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Another fact shown by the record that of title, or under color of title made in good seems to us to controvert the defendant's faith. The payment might, under rules elseclaim is that the tract remained open to the where announced by this court, give rise to public and was extensively used by the pub- the right to recover of the true owner the lic as a highway during the entire time the taxes so paid, but we think it cannot give defendant now claims to have had adverse title to the land itself. possession of it. Had the space been needed On the plaintiff's appeal we do not think as a highway for the use of the defendant's the equities of the case justify a recovery of tenants, the case might have been different, rents or damages, and we decline to disturb lut such was not the fact. The lot was ac- the judgment in this respect. (essible from both sides, and certainly this The judgment appealed from will therepace covered with buildings would have fore stand affirmed, neither party to recover been made more serviceable and profitable to costs. its owners than it was while in use as a mere alleyway. Still another fact is that lot 6 was not given in to the assessor for

(44 Wash. 158) taxation as an entire lot during any part of

GAFFNEY v. JONES. that period. For the purposes of taxation (Supreme Court of Washington. Oct. 19, 1906.) it was divided into tracts called the south 1. CONSTITUTIONAL LAW – DUE PROCESS OF feet, and the north 6 feet, and different


Laws 1897, p. 52, c. 39, provides that after parties paid the taxes upon it in these pro- the expiration of six years from the rendition of portions. When it is remembered that in the a judgment it shall cease to be a charge against earlier of the years mentioned ownership of the judgment debtor, and no suit shall be main

tained by which the lien of the judgment shall be real property for the purposes of taxation

extendied. The act took effect in June, 1897. was ascertained from persons claiming it A judgment was rendered in February, 1897. rather than from any systematic study of the The Supreme Court handed down an opinion in records, it is at least significant that none

December, 1897, affirming the judgment, on

which judgment was entered January, 1898. of the defendant's grantors thought to have

Held, that the act was not unconstitutional the entire lot assessed under his own name. when applied to the judgment; the taking away What gave rise to the arbitrary division made of the right to revive a judgment having only to the record does not make very clear, but

do with the remedy, and the judgment creditor

having a reasonable time within which to enit can be surmised that the defendant's force the judgment. grantors intended to pay only on that part

On motion for rehearing. Denied. of the lot to which they had title, and were in

For former opinion, see 81 Pac. 1058. error as to the size of the strip in dispute. The contention that the construction of the

ROOT, J. After an opinion was handed sidewalk was a taking of possession of the

down in this case (August 15, 1905; 39 Wash. entire tract obviously has no merit. Its con

587, 81 Pac. 1058), respondent interposed an struction and open and continuous use for

elaborate and able petition and argument the period of the statute of limitations might

for rehearing, based principally upon the give rise to an easement in the nature of

contention that the statute of 1897 (Laws a right of way over that portion of the lot

1897, p. 52, c. 39), as applied to a case of so used, but to use a portion of a tract as a

this character, constituted the taking of right of way is clearly not an adverse user

property without due process of law. This of the entire tract.

point was suggested in the original briefs, The claim that the defendant has title by

but not urged or argued. A rehearing was virtue of the seven-year statute has no better

ordered and the parties invited to file briefs foundation. On the north six feet no con- presenting such arguments as they deemed tinuous payment of taxes for that period of proper, and were especially requested to time was in fact made, and the claim to

give their views on the following questions: that part of the tract can be dismissed at

(1) Is this a proceeding to revive the judgonce. While taxes on the south four feet

ment of the superior court or of the Supreme have been paid for the period required, we Court? (2) If this is an action to revive think the payments were not made under a judgment of the Supreme Court, how does the conditions the statute imposes. The stat- the question of the constitutionality of the ute requires the taxes to be paid under "claim statute of 1897 become material, said statand color of title," when the land is in pos- ute having come into effect prior to the session of the person paying the taxes, and entry of the judgment? (3) If it is the suunder "color of title made in good faith" perior court judgment that is sought to be when the land is vacant and unoccupied. revived, was the original proceeding (to rellere, as we have said, the evidence (on- vive) commenced in time? (4) Does the vinces us that the defendant made no claim statute forbidding a revivor of a judgment to this 10-foot strip, or any part of it, and on tort amount to the taking or damaging that his payment of taxes on a portion of it of property within the constitutional meanwas made through error rather than with ing? (5) Is a right of action upon a tort any intent to pay taxes on it. Such a pay- before merged in a judgment a property ment can neither be under claim and color right which the Legislature could not legally

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affect by means of a statute forbidding the judgment were sunt marily or arbitrarily ter-
revivor of judgments, as was done or at- minated. We think the authorities bear
tempted to be done by the statute of 1897? out the view here expressed.
The pertinency of the foregoing questions An interesting case is that of Louisiana
will be perceived from the following state- v. Mayor of New Orleans, 109 U. S. 285,
ment of facts: The judgment of the superior 3 Sup. Ct. 211, 27 L. Ed. 936. Certain per-
court in this case was entered on the 26th sons, under the provisions of the state stat-
day of February, 1897. The statute involved ute providing therefor, obtained judgments
in this case went into effect in June, 1897. against the city of New Orleans for damages
An appeal was taken from the judgment of to property caused by mob violence. While
the superior court to the Supreme Court of these judgments remained in full force and
the state, which handed down an opinion on unpaid and unsatisfied, the people of the
December 17, 1897, affirming the judgment state adopted a Constitution which had the
of the lower court. Judgment in the Su- effect of preventing the city from levying
preme Court was entered on the 21st day of a sufficient tax to pay said judgments or
January, 1898. The statute under which

any portion thereof. It was contended berespondent sought to revive the former judg- fore the Supreme Court of the United States ment requires the proceeding to revive to be that said state Constitution impaired the olicommenced within six years from the date ligation of contracts and amounted to a depof entry of said judgment. It will be thus rivation of property without due process of seen that, if the six-year period commenced law. The court held otherwise, and while to run on the date of the entry of the judg- it expressly disclaimed any intention to pass ment in the superior court, February 26, upon the question of the effect of legisla1897, more than six years had expired when tion upon the means of enforcing an ordithis proceeding to revive was commenced nary judgment for tort, yet the principles on January 19, 1904. On the other hand, involved would seem necessarily to apply if it were the judgment of the Supreme Court to some extent, at least, to such cases. Mr. that was sought to be revived, this judgment Justice Bradley, however, entertained and was entered January 21, 1898—some seven expressed a different view in an opinion conmonths after the act of 1897 had gone in- curring specially with the decision of the to effect, and consequently the latter could majority. As bearing upon the case at bar not be held to have had any retroactive we may quote from his opinion the followeffect. Respondent contends that it was ing: "To abrogate the remedy for enforthe judgment of the superior court that was cing it [ordinary judgment for tort] and to sought to be revived, and that the appeal give no other adequate remedy in its stead, to the Supreme Court tolled the running of is to deprive the owner of his property withthe statute until the judgment of the latter in the meaning of the fourteenth amendcourt was entered, and that the six-year ment.” It would seem to be implied and period, within which a revivor proceeding properly inferable from this language that could be commenced, did not begin to run such a statute or constitutional provision until the entry of the judgment of the Su- would be valid if some "other adequate" preme Court on January 21, 1858. The act

remedy were provided. We do not think of 1897, which respondent claims to be this court can say, as a matter of law, that unconstitutional as applied to a judgment 612 years was an inadequate period to be alof the character involved here, is set forth lowed for the enforcement of respondent's in our former opinion (39 Wash. 587. 81 Pac. judgment. In the case just cited there was 1058).

an able dissenting opinion by Mr. Justice Appellant urges that said statute is valid; Harlan, in which, among other things, he that the taking away of the right to a re- says that "the withdrawal of all remedies vivor has to do only with the remedy, and for its enforcement, and compelling the ownthat inasmuch as in this particular case the er to rely exclusively upon the generosity respondent had over six years within which of the judgment debtor, is


to de to issue execution and enforce her judg. prive the owner of his property." He makes ment, the statute is, as applied to this case, no contention that such a statute would be in no sense obnoxious to the Constitution. unconstitutional if a reasonable time were We think this conclusion must be sustained. allowed within which to enforce the judgThe question as to how much time shall be ment. given to a litigant to enforce a judgment The case of Freeland v. Williams, 131 U. S. which he has obtained in a court seems to 405, 9 Sup. Ct. 763, 33 L. Ed. 193, involved us to be a matter of public policy to which the validity of a constitutional provision the Legislature may give expression by adopted by the people of West Virginia, promeans of a statute, providing the right which viding that participants in the Civil War the judgment evidences at the time of its should not be liable for, nor their property entry is not arbitrarily and summarily cut sold on account of, certain acts committed off. Where, as in this case, a judgment during the war. Prior to the adoption of creditor is given over six years within which said constitutional provision, Freeland had to enforce her judgment, it would seem im obtained a judgment against Williams for possible to say that her rights under said cattle driven off during the war. After the

adoption of said provision, Williams began vide due process of law, was in error when a proceeding in equity to enjoin the enforce- it also held that the remedy provided by the ment of said judgment, and obtained such a Constitution of the state as carried out by decree in the state courts. Freeland then the ancient proceeding of a bill in a court of sued out a writ of error, and the case was equity was not void for want of due process brought before the United States Supreme of law, nor in conflict with the Constitution Court for review, the plaintiff in error urg- of the United States." ing that the state constitutional provision In Koshkonong v. Burton, 104 U. S. 668, was in conflict with section 10, art. 1, of the 26 L. Ed. 886, the United States Supreme federal Constitution, in that it impaired the Court, among other things, said: “It was obligation of a contract, and with section 1 undoubtedly within the constitutional power of the fourteenth amendment, in that it de- of the Legislature to require, as to existing prived him of property without due process causes of action, that suits for their enforceof law. The court denied both contentions. ment. should be barred unless brought withTouching the latter, it said: “The proposi- in a period less than that prescribed at the tion of the plaintiff in error is that by the time the contract was made or the liability judgment of the circuit court of Preston incurred from which the cause of action county he had acquired a vested right in arose. * * * And if a proper construction that judgment; that the judgment was his of that act would give the full period of six property; and that any act of the state which years, after its passage, within which to sue prevents his enforcing that judgment, in upon coupons maturing before its passage, the modes which the law permitted at the the judgment below cannot be sustained. time it was recovered, is depriving him of For this action was not instituted until more property without due process of law, and, than eight years after the passage of the act therefore, forbidden by the 14th amendment of 1872. * * * There is no escape from of the federal Constitution. This right of this conclusion, unless we should hold that the plaintiff to enforce that judgment is in- the Legislature could not, constitutionally, sisted upon as a vested right with which no reduce limitation from 20 to 6 years as to authority (an lawfully interfere. It is to be existing causes of action. But neither upon observed in the first place, that the language principle nor authority could that position be of the prohibition against state interference sustained." with life. liberty or property is that the The Supreme Court of Minnesota, in Burdeprivation of these precious rights shall not well v. Tullis, 12 Minn. 572 (Gil. 486), spoke ne had without due process of law. This as follows: "It would unquestionably be phrase, due process of law,' has always been competent for the Legislature to declare that one requiring construction; and, as this court a judgment creditor must attempt to enforce observed long ago, never has been defined, his judgment within a given time, or be and probably never can be defined, so as to afterwaris denied any remedy for that purdraw a clear and distinct line, applicable to pose, and it must follow that if all remedy all cases, between proceedings which are

may he taken away, under similar circumby due process of law and those which are stances, any particular remedy or a part of not. Judgments, however solemn, however the remedy may also be taken away.” high the court which rendered them, and In the case of Bartol v. Eckert, 50 Ohio however conclusive in a general way between St. 31, 33 N. E. 294, the Supreme Court of the parties, have been subject to review, to Ohio, in discussing a statute as to revivor, reconsideration, to reversal, and to modifi- said: "It is well settled that a party to a cation by various modes. Among these are suit has no vested right to an appeal or writ motions for new trials, appeals, writs of of error' from one court to another. In error and bills of review; and these have al. Lafferty v. Shinn, 38 Ohio St. 46, it is stated ways been held to be due process of law. that in the right to appeal to the courts So, also, judgments of courts of law have there is not involved a further right to apbeen subject to be set aside, to be corrected peal from the judgment of the court to and the execution of them enjoined, hy bills which such application for redress is made; in chancery, under circumstances appropriate on the contrary, that a right to appeal from to such relief. This also must be held to such judgment exists only when given by be due process of law. * * Many other statute; that such right to appeal, when so cases might be cited in which it was held given, may be taken away by statute, even that retrospective statutes, when not of a as to cases pending on appeal; and that the (riminal character, though affecting the same thing is true with us as to proceedings rights of parties in existence, are not for- in error. See Com. v. Messenger, 4 Mass. bidden by the Constitution of the United 469; Ex parte McCardle, 7 Wall. (U. S.) States. We do not think that the Supreme 500, 19 L. Ed. 261; The Marinda v. Dowlin, Court of Appeals of West Virginia, which 4 Ohio St. 500; Railroad Co. v. Grant, 98 seeins to have carefully considered the ques- U. S. 398, 25 I. Ed. 231. We see no satistion of due process of law in the case of factory reason why a different rule should Peerce v. Kitzmiller, and held that the be applied to the revivor of a dormant judgstatute of the state in carrying out the pro- ment, the recovery of which implies that visions of the Constitution did not pro- there has been a previous recourse to the courts, and that due process of law has à spring of water located near his adjoining been invoked. In fact, after the act of 1876 hop field; the water to be used in spraying took effect, the plaintiff had over seven his hops. Ile paid the rent for the year years within which to institute proceed- | 1899, and up to and including the year 1902. ings to revive the dormant judgment. He paid no rent for the years 1903, 1904, and

But the limitation in the statute did 1905. In 1900 appellant Mary Jane Frost not go to the merits of the action to the and her son Roy and daughter Edith moved establishment of a contested right-but to a to Alaska, where they remained until July, remedy for the enforcement of a right al- 1905. In the latter part of the year 1903, ready established. When an alleged con- Mrs. Frost wrote to respondent, requesting flict between a statute and the Constitution him to pay the taxes on said property, deis not clear, the implication must always ducting the same from what he owed her if exist that no violation was intended by the sufficient, and stating that, if the taxes exLegislature.” Baer v. Choir, 7 Wash. 638, ceeded the amount thus owing, to send her 32 Pac. 776, 36 Pac. 286; Terry v. Anderson, a bill for the balance, which she would repay. 95 U. S. 634, 24 L. Ed. 363; Cohen v. Wright, Shortly after receiving this letter, respond22 Cal. 293; Judkins v. Taffe, 21 Or. 89, ent went to the city of Tacoma and inquired 27 Pac. 221; Swampland Dist. v. Glide, 44 about said taxes, and was informed that Pac. 451, 112 Cal. 35; McCormick v. Alex- the property had been sold to the county ander. 2 Ohio, 65, 78; Borrman v. Schober, for delinquent taxes. Ile did not immediate18 Wis. 437; Sohn v. Waterson, 17 Wall. ly answer appellant's letter. She again (U. S.) 596, 21 L. Ed. 737; Stine v. Bennett, wrote him in the early part of 1904, making 13 Minn. 153 (Gil. 138); Bagby v. Champ, the same request, whereupon he again visited 83 Ky. 13; Whitehead v. Latham, 83 N. C. the county treasurer's office, and learned that 232; Cooley, Constitutional Limitations (7th | the property would be sold by the county Ed.) pp. 2,55, 515-524; 6 Am, & Eng. Enc. of

soon thereafter. He then wrote to Mrs. Law (20 'Ed.) p. 952. See, also, cases cited Frost, telling her that the property would be in former opinion.

advertised for sale, and sold in the near The order appealed from is reversed, with future, and that he would attend the sale, Instructions to the honorable superior court i and bid in the property if it did not sell to dismiss the petition.

too high. Mrs. Frost claims that in his let

ter to her he stated that he would bid in MOUNT, C. J., and IIADLEY and CROW,

the property for her. The respondent denies JJ., concur. FULLERTON, J., concurs in

this. The letter which he wrote was not the result,

produced in evidence; the appellant Mrs.

Frost stating that the same had been lost. (14 Wash. 185)

The letters of Mrs. Frost to respondent were FROST et al. v. PERFIELD.

not introduced in evidence, the respondent

claiming that said letters had been lost. (Supreme Court of Washington. Oct. 23, 1906.)

The respondent attended the sale, and bid TRUSTS - CONSTRUCTIVE TRUSTS - BREACH OF

in the land for $160. Mrs. Frost returned DUTY BY AGENT. A lessor, after removing from the state,

from Alaska about July, 1905, and immediwrote the lessee, who was a friend and neighbor, | ately called upon respondent to find out about asking him to pay the taxes and to deduct the her land. Respondent told her he had bought amount thereof from any sum due the lessor, whereupon the lessee made an investigation as to

in the land for $460, and that he would conthe taxes and wrote the lessor that at the tax vey it to her if she would pay him $650. sale he would bid in the land for her in case She and her son testify that respondent statit did not sell too high, and on the tax sale he

ed that he ought to have the difference bebid in the land. Held, that the lessee could not retain the property, and the lessor was entitled

tween $460 and $650 for his trouble, time, and to a decree requiring a conveyance on payment money. Mrs. Frost claims that, at the first of the amount paid at the tax sale, with interest. interview, respondent did not intimate that

[Ed. Note.--For cases in point, see vol. 47, he had bought the land for himself. She saw Cent. Dig. Trusts, 88 121-124, 147, 153.]

him again soon thereafter, and tendered the Appeal from Superior Court, Pierce Coun

money he first demanded, and asked for a ty; W. H. Snell, Judge.

deed. On: his refusal to execute and deAction by Mary Jane Frost and others

liver such deed, this action was brought. against James Perfield. From a judgment in Trial was had by the court without a jury, favor of defendant, plaintiffs appeal. Re

and findings and conclusions made and enversed and remanded, with instructions.. tered in favor of respondent. From a judg

Boyle & Warburton, for appellants. Geo. ment entered thereupon this appeal is taken. T. Reid, for respondent.

We think the judgment must be reversed.

It is urged by respondent that he did not ROCT, J. In the year 1899 the appellant promise to buy in this property for appelMrs. Frost let a tract of land owned by her lants, and that he was under no obligation and the other appellants to the respondent to do so. It is very evident, however, from at a rental of $20 per year. The respondent the evidence, that the appellants understood leased the property principally on account of the letter which they received from respondent to mean that he would buy in the property MOUNT, C. J., and CROW, HADLEY, as their agent. He was their tenant, and | FULLERTON, RUDKIN, and DUNBAR, JJ., had been their neighbor, and they had writ- concur. ten to him to ascertain about the condition of

the taxes upon this property. When he received that letter, it was optional with

(44 Wash. 189) him whether he would comply with their

PETERSON v. STEINHOFF et ux. request or not. He could have declined to (Supreme Court of Washington. Oct. 23, 1906.) do anything in the matter, or he could have

COVENANTS-ACTION FOR BREACH-EVIDENCE written and told them to secure the services -JUDGMENT AS EVIDENCE OF PARAMOUNT of some other person. Instead of doing this,


Where plaintiff was awarded possession in he complied with the request, to the extent

ejectment against the grantee in a deed of genof going to Tacoma and making inquiries at

eral warranty, the grantee having given the the county treasurer's office relative to these grantor notice of the pendency of the action, and taxes. When he did this, he constituted him

neither the grantee nor grantor having defended, self the agent of appellants. Upon receiving

the grantee was not entitled to recover in an

action on the warranty on a mere showing of the second letter, he again visited the treas- the judgment in ejectment and the notice to urer's office and ascertained the condition the grantor; it being necessary for the grantee of the property with relation to the taxes.

to further show that in the ejectment suit there

was in issue a question as to whether the title of When he wrote to Mrs. Frost and told her

plaintiff in ejectment was paramount to the title the condition in which he found the prop- of the grantor at the time of the conveyance. erty, it was in answer to her letter requesting [Ed. Note.-For cases in point, see vol. 14, him to investigate the matter, and she had

Cent. Dig. Criminal Law, 88 221-223.) a right to suppose that he was acting, not

Appeal from Superior Court, Lewis County; only at her request, but in her behalf. A. E. Rice, Judge. view of the relationship existing between the Action by Mads Peterson against Theodore parties, and of all the circumstances, we Steinhoff and wife. From a judgment in think that he was not justified in buying in favor of defendants, plaintiff appeals. Afthe property for himself without plainly in- firmed. forming the appellants of that intention. If Mrs. Frost's version of what respondent's

Merrill & Merrill, Millett & Harmon, and

W. E. Southard, for appellant. Forney & letter contained is the true one, there could

Ponder, for appellee. be no question of respondent's duty in the premises. But, accepting the evidence of the

RUDKIN, J. On the 25th day of April, respondent himself, to the effect that he

1902, the defendants Steinhoff and wife constated that he was going to bid in the prop

veyed to the plaintiff, Peterson, lots 3, 4, and erty if it did not go too high, we think

5 of block 13 in the town of Almira, Lincoln such a statement, under the circumstances

county, Wash., by deed of general warranty, of the case, was well calculated to make ap

in consideration of the sum of $1,250 to them pellants believe, and that they did believe,

in hand paid. In the month of March, 1904, that respondent was intending to bid in the

A. W. Salisbury and wife commenced an acproperty as their agent and for their bene

tion in the superior court of Lincoln county fit. II, when he wrote that letter, he in

against the plaintiff, Peterson, for the recovtended to bid in the property for his own

ery of the possession of said lots, and for a use and benefit, we think it was his duty to

judgment quieting their title thereto. have so stated, plainly and unequivocally.

mediately after the service of the summons in He does not claim to have so done. Where

said last-mentioned action, the plaintiff, Petwoman and her children rely upon a

erson, served on the defendants Steinhoff and neighbor and tenant, whom they have in

wife a written notice of the commencement trusted to look after a matter in their be

of said action, requiring them to appear and hall, under such circumstances as are here

defend the same upon the covenants of warpresented, they should not be compelled to

ranty contained in their deed. No appearsuffer as victims of misplaced confidence un

ance was entered in this action by either less the law or right of the matter clearly Peterson or the Steinhoffs, and, on the 6th necessitates such punishment. Such is not

day of May, 1904, judgment was given by dethe case here.

fault, quieting the title to said lots in SalisThe judgment of the honorable superior bury and wife, and awarding them the poscourt is reversed, and the cause remanded, session thereof. Thereupon this action was with instructions to enter a judgment and commenced to recover damages for breach of decree requiring the respondent to convey

vey the covenants of warranty contained in the to appellants the property in question upon deed from the Steinhoffs to Peterson. The payment of the $460 and subsequent taxes complaint alleged, and the plaintiff proved, (if any) paid by respondent to the county, the execution and delivery of the warranty together with legal interest thereon from deed from the defendants to the plaintiff, the date of said purchase to the time of the the payment of the purchase price, the comcommencement of this action, less $60 rent mencement of the action by Salisbury and for years 1903, 1904, and 1905, with legal wife to recover possession of and quiet their Interest thereon.

title to the lots conveyed by the deed, a no.

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