiet title, or at any time prior to April, 1910. On November 4, 1908, after entry of default, findings of fact and conclusions of law were made and entered in cause No. 62,411, upon which final decree was entered quieting the title of Louise A. Tompson in and to all of the real estate as prayed in her complaint, and further decreeing that the defendants, Charles G. Phillips, the unknown heirs of Annie M. Phillips, deceased, and all other persons unknown, had no right, title, interest, claim, lien, or estate in or to the land, or any part thereof. The appellants herein had no knowledge of the pendency of the action to quiet the title, commenced by Louise A. Tompson, until after entry of the decree in her favor.

The complaint in the instant case further shows that the respondents herein, Roscoe C. Nisonger, Minnie Olive Barton, James C Barton (her husband), Maggie Hiltman, Charles J. Hiltman (her husband), and Hewitt-Lea Lumber Company, a corporation, have acquired title and interests in and to portions of the land, having deraigned the same from Louise A. Tompson subsequent to the foreclosure and sale. The land is vacant, unimproved, and unoccupied. Appellants, who are nonresidents of this state, first learned of the foreclosure decree and sale, and the action to quiet title, in March, 1910. They then secured the services of an attorney to represent them, and on or about April 25, 1910, through their attorney, instituted an action in ejectment in the superior court of King county in the name of Annie M. Phillips, the original owner and mortgagor then deceased, as plaintiff, to recover the land. Appellants claim that they were ignorant of the law, that they knew nothing of court procedure, and that they relied upon the advice of their attorney. Afterwards, in October, 1910, appellants discharged their attorney who had commenced the action in ejectment, and employed their present attorneys, who on April 5, 1911, instituted the present action. Appellants claim title as widow, children, and sole heirs at law of Charles G. Phillips, deceased, the son and sole heir at law of the original owner and mortgagor, Annie M. Phillips, deceased. They contend that as to them the foreclosure was void; that Charles G. Phillips, who at the time of the foreclosure was the sole heir at law of Annie M. Phillips, deceased, was a necessary party to the foreclosure action; that he was not made a party, was not served with process; that his title was never divested; that appellants hold title as his heirs at law; that the decree in cause No. 62,411, purporting to quiet title in Louise A. Tompson, is void as to appellants, for the reason that they were not made parties defendant, and were not served with process; that they still hold title to the real estate subject to the mortgage lien; that they are entitled to redeem; and that they have tendered to respondent Louise A. Tompson the amount due on her mortgage.

It may be conceded without any citation of authority that the foreclosure and sale did not divest the title of Charles G. Phillips, of whom appellants are the heirs at law; yet the respondent held an interest in and to the land, did obtain color of title by the sheriff's deed, and claimed the fee-simple title as alleged in her complaint.

The controlling question on this appeal is whether the fee-simple title was legally adjudged to, quieted and vested in, her and her grantees by virtue of the final decree entered in cause No. 62,411. Her complaint therein, which stated a cause of action and alleged title in her, made no mention of the foreclosure and sale; and the decree, which is regular upon its face, is valid if the court had jurisdiction to enter the same, and is not subject to impeachment in this collateral action. 23 Cyc. 1055, 1056.

The action to quiet title was a proceeding in rem, to which Charles G. Phillips, the unknown heirs of Annie M. Phillips deceased, and all other persons unknown claiming any interest in the real estate, were made defendants, under sections 229-232, Rem. & Bal. Code. From necessity, statutes of the character of the sections cited have been enacted in many states, in order that titles may be quieted, when clouded by adverse claims of unknown heirs, and unknown parties, who may be without the jurisdiction of the state in which the real estate is located. The essential purpose of such statutes is to provide that unknown heirs and claimants may be served by publication without alleging their names, in order that they may receive the most effective notice possible, that they may appear and plead their claims, and that the court having jurisdiction of the real estate may determine and quiet the title. The state has power to thus provide for an adjudication of adverse rights or claims of persons in or to real estate situate within its borders, even though such claimants may be unknown and are without the jurisdiction of the court. Titles to real estate should not be subjected to continuous clouds. A state is under no compulsion to suffer titles to real estate situated within its borders to remain clouded for an indefinite period for the want of a proper method of serving process upon unknown claimants, or a proper procedure to quiet the same. Statutes similar to ours have been sustained with marked uniformity. The substance of appellants' objection to the decree quieting title is the want of service upon, or jurisdiction over, them. Jurisdictional objections to actions to quiet title against unknown heirs and unknown parties, where service is made by publication, have frequently been made upon the ground that actions quia timet in respect to land are equitable in their nature, that equity acts in personam, and that personal jurisdiction of defendants...