(10 Wash. 621) KROMER et al. v. FRIDAY et al. (EVERETT LAND CO., Intervener). (Supreme Court of Washington. Jan. 14, 1895.)

PARTITION SALE-VALIDITY-INFANT DEFENDANTS -ADMISSIONS BY GUARDIAN-PETITION-NOTICE OF SALE HOMESTEAD ENTRY-ISSUE OF PATENT -RIGHTS OF WIFE-COMMUNITY PROPERTY.

1. Where the notice of sale of land in partition proceedings was not published until after the findings of the court were made, the fact that the first publication was made before the decree in partition was signed constitutes a mere irregularity.

2. At the time his homestead patent issued testator was married. Upon his death he devised the homestead to his minor son, and $200 to his wife, who accepted it. Long after the final distribution, the wife for the first time claimed one-half of the homestead as her share of the community property, and thereafter deeded such interest to F., who sued for a partition. Held, that the guardian of the minor son was justified in admitting in his answer that said homestead was community property. Stiles, J., dissenting.

3. Under Code 1881, § 553, providing that in partition the interest of all persons in the property shall be set forth specifically, so far as known to plaintiff, a complaint in partition alleging the extent of plaintiff's interest in the property, and that of defendants as he understands it, and showing that the parties are tenants in common, gives the court jurisdiction.

4. Where the guardian of infants having an interest in property was personally served with process in partition proceedings, and he answered, and was represented by counsel throughout such proceedings, the infants are bound thereby.

5. Where an applicant for a homestead marries after making final proofs, and before the patent issues, upon the issuance of the patent the legal title to the homestead vests in the community. Stiles, J., dissenting.

6. A homestead is taken "by purchase," within the meaning of the territorial laws relating to community property, so as to vest the same in the community.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Victor E. Kromer and others, infants, by L. H. Cyphers, their guardian ad litem, against Frank P. Friday and others. The Everett Land Company intervened. From a judgment dismissing their complaint, plaintiffs appeal. Affirmed.

Ronald & Piles, A. F. Burleigh, and Lichtenberg, Shepard & Lyon, for appellants. Crowley, Sullivan & Grosscup, A. D. Austin, and Brown & Brownell, for respondents.

SCOTT, J. The plaintiffs have appealed from a decree of the superior court of Snohomish county dismissing their complaint, and adjudging, in effect, that they have no title to the property in controversy, which is a certain tract of land of about 147 acres, in the present city of Everett. The complaint set up title in fee in the plaintiff Victor E. Kromer, with subsidiary interests for a limited period in his three sisters, Emma and Mattie Kromer, who were joined as plaintiffs, and Alice Kromer, who declined to join as plaintiff, and was made a defendant. The title is claimed by the plaintiffs through

their deceased father, Erskine D. Kromer, by will. The complaint attacks, and seeks to vacate, on the grounds of lack of jurisdiction and fraud, a decree of sale and deed in partition in said court under which the defendants Rucker and Hewitt and the Everett Land Company, intervener, claim title in fee to certain interests in said lands, and joins the defendants Friday, Holland, and Plaskett, on account of their connection with said partition and participation in the alleged fraudulent proceedings. The answers of the defendants Rucker and Hewitt, with their counterclaims, and the intervening complaint of the Everett Land Company, set up the validity of the partition proceedings which originated in an alleged community right in the lands in controversy in the widow of Erskine D. Kromer, who is the defendant Emma Holland. The material facts relating to the matters in controversy are as follows: On May 3, 1870, said Erskine D. Kromer made a homestead filing upon the land aforesaid, situate in Snohomish county, Wash. It is claimed that he was at that time a single man, but at or about said time (the exact time not being material) a certain Indian woman, who had previously been known by the name of Emma Kanouke, and who was thenceforth known as Emma Kromer, came to live with him as his wife, and continued to live with him until his death, in 1885. The plaintiffs and said Alice Kromer are their children. On October 26, 1876, said Erskine D. Kromer made the requisite proofs of his capacity to file and compliance with the laws of the United States relating to such homestead entry. On December 21, 1876, he and said Indian woman appeared before a justice of the peace of said county, and had a marriage ceremony performed. On December 30, 1876, a patent for said land was issued to him. At his death he left the following will, purporting to devise the land in controversy: "I will, bequeath, and devise to my beloved son, Victor E. Kromer, the land upon which myself and family reside, situate in said county of Snohomish, Washington Territory, to wit, lots numbered one and two, the southeast quarter of the northwest quarter, and the northwest quarter of the northeast quarter of section thirty, in township twenty-nine north, of range five east, containing one hundred and forty-seven acres and 55.100 of an acre. It is my will and desire that my family be not separated, and it is my intention that my said son, Victor E. Kromer, shall not sell or dispose of said described premises until each of my daughters shall become of full age, viz. Alice Kromer, Mattie Kromer, and Emma Kromer, and that they shall each have the privilege of residing upon said premises until they shall each become married, provided they should marry before they shall have arrived at the age of majority; and it is my desire that the rents, issues, and profits of said described prem

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ises shall go to support my said son and daughters, hereinbefore mentioned, until said girls shall have become married or arrived at the age of majority, at the expiration of which time my said son, Victor E. Kromer, is hereby empowered to dispose of said premises as he shall see fit. Third. I give and bequeath unto my wife, Emma Kromer, the sum of two hundred dollars, which my executor is hereby authorized to pay at my death. And it is my will and desire that my said wife, Emma Kromer, reside upon the premises hereinbefore mentioned and bequeathed to my said son, Victor E. Kromer, until her death or marriage. * I nominate and appoint my respected friend J. H. Plaskett my executor, and authorize him to administer upon my estate, and to execute this will, without giving bond, and without any direction or control from any court, and without notice to creditors or otherwise." This will was probated September 10, 1885. Said J. H. Plaskett qualified as executor, and a copy was filed in the auditor's office for record in October, 1885. On September 23, 1885, said Plaskett was appointed guardian of the persons and property of said children, and has ever since served as general guardian of their persons and property. On October 25, 1886, the final account of said Plaskett as executor was allowed by the probate court, and distribution made of the real and personal property willed by the deceased. There is some contention as to whether the widow was a party to this proceeding, but we do not regard it as material, and the plaintiffs practically concede that it is not. On December 14, 1889, said Plaskett, as guardian, filed a petition in the probate court, praying for the sale of the real estate in controversy, alleging such facts as the statute required to authorize a sale by a guardian of his minor ward's real estate. It was claimed that the real estate was unproductive, and that there were no funds to pay the taxes thereon or to support the children, and that it would be for the advantage of said children to have the same sold. Upon the hearing of this petition, on January 27, 1890, the widow of Erskine D. Kromer, who had previously to that time married one Holland, appeared and filed objections to the order, and asked for partition, claiming, among other things, that the land in controversy was community property of herself and said Erskine D. Kromer, and that she was entitled to one-half thereof, as the surviving spouse. The probate court found against her, and entered an order directing a sale of all of the land. On January 28, 1890, she filed a notice of appeal from said order and judgment of the probate court. This appeal was heard in the superior court of Snohomish county on the 24th day of March, 1890, whereupon the court found and adjudged as follows: "The court finds that the real estate described in

the petition of said guardian for an order of sale thereof, and which said probate court ordered to be sold as prayed or in said petition, is community property, and, as such, the said appellant Emma Holland, formerly widow of Erskine D. Kromer, deceased, is entitled to the undivided one-half thereof; and that the said probate judge or probate court had no right to order the sale of the entire property, or any part thereof, in the manner in said transcript shown. It is therefore ordered, adjudged, and decreed by this court that the order of sale and judgment rendered by said probate court below is reversed, set aside, and held for naught." But the court made no finding or order as to a partition.

It is contended that the court could not have found upon the facts that said parties were husband and wife prior to the marriage cere mony which was performed between them by the justice of the peace, and that said ceremony was evidence that they were not married prior thereto. There is no doubt that it was some evidence of the fact that the parties had not been previously married, but it was not conclusive. Said parties may possibly have entertained a doubt as to the validity of a previous ceremony, and may have wished to set that doubt at rest by such subsequent ceremony. It does appear that they had lived and cohabited together, and held each other out as husband and wife, for a number of years. It is true this would not constitute a marriage under the laws of the territory, but it was some evidence of marriage; and, in making his homestead proofs, said Kromer testified that he was the head of a family, and submitted the affidavits of two of his neighbors that he was a married man. The parties were all before the probate court in said proceeding, brought by the guardian for authority to sell the land for the purposes therein set forth, for a better investment of the proceeds, etc., and were likewise before the superior court upon the appeal therefrom by the widow; and the court having found therein that said Erskine D. Kromer and said woman with whom he was living were lawfully married, and that the land was the community land of said parties, and there having been no appeal prosecuted therefrom, that decree must stand, if the court had jurisdiction to make the finding. And it would make no difference whether it was an erroneous finding of fact or of law. It would be the law of the case as applied to the lands in question, and conclusive upon the parties. The jurisdiction of the court to find that said parties were husband and wife, and that the land was community property, is strenuously attacked by the plaintiff, and contended for by the defendants. It raises a most important question as to the power of the former probate courts of the territory and of the superior courts of the state upon such appeal. The fact that the proceedings were had in the

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probate court while we were under a territorial form of government, and in the superior court of the state after statehood, might have some bearing also as to whether the latter court, upon the appeal, was limited by the powers possessed by the former court. decision of these questions is not necessarily involved in this case, as we view it, and we shall refrain from deciding them at the present time, but have set forth the facts as having some bearing upon the later proceedings. Subsequent to the foregoing, and on April 7, 1890, said widow executed and delivered to defendant Friday a quitclaim deed of her un divided one-half of the land. On May 12, 1890, said Friday began an action for partition in the superior court of Snohomish county, alleging, in substance, in his complaint, the filing upon the lands in controversy by said Erskine D. Kromer and his compliance with the United States homestead laws; that during all of said times he was a married man, and that his wife, said Emma D. Kromer, lived with him upon said land; that he died testate; that the children aforesaid were the issue of said marriage, and were living at the time of his death; the appointment of the said Plaskett as guardian, the interests of the children therein to an undivided onehalf of said lands, and his ownership of the other by virtue of the conveyance from the widow; that the land was so situated and its condition such that a division could not be made without great prejudice to the owners; and praying that the court ascertain and determine the interests of each of said parties, and that partition thereof be had, and in case it could not be made, etc., then that the land be sold, and the proceeds paid to the several owners in proportion to their respective interests. Summons was issued upon this complaint, and was personally served upon all of said children, and upon said Plaskett as guardian. On June 6, 1890, a firm of lawyers appeared for said defendants, and filed a general demurrer to the complaint. It does not appear what disposition was made of this demurrer; but on the 3d day of July, 1890, an answer was filed in that action, denying the sale by the widow to the plaintiff, Friday, and that the real estate was so situated that it could not be divided without great prejudice to the owners, and, by way of counterclaim, set up the payment by them of taxes for several years upon all of said land, and that one-half of said sums was a just claim against the interest and claim of the plaintiffs, etc. On the 3d day of July, the court rendered the following decree: "This case coming on by agreement of the parties hereto on this 3d day of July, 1890, before the Honorable J. R. Winn, judge of said court, at his chambers in Snohomish City, in said county and state, the plaintiff appearing by Craddock & Miller, his attorneys, and the defendants appearing by Frater & Ault, their attorneys, and said minor defendants also appearing by J. H. Plaskett, their guardian, and

the court, being fully advised in the premises, finds from the pleadings and evidence submitted the following: Findings of Fact: (1) That prior to the 30th day of December, 1876, one Erskine D. Kromer, having complied with the laws of the United States, became the owner in fee simple of the following described property, to wit: Lots one (1) and two (2) and the northwest quarter of the northeast quarter (N. W. 4 of N. E. 4) and the southeast quarter of the northwest quarter (S. E. 4 of N. W. ) of section No. thirty (30), in township No. twenty-nine (29) north, of range No. five (5) east, Willamette meridian, situate in Snohomish county, state of Washington; and on said last-mentioned date a patent was duly issued to said Kromer under the homestead laws of the United States of said lands. That, prior to that time, said Kromer resided upon said tract, and had entered the same as a homestead upon public lands, of the United States. That the said Erskine D. Kromer was a married man, and thereafter, while residing upon said lands, and during all the time of his said residence upon said tract, was there living with his wife, Emma D. Kromer. (2) That on or about the 8th day of August, 1885, the said Erskine D. Kromer died, testate, in said county, and in the then territory and now state of Washington; and that the above-described tract of land was a portion of the estate of said decedent. (3) That, at the time of the death of said Kromer, there were living, as the issue of his said marriage, the following children, to wit, Victor E. Kromer, Emma Kromer, Mattie Kromer, and Alice Kromer, who has since intermarried with one Lloyd Allen, who are heirs at law of said Erskine D. Kromer, deceased. That the only other heir at law of said decedent is his said wife, surviving him, whose name at the time of his decease was Emma D. Kromer, but who has since remarried, and who is now, and has been for a long time past, Emma D. Holland, wife of Samuel S. Holland. (4) That, prior to the commencement of this action, the said Emma D. Holland, for a valuable consideration, sold and by deed duly conveyed, to the plaintiff herein, an undivided one-half (1⁄2) interest in and to all of the above-described tract of land; and that the said plaintiff is now the owner of said undivided one-half of said real property, and is in possession thereof. (5) That, after the death of the said Erskine D. Kromer, the above-named defendant J. H. Plaskett was duly appointed guardian of the persons and estates of the above minor children of the said Erskine D. Kromer and Emma D. Kromer, his wife, and duly qualified as such, and, ever since the time of his said appointment, said J. H. Plaskett has been, and now is, the guardian of the said minor children. (6) That said plaintiff and said minor children and heirs at law of said decedent, viz. Victor E. Kromer, Emma Kromer, Mattie Kromer, and Alice Allen, are the owners and tenants in

common of the above-described tract of land, as follows, to wit: The said plaintiff, Frank P. Friday, has an estate in said lands to the extent of an undivided one-half part or interest in fee thereof; the said minor defendant, Victor E. Kromer has an estate of inheritance in said real estate, to the extent of an undivided one-half (1⁄2) part or interest in fee thereof; and the other minor defendants. Emma Kromer, Mattie Kromer, and Alice Allen, have a contingent interest in said real estate above described, to the extent of the right of said minor defendants Emma Kromer, Mattie Kromer, and Allice Allen to live, reside, and remain on an undivided one-half part thereof until they become of lawful age, or until they become married. (7) That there are no liens or incumbrances on said lands appearing of record, and that no person other than the said plaintiff and the defendants herein before named have any interest in said lands, as owners or otherwise. (8) That said real estate is so situated and its condition is such that a partition thereof cannot be made without great prejudice to said owners. (9) That said defendant J. H. Plaskett, as guardian, has paid the taxes on said lands for the years 1885, 1886, 1887, 1888, and 1889. And, upon the above and foregoing findings of fact, the court finds the following conclusion of law. That said premises should be sold, and the proceeds arising from the sale thereof be divided according to the respective rights of the parties hereto, as found by the court; and that an order of sale issue therefor. It is therefore ordered, adjudged, and decreed, in accordance with the foregoing finding of facts and conclusion of law, that the said real estate be sold at public auction to the highest bidder, in the manner prescribed by law, upon the following terms, to wit: One-half of the purchase price to be paid cash in hand on the day of the sale, the balance in two equal installments, payable in nine (9) and eighteen (18) months, respectively, with interest on the deferred payments at the rate of ten per cent. per annum, and secured by mortgage on said premises; and that A. W. Hawks, Esq., be, and he is hereby, appointed referee to sell said real estate, and of his proceedings hereunder to make due return." Notice of sale of the land was posted and published by the referee appointed to make the sale, and the same was sold to said Friday for the sum of $13,000, on Au gust 2, 1890. A stipulation was thereafter entered into between the parties relative to certain security taken for a portion of said sum, and the sale was duly confirmed; and thereafter, on the 21st day of August, 1890, the referee, pursuant to such proceedings and sale, executed and delivered a deed of the land to Friday, which was, on the 25th day of said month, duly approved by the court. On the 28th day of November, 1890, Friday exe cuted a deed of an undivided one-half of this land to the defendants Rucker; and on the same day executed and delivered to defend

ant Henry Hewitt, Jr., a deed of the other undivided one-half, which interest was subsequently conveyed by Hewitt and wife to the Everett Land Company. No appeal was taken from the decree of the superior court in any of the foregoing proceedings by any of the parties interested or at all, and the same remained unquestioned until the commencement of this action, in December, 1891.

Many points have been raised and argued in the case which we think unnecessary to pass upon, owing to the conclusion we have reached with regard to others; and, before proceeding to discuss the matters of law involved in the various proceedings, we wish to dismiss the charge of fraud as utterly unfounded, as, after an examination of the argument with reference thereto, contained in the 660 odd pages of briefs filed in this case, and the evidence upon which it is based, found in the three large volumes of the record, we are satisfied that all parties, including the courts and the guardian, acted in entire good faith in the premises. A lengthy discussion of the questions raised with reference to this feature of the case would serve no good purpose. The several proceedings must be viewed in the light which surrounded them at the time they were had; and although the land in question has now become very valuable, by reason of the fact that a prosperous city is being in part built thereon, and that several hundred thousand dollars have been expended in improvements upon the same by the purchasers and their grantees, all of which have been projected and done since the sale under the partition proceedings, it is apparent that, at the time the land was sold thereunder, it brought a high price, which was due in a measure to an unsuccessful "boom," that was independent of the matters which have since given value to the land. Even though the parties purchasing had an undisclosed purpose of platting a town site thereon, and were endeavoring to obtain the land for that purpose, it is apparent that the same would not have been carried out if the supposed title had not been procured; and, had it not been for these subsequent developments, undoubtedly the sale would have been regarded as a fortunate one, and the proceedings would not have been questioned.

Although Erskine D. Kromer, in his will, sought to provide for the retention of the land until his daughters had arrived at the age of majority, the court clearly was not deprived of power to order a sale thereof in the partition proceedings if the land was community property, as the will would only operate to convey the title to a one-half interest. The land at that time was practically in a wilderness, and was unproductive, and was, it seems, in danger of being sold for taxes, and there were no funds available for the support of the minors. It was as much the intention of the deceased parent that the children should be supported dur