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(54 Kan. 649)

band and wife forbid either from obtaining WARNER v. BROQUET et al.

a tax title upon the real estate of the other. (Supreme Court of Kansas. Feb. 9, 1895.)

Laton v. Balcom 64 N. H. 92, 6 Atl. 37, 22 SALE OF WIFE'S LAND FOR TAXES -PURCHASE BY

Rep. 733; Burns v. Byrne, 45 Iowa, 285.
HUSBAND.

The case of Broquet v. Warner, 43 Kan. 1. The case of Broquet v. Warner, 22 Pac. 48, 22 Pac. 1004, will be overruled. The mo1004, 43 Kan. 48, overruled.

tion for a new trial ought to have been sus2. The husband cannot obtain a valid tax

tained. title to his wife's real estate by the purchase

The judgment will be reversed, and thereof at a tax sale.

the cause remanded for further proceedings (Syllabus by the Court.)

in accordance with the views herein exError from district court, Norton county;

pressed. All the justices concurring. G. Webb Bertram, Judge.

Action by Frederick W. Warner, administrator, against Ernest Broquet and others,

(11 Wash. 88) upon a promissory note, and to foreclose a

AGASSIZ V. KELLEHER. mortgage securing the same. From a judg. (Supreme Court of Washington. Feb. 7, 1895.) ment for defendants, plaintiff brings error.

APPEAL-WHEN TIME BEGINS TO RUN. Reversed.

Where an appeal is, on appellant's mo For former opinion, see 43 Kan. 48, 22 Pac.

tion, dismissed by the supreme court, to allow 1004.

the judgment of the trial court to be corrected,

and a new appeal taken from the corrected C. D. Jones and Louis K. Pratt, for plain- judgment, the time within which the second tiff in error. John R. Hamilton, for defend

appeal can be taken begins to run from the en

try of the original judgment. ants in error.

Appeal from superior court, King county; HORTON, C. J. This is the second time

R. Osborn, Judge. that this case has been in this court. 43

Action by Richard Agassiz against Daniel

Kelleher. Kan. 48, 22 Pac. 1004. When the case was

Judgment was rendered for de here before, it was heard by the commis

fendant, and plaintiff appeals Appeal dig

missed. sion, and the opinion was prepared by Clog. ston, C. It was decided therein that the M. L. Baer, for appellant. Bausman, Kel. husband could obtain a tax title upon land leher & Emory, for respondent. in which his wife had an interest. It was intimated in the opinion that, if the hus- SCOTT, J. A former appeal was taken in band and wife were in possession of the this case, which was dismissed, upon the appremises, neither could obtain a tax title pellant's motion, for the purpose of allowing upon the property. There is sufficient evi- him to move for a correction of the judgment dence contained in the record showing that entry in the lower court, and taking another Ernest Broquet had actual possession of the appeal therefrom. 9 Wash. 656, 38 Pac. 221. land at the date of the tax sale at which A default judgment had been entered against he purchased the same, and also at the the appellant, on which the first appeal was date that the tax deed was issued to him. taken. After said appeal was dismissed, this Therefore, upon the intimation of the fore. judgment was set aside, and a judgment of going opinion, as the wife had an interest dismissal was entered upon the order sus. in common in the land with other heirs, and taining a demurrer to the complaint, the as her husband had the actual possession plaintiff having elected to stand thereon, thereof, bis alleged tax title is of no actual and this appeal was taken from the judge validity. The relation of the husband and ment as corrected. The respondent again the wife to the property was such that moves to dismiss, one of the grounds being neither could obtain a valid tax title thereon. that the appeal was not taken in time. It

But we are not willing to rest this deci- is conceded to have been taken more than sion upon the actual possession of the land six months after the entry of the original by the husband or wife, or by both. There judgment. The present judgment was the is nothing in our statutes recognizing the one that should have been entered at that legal existence of the wife and her equal time, and it ought not to be given the effect property rights which abrogates the marital of a new judgment to extend the time for rights of trust and confidence incident to the taking an appeal. We are of the opinion relation of husband and wife. The existence that this appeal was taken too late, and the and continuance of these relations are fully motion to dismiss is granted. The costs uprecognized in the statutes. Civ. Code, $ on the former dismissal, having been with323, subd. 3; Fisher v. Conway, 21 Kan. 18; held pending the time within which a sec Chandler v. Dye, 37 Kan. 765-767, 15 Pac. ond appeal could be taken, will be included 925. Both husband and wife have an inter- herein. est, either direct or indirect, in each other's real estate. These interests and the mutual HOYT, C. J., and DUNBAR, ANDERS, confidence which ought to exist between bus- and GORDON, JJ., concur.

(10 Wash, 621)
KROMER et al. v. FRIDAY et al. (EVER-

ETT LAND CO., Intervener).
(Supreme Court of Washington. Jan. 14,

1895.) PARTITION SALE-VALIDITY-INFANT DEFENDANTS

-ADMISSIONS BY GUARDIAS-PETITION-NOTICE OF SALE-HOMESTEAD ENTRY-IssuE OF PATEXT -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. Hild, 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 sbowing 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 rests 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.

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 Snohomisli 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 TOP 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

SCOTT, J. The plaintiffs have appealed from a decree of the superior court of Snohomish county dismissing their complaint, and adjudying, 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

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ises shall go to support my said son and the petition of said guardian for an order of daughters, hereinbefore mentioned, until sale thereof, and which said probate court said girls shall have become married or ar- ordered to be sold as prayed or in said perived at the age of majority, at the expira- tition, is community property, and, as such, tion of which time my said son, Victor E. the said appellant Emma Holland, formerly Kromer, is hereby empowered to dispose of widow of Erskine D. Kromer, deceased, is said premises as he shall see fit. *

entitled to the undivided one-half thereof; Third. I give and bequeath unto my wife, and that the said probate judge or probate Emina Kromer, the sum of two hundred court had no right to order the sale of the dollars, which my executor is hereby au- entire property, or any part thereof, in the thorized to pay at my death. And it is my manner in said transcript shown. It is will and desire that my said wife, Emma therefore ordered, adjudged, and decreed by Kromer, reside upon the premises herein- this court that the order of sale and judgbefore mentioned and bequeathed to my ment rendered by said probate court below said son, Victor E. Kromer, until her death is reversed, set aside, and held for naught.” or inarriage. *

* * I nominate and ap- But the court made no finding or order as point my respected friend J. H. Plaskett my to a partition. executor, and authorize him to administer It is contended that the court could not have upon my estate, and to execute this will, found upon the facts that said parties were without giving bond, and without any di- husband and wife prior to the marriage cererection or control from any court, and with- mony which was performed between them out notice to creditors or otherwise." This by the justice of the peace, and that said cerwill was probated September 10, 1885. Said emony was evidence that they were not marJ. H. Plaskett qualified as executor, and a ried prior thereto. There is no doubt that it copy was filed in the auditor's office for rec- Was some evidence of the fact that the parord in October, 1887. On September 23, ties had not been previously married, but it 1885, said Plaskett was appointed guardian was not conclusive. Said parties may possiof the persons and property of said children, bly have entertained a doubt as to the valid. and has ever since served as general guard- ity of a previous ceremony, and may have ian of their persons and property. On Oc- wished to set that doubt at rest by such subtober 25, 1886, the final account of said sequent ceremony. It does appear that they Plaskett as executor was allowed by the had lived and cohabited together, and held probate court, and distribution made of the each other out as husband and wife, for a real and personal property willed by the

number of years. It is true this would not deceased. There is some contention as to constitute a marriage under the laws of the whether the widow was a party to this pro

territory, but it was some evidence of marceeding, but we do not regard it as material, riage; and, in making his homestead proofs, and the plaintiffs practically concede that it said Kromer testified that he was the head is not. On December 14, 1889, said Plaskett, of a family, and submitted the affidavits of as guardian, filed a petition in the probate two of his neighbors that he was a married court, praying for the sale of the real estate man. The parties were all before the proin controversy, alleging such facts as the bate court in said proceeding, brought by the statute required to authorize a sale by a guardian for authority to sell the land for guardian of his minor ward's real estate. It the purposes therein set forth, for a better was claimed that the real estate was un- investment of the proceeds, etc., and were productive, and that there were no funds to

likewise before the superior court upon the pay the taxes thereon or to support the chil-appeal therefrom by the widow; and the dren, and that it would be for the advan- court having found therein that said Erskine tage of said children to have the same sold. D. Kromer and said woman with whom he Upon the hearing of this petition, on Janu- was living were lawfully married, and that ary 27, 1890, the widow of Erskine D. Kro- the land was the community land of said mer, who had previously to that time mar- parties, and there having been no appeal ried one Holland, appeared and filed objec- prosecuted therefrom, that decree must stand, tions to the order, and asked for partition, if the court had jurisdiction to make the claiming, among other things, that the land finding. And it would make no difference in controversy was community property of whether it was an erroneous finding of fact herself and said Erskine D. Kromer, and or of law. It would be the law of the case that she was entitled to one-half thereof, as

as applied to the lands in question, and conthe surviving spouse. The probate court clusive upon the parties. The jurisdiction of found against her, and entered an order di- the court to find that said parties were husrecting a sale of all of the land. On Janu. band and wife, and that the land was comary 28, 1890, she filed a notice of appeal munity property, is strenuously attacked by from said order and judgment of the pro- the plaintiff, and contended for by the debate court. This appeal was heard in the fendants. It raises a most important ques. superior court of Snohomish county on the tion as to the power of the former probate 24th day of March, 1890, whereupon the courts of the territory and of the superior court found and adjudged as follows: "The courts of the state upon such appeal. The court finds that the real estate described in fact that the proceedings were had in the

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probate court while we were under a terri. the court, being fully advised in the premises, torial form of government, and in the supe. finds from the pleadings and evidence subrior court of the state after statehood, might mitted the following: Findings of Fact: (1) have some bearing also as to whether the That prior to the 30th day of December, latter court, upon the appeal, was limited by | 1876, one Erskine D. Kromer, having comthe powers possessed by the former court. A plied with the laws of the United States, bedecision of these questions is not necessarily came the owner in fee simple of the followinvolved in this case, as we view it, and we ing described property, to wit: Lots one (1) shall refrain from deciding them at the pres. and two (2) and the northwest quarter of the ent time, but have set forth the facts as hav. northeast quarter (N. W. 14 of N. E. 14) and ing some bearing upon the later proceedings. the southeast quarter of the northwest quar

Subsequent to the foregoing, and on April ter (S. E. 14 of N. W. 14) of section No. thir7, 1890, said widow executed and delivered to ty (30), in township No. twenty-nine (29) defendant Friday a quitclaim deed of her un. north, of range No. five (5) east, Willamette divided one-half of the land. On May 12, meridian, situate in Snohomish county, state 1890, said Friday began an action for parti- of Washington; and on said last-mentioned tion in the superior court of Snohomish coin- date a patent was duly issued to said Kroty, alle ag, in substance, in his complaint, mer under the homestead laws of the United the filing upon the lands in controversy by States of said lands. That, prior to that time, said Erskine D. Kromer and his compliance said Kromer resided upon said tract, and had with the United States homestead laws; that entered the same as a homestead upon public during all of said times he was a married lands, of the United States. That the said man, and that his wife, said Emma D. Kro- Erskine D. Kromer was a married man, and mer, lived with him upon said land; that he | thereafter, while residing upon said lands, died testate; that the children aforesaid were and during all the time of his said residence the issue of said marriage, and were living upon said tract, was there living with his at the time of his death; the appointment of wife, Emma D. Kromer. (2) That on the said Plaskett as guardian, the interests about the 8th day of August, 1885, the said of the children therein to an undivided one- Erskine D. Kromer died, testate, in said counhalf of said lands, and his ownership of the ty, and in the then territory and now state of other by virtue of the conveyance from the Washington; and that the above-described widow, that the land was so situated and its tract of land was a portion of the estate of condition such that a division could not be said decedent. (3) That, at the time of the made without great prejudice to the owners; death of said Kromer, there were living, as and praying that the court ascertain and de- the issue of his said marriage, the following termine the interests of each of said parties, children, to wit, Victor E. Kromer, Emma and that partition thereof be had, and in case Kromer, Mattie Kromer, and Alice Kromer, it could not be made, etc., then that the land who has since intermarried with one Lloyd be sold, and the proceeds paid to the several Allen, who are heirs at law of said Erskine owners in proportion to their respective in- D. Kromer, deceased. That the only other terests. Summons was issued upon this com- heir at law of said decedent is his said wife, plaint, and was personally served upon all of surviving hin, whose name at the time of his said children, and upon said Plaskett as decease was Emma D. Kromer, but who has guardian. On June 6, 1890, a firm of law- since remarried, and who is now, and has yers appeared for said defendants, and filed been for a long time past, Emma D. Holland, a general demurrer to the complaint. It does wife of Samuel S. Holland. (1) That, prior not appear what disposition was made of this to the commencement of this action, the said dem urrer; but on the 3d day of July, 1890, Emma D. Holland, for a valuable considera. an answer was filed in that action, denying tion, sold and by deed duly conveyed, to the the sale by the widow to the plaintiff, Friday, plaintiff herein, an undivided one-half (14) inand that the real estate was so situated that terest in and to all of the above-described it could not be divided without great preju- tract of land; and that the said plaintiff is dice to the owners, and, by way of counter- now the owner of said undivided one-half of claim, set up the payment by them of taxes said real property, and is in possession there. for several years upon all of said land, and of. (5) That, after the death of the said that one-half of said sums was a just claim Erskine D. Kromer, the above-named defendagainst the interest and claim of the plain- ant J. H. Plaskett was duly appointed guardtiffs, etc. On the 3d day of July, the court ian of the persons and estates of the above rendered the following decree: “This case minor children of the said Erskine D. Krocoming on by agreement of the parties hereto mer and Emma D. Kromer, his wife, and on this 3d day of July, 1890, before the Hon- duly qualified as such, and, ever since the orable J. R. Winn, judge of said court, at bis time of his said appointment, said J. H. chambers in Snohomish City, in said county Plaskett has been, and now is, the guardian and state, the plaintiff appearing by Crad- of the said minor children, (6) That said dock & Miller, his attorneys, and the defend- plaintiff and said minor children and heirs ants appearing by Frater & Ault, their attor- at law of said decedent, viz. Victor E. Kroneys, and said minor defendants also appear. mer, Emma Kromer, Mattie Kromer, and ing by J. H. Plaskett, their guardian, and Alice Allen, are the owners and tenants in common of the above-described tract of land, ant Henry Hewitt, Jr., a deed of the other as follows, to wit: The said plaintiff, Frank undivided one-half, which interest was subP. Friday, has an estate in said lands to the sequently conveyed by Hewitt and wife to extent of an undivided one-half part or inter- the Everett Land Company. No appeal was est in fee thereof; the said minor defendant, taken from the decree of the superior court Victor E. Kromer has an estate of inheritance in any of the foregoing proceedings by any of in said real estate, to the extent of an un- the parties interested or at all, and the same divided one-half (12) part or interest in fee remained unquestioned until the commencethereof; and the other minor defendants ment of this action, in December, 1891. Emma Kromer, Mattie Kromer, and Alice Many points have been raised and argued Allen, have a contingent interest in said real in the case which we think unnecessary to estate above described, to the extent of the pass upon, owing to the conclusion we have right of said minor defendants Emma Kro- reached with regard to others; and, before mer, Mattie Kromer, and Allice Allen to live, proceeding to discuss the matters of law reside, and remain on an undivided one-half involved in the various proceedings, we wish part thereof until they become of lawful age, to dismiss the charge of fraud as utterly or until they become married. (7) That there unfounded, as, after an examination of the are no liens or incumbranceg on said lands argument with reference thereto, contained appearing of record, and that no person other in the 660 odd pages of briefs filed in this than the said plaintiff and the defendants case, and the evidence upon which it is hereinbefore named have any interest in said based, found in the three large volumes of lands, as owners or otherwise. (8) That said the record, we are satisfied that all parties, real estate is so situated and its condition is including the courts and the guardian, acted such that a partition thereof cannot be made in entire good faith in the premises. A without great prejudice to said owners. (9) lengthy discussion of the questions raised That said defendant J. H. Plaskett, as guard- with reference to this feature of the case ian, has paid the taxes on said lands for the would serve no good purpose. The several years 1885, 1886, 1887, 1888, and 1889. And, proceedings must be viewed in the light upon the above and foregoing findings of which surrounded them at the time they fact, the court finds the following conclusion were had; and although the land in question of law. That said premises should be sold, has now become very valuable, by reason and the proceeds arising from the sale there. of the fact that a prosperous city is being in of be divided according to the respective part built thereon, and that several hundred rights of the parties hereto, as found by the thousand dollars have been expended in im. court; and that an order of sale issue there

provements upon the same by the purchasers for. It is therefore ordered, adjudged, and and their grantees, all of which have been decreed, in accordance with the foregoing projected and done since the sale under finding of facts and conclusion of law, that the partition proceedings, it is apparent that, the said real estate be sold at public auction at the time the land was sold thereunder, to the highest bidder, in the manner pre- it brought a high price, which was due in scribed by law, upon the following terms, a measure to an unsuccessful “boom," that to wit: One-half of the purchase price to be was independent of the matters which have paid cash in hand on the day of the sale, the since given value to the land. Even though balance in two equal installments, payable in the parties purchasing had an undisclosed nine (9) and eighteen (18) months, respective- purpose of platting a town site thereon, and ly, with interest on the deferred payments at were endeavoring to obtain the land for that the rate of ten per cent. per annum, and se- purpose, it is apparent that the same would cured by mortgage on said premises; and not have been carried out if the supposed that A. W. Hawks, Esq., be, and he is here- title had not been procured; and, had it not by, appointed referee to sell said real estate, been for these subsequent developments, unand of his proceedings hereunder to make doubtedly the sale would have been regard. due return." Notice of sale of the land was ed as a fortunate one, and the proceedings posted and published by the referee appoint- would not have been questioned. ed to make the sale, and the same was sold Although Erskine D. Kromer, in his will, to said Friday for the sum of $13,000, on Au. sought to provide for the retention of the gust 2, 1890. A stipulation was thereafter land until his daughters had arrived at the entered into between the parties relative to age of majority, the court clearly was not certain security taken for a portion of said deprived of power to order a sale thereof in sum, and the sale was duly contirmed; and the partition proceedings if the land was thereafter, on the 21st day of August, 1890, community property, as the will would only the referee, pursuant to such proceedings and operate to convey the title to a one-half in. sale, executed and delivered a deed of the terest. The land at that time was practicalland to Friday, which was, on the 25th day of ly in a wilderness, and was unproductive, said month, duly approved by the court. On and was, it seems, in danger of being sold the 28th day of November, 1890, Friday exe for taxes, and there were no funds available cuted a deed of an undivided one-half of this for the support of the minors. It was as land to the defendants Rucker; and on the much the intention of the deceased parent same day executed and delivered to defend- that the children should be supported dur

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