Sadler v. Niesz

• Decision Date: 17 November 1892
• Citation: 5 Wash. 182,31 P. 630
• Parties: SADLER ET AL. v. NIESZ ET AL. [1]
• Court: Washington Supreme Court

31 P. 630

5 Wash. 182

SADLER ET AL. v. NIESZ ET AL. ^[1]

Supreme Court of Washington

November 17, 1892

Appeal from superior court, Kitsap county; MORRIS B. SACHS, Judge.

Action of ejectment by Sylvanus N. Sadler and others against U. R Niesz and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Geo. D Blake, for appellants.

Ronald & Piles, for respondents.

STILES, J.

This case was tried as an action at law by the court without a jury. The findings of fact and conclusions of law made by the court, as well as the exceptions to the findings taken by both sides, would appear from notes made upon the papers to have been prepared July 15, 1891; but none of them seem to have been filed with the clerk until August 10th of the same year, and the clerk so certifies. In an action at law tried by the court, no judgment can be rendered until the findings have been filed. Code Proc. § 379.

Therefore in this case, no judgment was rendered until August 10th. This makes the filing of the statement of facts on or before September 3d in time.

The notice of the settlement of the statement was given September 3d for September 17th, and no amendments were proposed by the respondents. There was difficulty in procuring the judge's certificate on the day named, because of his absence from the county wherein the cause was tried; but he subsequently, on the 26th day of September, after notice to the respondent, certified the statement as correct. For the reasons given in Cogswell v Railway Co., (Wash., decided October 11, 1892,) 31 P. 411, we hold that the judge did not lose jurisdiction to make the certificate. The motion to strike is denied.

It is also moved to dismiss the appeal: (1) Because of the insufficiency of the notice. But the objection is simply to the unnecessary fullness of the notice, which cannot be regarded. (2) Because the appeal was not taken six months from the date of judgment. But it was taken within six months from August 10th, and therefore was in time. (3) Because the service of the notice of appeal was made before the notice was filed in the clerk's office. But this is precisely what the Code of Procedure (section 1405 ^[1]) seems to contemplate. And (4) because no motion for a new trial was made. But, if it should be held that a motion for a new trial was a necessary prerequisite to the examination of matters occurring at the trial in this court, the want of such a motion is not ground for dismissal of an appeal. The motion to dismiss is, therefore, also denied.

Sylvanus N. Sadler and Mary E. Sadler were married in the state of Pennsylvania in 1863, and lived together as husband and wife for about eight years, at the end of which time Sadler, who was a seafaring man, left his wife and family, and came to the Pacific coast. About 1873 he took up his residence in Kitsap county, and has resided there ever since. His wife and family remained in the east, unknown to any of his associates and acquaintances in the west. Sadler represented himself to his friends and neighbors, and to purchasers of the real estate involved in this action, as well as purchasers of other land which he acquired, as a widower, whose wife had died a number of years ago, and his statements were generally believed and frequently acted on. In 1883-84 he acquired the lands which are the subject of this action, in part by purchase deeds from private individuals, and in part by pre-emption patent from the United States. Subsequently he sold and conveyed this land to the respondent U. R. Niesz, or his grantors, by numerous deeds, in the body of some of which he stated that he was an unmarried man, and in others, by representations to the officers who took his acknowledgments he caused them to recite in their acknowledgments that he was unmarried. Niesz paid a large consideration for these lands a considerable portion of which went directly to Sadler; and his conveyances were taken without any notice or suspicion that Sadler had a wife living, or that his statements as to his condition were not true. In 1889, some time after the last tract was acquired by Niesz, Mary E. Sadler appeared in the state, saw Niesz, told him that she was Sadler's wife, and asserted her right to an interest in the land, but offered to relinquish all her claim if she were paid the sum of $5,000. This was the first notice that Niesz had of her existence, with the exception that about August, 1889, he heard a rumor that there was a woman who claimed to be Mrs. Sadler. Upon her coming to Washington, Mrs. Sadler took up her residence with her husband, and lived with him for about three months; but after that time, and for a year previous to the trial of the cause, they had lived apart,-he in Seattle, and she in Kitsap county. Upon Niesz's refusal to recognize her claim, or to pay her any money for its relinquishment, this suit was brought by the Sadlers and Worthington and Blake, who were their grantees under deeds made since Mrs. Sadler's arrival in the state, and therefore subsequent to the conveyances to Niesz.

Considering these facts, which were admitted over the strenuous objection of the respondents, the complaint in the case was peculiar. The plaintiffs are named simply as Sylvanus N. Sadler, Mary E. Sadler, William Worthington, and George D. Blake, and its only allegations are that the plaintiffs are seised in fee simple, as tenants in common, of the property, (describing it;) that they are entitled to the possession of said land; and that defendants are in possession, and unlawfully withhold the same from them,-these allegations being barely sufficient to support a naked action of ejectment based upon a purely legal title. No allegation whatever was made of the marital relation existing between Sadler and his wife at the time he acquired this land; the pleader assuming that the various deeds made by Sadler were absolutely void, and that, under the allegations of the complaint, proof of the marriage relation between the Sadlers could be made to show the legal title in Mrs. Sadler, as well as her husband.

The appellants urge numerous objections to the findings of the court, on the ground that they were not justified by the evidence, and it may be conceded that some of the minor and unimportant facts were not sustained by any evidence, but we find that all of the material ones were sustained by some evidence; and, although the testimony on these points may have been weak or contradicted, we are required by the statute to treat them as a special verdict of the jury, which is not to be disturbed for such reasons. The main question of the case is whether the judgment is sustainable upon any conclusion of law deducible from the facts found, and we shall confine the discussion to that point.

The court below found that Sadler was estopped by his representations and warranties; that Mrs. Sadler was estopped by her remaining away from the territory, whereby knowledge of her relation to her husband by people who were likely to deal with him was suppressed, and by her silence when she might have let it be known in the community where Sadler resided that he was a married man, and that Blake and Worthington received their pretended deeds after the estoppel, and with knowledge of the rights of Niesz. The several members of this court are unanimous that the judgment rendered by the court below should be affirmed, but a constitutional majority are unable to agree upon any one ground which should be assigned to sustain it. We therefore order the affirmance, and proceed to give our several reasons for the action taken.

Appellants maintain that there is no estoppel against an attack upon a void instrument, even by the man who executed it, and that therefore, the court erred in its conclusion. They lay it down that the legal title to community real property is in both husband and wife, or that, more correctly speaking, it is in the community which is composed of the husband and wife, and that until the community acted there was no deed, but merely a void paper. The supreme court of the territory, in Holyoke v. Jackson, 3 Wash. T. 235, 3 P. 841, certainly gave countenance to this proposition, in its analysis of the act of 1879. Whether that decision was influenced to any extent by the decisions in other states or not, I am unable to say, as none are cited; but it is true that at least one case ( Zimpelman v. Robb, 53 Tex. 274) is found to fully support the substance of the theory that the title to community real estate is equal in husband and wife, for the court there said: "Under the law as now settled by the former decisions of this court, the titles of the husband and wife to the community property are equal; the only difference being that, during the continuance of the marriage relation, the husband, as the head of the family, has the management, control, and disposition of the property for their joint benefit." But Zimpelman v. Robb is not now sustained by the supreme court of Texas. Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, and 5 S.W. 87, hold that the legal title of the land conveyed to either husband or wife was in that one to whom the conveyance ran, although beneficially the property belonged to both, and that the beneficial interest of the other spouse was an equitable interest only. Zimpleman v. Robb is disposed of with the remark that if it had not appeared that the purchasers from the husband had knowledge that he was a married man, and were therefore bound to take notice of a conveyance from his wife, a different case would have been presented, and a different ruling called for. Other Texas cases to...