Puget Sound Nat. Bank of Seattle v. Fisher

• Decision Date: 23 March 1909
• Citation: 52 Wash. 246,100 P. 724
• Court: Washington Supreme Court
• Parties: PUGET SOUND NAT. BANK OF SEATTLE v. FISHER et al.

100 P. 724

52 Wash. 246

PUGET SOUND NAT. BANK OF SEATTLE v. FISHER et al.

Supreme Court of Washington

March 23, 1909

Appeal from Superior Court, Jefferson County; R. B. Albertson Judge.

Action by the Puget Sound National Bank of Seattle against H. M Fisher, trustee, and others. From a judgment for plaintiff defendants appeal. Affirmed.

E. M. Farmer and D. C. Cross, for appellants.

Harold Preston, for respondent.

DUNBAR, J.

Protection Island, upon which the land which is the subject of this controversy is situated, is an island in the Straits of Juan de Fuca, lying about two miles off the shores of Clallam county, in front of, and a little to the west of, the entrance to Port Discovery Bay. At the time of the organization of Washington territory Clallam county was a part of Jefferson county. The first territorial Legislature undertook to create Clallam county out of Jefferson county and division lines were sought to be established. Subsequent Legislatures, commencing with the Legislature of $1857-58, undertook by different acts to establish the boundary line between Clallam and Jefferson counties. The description of the northwest boundary line of Jefferson county was incorporated into the general description of the boundary of the two counties by the Legislature of 1867 (Laws 1866-67, p. 45), and the Legislature of 1869 again passed an act defining the county lines of several counties in the territory. The boundaries of Jefferson and Clallam counties were defined therein in the language of the act of 1867. The same language has been carried down through the different subsequent codifications of the statutes, and now reads as in the act of 1867. The respondent's title is deraigned from the original purchasers of the land, and the appellants claim title through a tax deed issued out of the superior court of Clallam county. For many years taxes were levied and collected on this land only by Jefferson county, but in 1891 Clallam county assessed part of Protection Island. In 1892 the island was assessed only in Jefferson county. From 1893 up to the present time the officials of Clallam county have assessed the island as a part of Clallam county. The taxes were paid by the owner of the land to Jefferson county only. A tax certificate of delinquency for the years 1893-95 against said tracts of land was foreclosed, judgment and order of sale were subsequently entered, and, in accordance with such transactions, the land was sold to Clallam county, and a deed issued therefor. Subsequently Clallam county sold said land; H. M. Fisher, the trustee of the appellants in this case, becoming purchaser therefor, it being expressly provided in the deed that there was intended to be conveyed thereby only such right, title, and interest in and to said lands as such Callam county might have. This action was brought to remove the cloud from respondent's title. Appellants, defendants in the court below, objected to the admission of the testimony, and demurred to the complaint on the ground that it did not state a cause of action, and that the court had no jurisdiction to try the cause. The demurrer being overruled, the appellants answered, setting up their title as acquired through Clallam county, and alleging that the land was duly assessed in Clallam county and was a part of Clallam county. The court granted a decree removing from respondent's title the cloud cast thereon by the execution and record of the said deed of Clallam county the Jefferson county, and quiting the title of the respondent against the appellants and each of them, and all persons claiming under them or either or them. From this judgment, this appeal is taken. tThere are three principal contentions in this case: (1) That the court had no jurisdiction to proceed with the trial of the cause, for the reason that it was an attempt to annul the judgment of a court of the same power and jurisdiction as the court before which this action was brought; (2) that the plaintiff, being a national bank, had violated the laws of Congress in regard to holding real estate as security, and that its title to the land thereby failed; (3) that the court had no right to admit contemporaneous testimony to determine the boundary line, and generally that the testimony did not sustain the findings of the court.

As to the first proposition, it is not necessary to discuss the question whether the county of Clallam would be bound by a judgment in this case. It is alleged in the complaint that the respondent is the owner of the land, that the land is situated in Jefferson county, and that the deed complained of constitutes a cloud upon its title. The judgment would certainly be binding upon all the parties who appeared in this action, and that is sufficient upon the question of jurisdiction.

The second proposition of appellants has been set at rest by the Supreme Court of the United States in the case of National Bank v. Matthews, 98 U.S. 621, 25 L.Ed 188, where, after a review of the authorities, it was decided that, where a corporation was incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, that the sovereign alone can object, and that it is valid until assailed in a direct proceeding instituted for that purpose; the court citing Sedgwick, State & Const. Sonstr. § 73: 'Where it is a simple question of authority to contract, arising either on a question or regularity of organization or of power conferred by the charter, a party who had the benefit of the agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and injust to permit a defendant to repudiate a contract, the benefit of which he retains.' This case was followed by National Bank v. Whitney, 103 U.S. 99, 26 L.Ed....