Rogers v. Miller

• Decision Date: 20 November 1895
• Citation: 42 P. 525,13 Wash. 82
• Parties: ROGERS ET AL. v. MILLER. [1]
• Court: Washington Supreme Court

42 P. 525

13 Wash. 82

ROGERS ET AL. v. MILLER. ^[1]

Supreme Court of Washington

November 20, 1895

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by E. R. Rogers and another against Fred C. Miller to quiet title. From a decree for plaintiffs, defendant appeals. Affirmed.

Ira A Town and W. W. Likens, for appellant.

Sharpstein & Blattner, for respondents.

GORDON J.

This appeal is from a decree of the superior court of Pierce county quieting respondents' title to certain real property. It appears from the record that, some time in 1850 William B. Wilton settled upon the premises in dispute under the act of congress of September 27, 1850 known as the "Donation Act." On April 7, 1855, he filed his notification. On May 29, 1869, he submitted his final proof to the register and receiver of the United States land office at Olympia, which proof was accepted by them, and certificate for patent duly issued. On August 27, 1871, a patent for said land was issued. On January 9, 1860, after the expiration of the period of residence required by the donation act, Wilton and wife mortgaged the premises to S McCaw and respondent Rogers to secure the payment of $601 due on January 1, 1862. Thereafter proceedings were instituted in the district court of the Third judicial district of Washington Territory, and on the 25th day of May, 1866, a decree of foreclosure was duly made and entered therein. Pursuant to said decree said mortgaged premises were sold, said mortgagees becoming the purchasers at said sale, which sale was thereafter confirmed by an order of said court, and a deed to said premises duly executed by the sheriff. Subsequently respondent Littlejohn succeeded to all of the interest of said McCaw in said premises. It further appears that, some time in 1861 or 1862, said Wilton removed from the territory of Washington to Mexico; that thereafter his whereabouts was unknown to his former friends and acquaintances, who believed him dead. On the 18th of August, 1890, said Wilton conveyed said premises to the appellant, Miller. The lower court found that the respondents "are now, and for a period of more than 20 years preceding the commencement of this action had been, in the possession" of the premises in question, and that they "are the owners in fee each of an undivided one-half of said premises; that the claim of the defendant [appellant] to said premises is without any right whatever, and the said defendant [appellant] has neither estate, right, title, nor interest whatever in said land or any part thereof."

The appellant contends that respondents did not plead adverse possession under color of title, and that the lower court erred in permitting any evidence thereof to be given. This contention we think is unfounded. The allegation of ownership in fee entitled the respondents to introduce proof of any title, including that acquired by adverse possession. Such was the holding of this court in Raymond v. Morrison, 9 Wash. 156, 37 P. 318, where it was said: "It would only have been necessary for them to allege that they were the owners in fee, and lawfully seised and possessed of it, in order to state a good title in themselves. They could then have proved upon the trial that their title was based upon an adverse possession maintained for the requisite period, since such possession is now generally held to confer upon the possessor the absolute legal title in fee of the estate." The evidence of adverse possession was competent and sufficient. It is undisputed that for 25 years last past the respondents regularly listed said land for taxation; that it has, during all of said time, been assessed to them, and the taxes thereon have for said entire period been paid by them; that they continually and without interruption exercised the usual acts of ownership, selling timber to different persons and refusing to permit others to take timber therefrom, and suffering parties to go upon the land and refusing to extend like privileges to others, and for a portion of the time the property had been in the actual possession of their agent. We have examined the evidence submitted below and think it amply sufficient to sustain the finding of the lower court in this regard, and that the case made by the evidence is much stronger than that presented by the record in Land Co. v. Dibble, 4 Wash. 764, 31 P. 30, which was there held sufficient.

Second. The description of the premises in the notification filed by Wilton in 1855 conflicts with the description given in the mortgage to McCaw and Rogers, heretofore mentioned, and the description contained in the certificate and patent also conflicts with both the description in the mortgage and notification; and it is contended by the appellant that the mortgage does not cover any of the premises described in the notification, excepting only 10 acres. He further contends that if this was due to a mistake in describing the premises in the mortgage, the latter should have been reformed prior to foreclosure, and that a deed founded upon such false and erroneous description is wholly insufficient to give color of title. From the proof it satisfactorily appears that Wilton entered but one piece of land under said donation act, and had but one "land claim"; that his settlement thereon was made prior to the survey. In said mortgage the premises are described as "all of that certain parcel or quarter section of land known as 'Wilton's Land Claim,' situated on what is known as the 'Narrows,' at the entrance of Puget Sound, south and east side marked and bounded," etc. Then follows a more particular description. The act of congress in question authorized the claimant, after the surveys were extended, to make his claim conform as nearly as practicable to legal subdivisions. What he...