Scott v. McNeal

• Decision Date: 02 December 1892
• Citation: 31 P. 873,5 Wash. 309
• Parties: SCOTT v. MCNEAL ET AL.
• Court: Washington Supreme Court

31 P. 873

5 Wash. 309

SCOTT v. MCNEAL ET AL.

Supreme Court of Washington

December 2, 1892

Appeal from superior court, Thurston county; J. W. ROBINSON, Judge.

Action of ejectment by Moses H. Scott against John McNeal and Augustine McNeal. Judgment for defendants. Plaintiff appeals. Affirmed.

N. S. Porter, ( Byron Millett, of counsel,) for appellant.

Root & Mitchell, for respondents.

SCOTT, J.

This was an action of ejectment, brought by appellant against the respondents, to recover possession of certain lands in Thurston county. The defendants claim the same under a deed from Samuel G. Ward, who had purchased the land at an administrator's sale. In March, 1881, the appellant, who was at that time a resident of Thurston county, in this state, (then territory,) mysteriously disappeared. At that time he was the owner of the lands in question, the same being subject to a mortgage given to one T. F. McElroy. After a lapse of over seven years, one Mary Scott, who claimed to be a creditor of the appellant, filed a petition in the probate court of said county, alleging the fact of Scott's disappearance more than seven years previously and that careful inquiry made by his relatives and friends at different times since said disappearance had failed to give any knowledge or information of his whereabouts, or any evidence that he was still living, and alleged that she verily believed him to be dead, and that he had died at the time of his disappearance; that he was never married, and left no last will or testament; and that he left real estate (being the land in controversy) in Thurston county. She also named several minor children of his deceased brother as his heirs; that she was a creditor, etc.; and prayed for an administration of his estate. A notice of the hearing of said petition was given, and, upon the day set for the hearing, witnesses were examined; and the court found from said testimony that said Scott was dead, and appointed an administrator as prayed for.

A number of objections are raised to the probate records, some of which go to the jurisdiction of the court, relating to the sufficiency of the petition, and the posting of notices. Appellant alleges that the petition was defective, in that it did not state that said Scott was a resident of Thurston county at the time of his death. The allegation in the petition is "that one Moses H. Scott, heretofore a resident of the above-named county and territory, [Thurston county, Washington Territory,] mysteriously disappeared some time during the month of March, A. D. 1881, and more than seven years ago." We think this was sufficient, as the word "heretofore" should be held to relate to the time of his disappearance.

He also objects to the proof of the posting of notices, because it appears from the affidavit of the person posting the same that he had posted three of the notices in three public places in Thurston county, as the law required, without stating where they were posted. At the hearing, however the court found that due notice of said hearing had been posted in three public places, as required by the statute ^[1] and we think the petition, notice, and proof were sufficient to give the probate court jurisdiction.

The estate was administered, step by step, down to a sale of the lands to said Ward, and the records were introduced in evidence, against numerous objections made by the appellant. Those objections, however, were mainly aimed at irregularities in the proceedings which did not affect the jurisdiction of the court, and appellant was not in a position to take advantage of them in a collateral action. In addition to the records of the probate court in said matter a deed from Ward to defendants was also...