Schlarb v. Castaing

• Decision Date: 15 September 1908
• Citation: 97 P. 289,50 Wash. 331
• Court: Washington Supreme Court
• Parties: SCHLARB et al. v. CASTAING et al.

97 P. 289

50 Wash. 331

SCHLARB et al. v. CASTAING et al.

Supreme Court of Washington

September 15, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Lillian Schlarb and others against Louis Castaing, and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Leo & Cass and L. C. Whitney, for appellants.

Boyle, Warburton, Quick & Brockway, for respondents.

FULLERTON, J.

This is an action for the partition of real property. The facts out of which the controversy arises are in substance these: On September 24, 1892, William A. Freeman and his wife, Belle Freeman, being then the owners of the property in question mortgaged the same to Robert Maynard to secure the repayment with interest of a loan of $1,500 made to them by Maynard. Mr. Freeman died intestate on February 2, 1894, leaving as his heirs at law two daughters and two sons, children of himself and Belle Freeman. Mrs. Freeman was shortly thereafter appointed administratrix of his estate. The mortgage debt was left unpaid, and was purchased from Maynard by Louis Castaing some time during the year following Mr Freeman's death. In 1898 Castaing brought a suit to foreclose the mortgage. To this suit he made Mrs. Freeman a party both in her official and individual capacities, but did not make the heirs at law of Mr. Freeman parties thereto. The foreclosure proceeded to a judgment and order of sale against the entire property, and the property was sold thereunder to Louis Castaing for the full amount of the mortgage debt interest, and costs. At the time of sale a sheriff's certificate of sale showing a foreclosure of the property was issued and delivered to Castaing, and later, after the time for redemption had expired, a sheriff's deed was executed and delivered to him. Mr. Castaing entered into possession of the property immediately on receiving the sheriff's certificate of sale, and from that time to the commencement of the present action has maintained open and notorious possession of the property, paying all state county, and municipal taxes that have been assessed thereon, such possession continuing for a period of more than seven years next after possession was taken. At the time the foreclosure proceedings were instituted two of the heirs of William A. Freeman were minors. The elder of these reached the age of majority some four years after his father's death, while the younger was still a minor at the time of the institution of the present action. The appellants in the action at bar are the children of William A. Freeman. They sue to recover a half interest in the land, on the theory that their father's interest and title therein descended to them upon his death, and were not cut off by the foreclosure proceedings had by Castaing against their mother. In substance they allege that they are the owners of an undivided one-half interest in the property, holding the same as tenants in common with the respondents; that the respondents are in possession thereof, and deny that the appellants had any title or interest therein, and refuse to account to them for any share of the rents and profits of the property. To the complaint the respondents make two contentions: First, that the interests of the appellants were cut off by the foreclosure proceedings; and, second, that any right to recover, conceding that their interests did survive the foreclosure, was barred by the seven-year statute of limitations. The trial court held with the respondents on the last ground stated, and entered judgment to the effect that the appellants take nothing by their action. This appeal is from that judgment.

While there is a controversy between counsel as to the respective relations of the parties to the property, and their rights growing out of the foreclosure sale, we do not think the questions suggested merit extended discussion. Since the property was the community property of William A. Freeman and his wife, Belle Freeman, it passed on the death of Mr. Freeman one-half of Mrs. Freeman as the survivor of the community and one-half, share and share alike, to the appellants as the sole legitimate issue of the body of Mr Freeman, and that these several persons, as long as they retained title to the property, held it as tenants in common. It must follow, also, that the appellants were necessary parties to the foreclosure proceedings if their interests in the property were to be cut off, and, as they were not made parties thereto, their interests were not affected by it; that the only effect of that proceeding was to pass the title of the one-half interest of Mrs. Freeman to the purchaser at the foreclosure sale, and to make such purchaser a tenant in common in the property with the appellants. We cannot think, however, that, when the purchaser...