Stevens v. Ferry

• Decision Date: 26 October 1891
• Citation: 48 F. 7
• Parties: STEVENS v. FERRY et al.
• Court: United States Circuit Court, District of Washington, Northern Division

48 F. 7

STEVENS v. FERRY et al.

United States Circuit Court, D. Washington, Northern Division.

October 26, 1891

This is a suit to settle a controversy as to the title to certain lands situated near Anacortes, in this state, arising out of the following facts: In the year 1873, the complainant, being then the owner of the lands, as security for a loan of $2,000, gave a promissory note and a mortgage covering said lands, which were then within the county of Whatcom, and are now in the county of Skagit. Said mortgage also included real estate situated in Thurston county. As the courts of the territory were organized at the times herein referred to Thurston county was in the second judicial district, and terms of the territorial district court were held at Olympia for a subdistrict embracing Thurston, Lewis, Chehalis, and Mason counties. Whatcom county was in the third judicial district, and terms of the district court were held at Port Townsend for a subdistrict embracing Whatcom and other counties. In October, 1874, a suit was commenced by the owner and holder of the note and mortgage against the complainant in the district court at Olympia, to recover a judgment upon the note, and for a decree of foreclosure and order of sale of all the lots and tracts of land included in said mortgage. The complainant, Stevens, voluntarily appeared and submitted to the jurisdiction of the court in said cause, and a judgment and decree as prayed for were rendered against him December 17, 1874. In pursuance of said decree the land in controversy was sold by the sheriff of Whatcom county in July, 1875; and the sale was confirmed by an order of the district court at Olympia, December 8, 1875, by which the sheriff of Whatcom county was directed to execute a deed to the purchaser at the expiration of six months from the date thereof, unless the land should be within that period redeemed. There has been no redemption made or attempted, and the sheriff's deed was made and delivered as directed. The defendants claim to own the land, and deraign their title from the judicial sale under said foreclosure proceedings. In behalf of the complainant it is alleged that the district court at Olympia had no jurisdiction to order or confirm a sale of land in Whatcom county; that the sale was not made subject to redemption, and in other respects the proceedings were not in conformity to the requirements of the statutes of the territory governing execution sales of real estate; that for these reasons the sale was and is void; and, further, that there is no proof of a valid sheriff's deed having been given. Other points raised by facts alleged in the pleadings of the defendants have been discussed, but require no further mention in deciding the case, according to my view of it.

B. F Dennison and Howe & Corson, for complainant.

White & Munday, Battle & Shipley, Preston, Carr & Preston, and W. Lair Hill, for defendants.

HANFORD J., (after stating the facts as above.)

The courts of Washington Territory were created by Act. Cong. March 2, 1853, entitled 'An act to establish the territorial government of Washington.' 10 U.S.St.p. 172. Section 9 of the act contains the following among other provisions:

'The judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace. * * * The said territory shall be divided into three judicial districts, and a district court shall be held in each of said districts, by one of the justices of the supreme court, at such times and places as may be prescribed by law. * * * The jurisdiction of the several courts herein provided for, both appellate and the original, and that of the probate courts and justices of the peace, shall be as limited by law; * * * and the said supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction.'

By the sixth section of the act, general legislative power is given to the territorial legislature, and it is not questioned but what its power to define and limit the jurisdiction of the district courts, as to subject-matter, parties, and territory, was ample. The object of the organic act in providing for a division of the territory into districts was to serve public convenience, and divide the labors of the judges. It was contemplated that the business of the people residing in each district would be transacted in the court for that district; that crimes would be cognizable in the court for that district wherein committed; and that citizens would be required to serve as jurors only in the districts including their homes; but it was not intended to so limit the district courts as to make them mere local courts incapable of taking original jurisdiction as courts of the territory, with power to issue judicial process and mandates, and enforce the same, in all places under the government of the territory. The continued exercise of the power during the entire history of the territorial government, a period of more than 35 years, is sufficient proof that the district courts of Washington Territory were courts of superior and general jurisdiction. It was the constant practice of said courts to issue warrants, attachments, and by such process to cause the arrest of persons and seizure and sale of property in counties and districts other than in which the court issuing the same was held. Such proceedings were authorized by statutes, and the lawfulness thereof cannot be doubted. The case of Ableman v. Booth, 21 How. 506, cited by counsel for plaintiff, is authority for the proposition that the process of a state court or judge has no authority beyond the limits of the sovereignty which confers the judicial power; a true proposition, but no more true than the converse of it, that a court of superior and general jurisdiction may, if authorized by the legislature, adjudicate the rights of parties before it as to property, real or personal, situated anywhere within the boundaries of the state, and enforce its decree by a sale and transfer of the title to such property. Under the laws of Washington Territory a mortgage only created a lien, and entitled the mortgagee to have the mortgaged premises subjected to sale under a decree of court for satisfaction of the debt, (Laws Wash. T. 1869, p. 130, Sec. 498: Laws Wash. T. 1873, p. 134, Sec. 496;) hence there could be no proceeding for a strict foreclosure. A suit for a decree of foreclosure is a proceeding in rem, as well as in personam, and therefore cannot be properly brought elsewhere than in a court having local jurisdiction over the premises. 2 Jones, Mortg.§ 1444; Wood v. Mastick, 2 Wash.T. 69, 3 P. 612. The...