See, also, 57 Wash. 324, 106 Pac. 1118. J. W. MOUNT, J. In this case the lower court sustained a motion of the defendants for a judgment on the pleadings, and dismissed the action. The plaintiffs have appealed. nedical witnesses, also constituted error. | judgment of dismissal, plaintiffs appeal. AfAppellant was in no way responsible for firmed. what took place on the street car. It placed neither the injured man nor the respondent upon the car. She was a passenger thereon of her own volition, and any injury to her while such a passenger would not be attributed to the appellant. It was not a part of the res gestæ any more than if this injured man, driven frantic by his own injuries and the loss of his friend, had, in his frenzy, committed a physical injury upon respondent. Who can say to what extent the medical men based their opinion of respondent's condition upon the result of the shock she received while on the street car, nor how much it may have contributed to the finding of the jury as to the extent of those injuries? Ordinarily I should not like to disturb a verdict solely because of the admission of improper testimony, unless the error was so flagrant as to deprive a litigant of a fair and impartial trial upon the issues before the court. Believing this to be such a case, I dissent. The judgment should be reversed and a new trial ordered. It appears from the record in the case that, in the year 1906, Anna Merz, the mother of the plaintiffs and these plaintiffs were joint owners of lots 13 and 14, block 1, of the town of Bremerton. These lots were incumbered by a mortgage and certain mechanics' liens, all of which were afterwards foreclosed, and the property was sold on March 9, 1907, to satisfy the judgments. On April 17, 1907, the defendants purchased the lots from the purchasers at the sheriff's sale. On the same day, Anna Merz, the mother of the plaintiffs, conveyed all her interest in the lots to these defendants. erwards, in the year 1907, the plaintiffs, through their guardian, brought an action against these defendants and others interest Aft GOSE, J., concurs in what is said by MOR-ed to set aside the decree of foreclosure, and RIS, J. MERZ et al. v. MEHNER et al. (Supreme Court of Washington. Feb. 6, 1912.) 1. TENANCY IN COMMON (§ 3*)—EXISTENCE OF RELATION. A mother and her children were joint owners of land incumbered by a mortgage and mechanics' liens, all of which were foreclosed, and the land was sold. The purchaser at foreclosure sold the premises to a third person, who obtained from the mother a deed of her interest. Held, that the third person acquired the interests of the purchaser, subject to redemption, and the title of the interest of the mother; but he was not a cotenant of the children, and the third person's redemption from the foreclosure sale, pursuant to an agreement, did not inure to the benefit of the children. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. § 3.*] 2. MORTGAGES (§§ 586, 542, 548*) FORECLOSURE-SALES-TITLE OF PURCHASER. A sale under foreclosure conveys the whole title, subject to redemption, and under Rem. & Bal. Code, § 602, the right of possession and the rents pass to the purchaser. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 1684, 1561, 1566; Dec. Dig. $$ 586, 542, 548.*] 3. JUDGMENT (§ 713*) — RES ADJUDICATA — QUESTIONS CONCLUDED. to quiet title of the property in themselves. That action resulted in a judgment, quieting title to the lots now in question in the defendants. See Merz v. Mehner, 57 Wash. 324, 106 Pac. 1118. Afterwards this action was begun by the plaintiffs, claiming an undivided one-half interest in the lots. The complaint alleges that, in April, 1907, the mother of the plaintiffs conveyed an undivided one-half interest in the lots to the defendants, who have ever since been co-owners and joint tenants with the plaintiffs; that the property was improved, and the income therefrom amounted to $120 per month, which greatly exceeded the expenses; that on the 17th day of April, 1907, the defendants, for the purpose of defrauding the plaintiffs, entered into an agreement with a judgment creditor, to the effect that such judgment creditor should redeem the property from a prior sale, and that defendants would not redeem the property for the benefit of themselves and the plaintiffs, but would allow the period of redemption to expire, and permit such judgment creditor to secure a deed from the sheriff, and when such deed was delivered such judgment creditor should deed the lots to the defendants for a consid A judgment is conclusive on questions pre-eration equaling the amount of such creditor's sented, or which might have been presented. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1234-1241; Dec. Dig. § 713.*] Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. judgment; that this sum was less than $1,000; that, notwithstanding the defendants were indebted to the plaintiffs on account of the rents received from the property in excess of the amount necessary to redeem, the Action by Elsa Anna Merz and others defendants permitted the said judgment credagainst Theresa Mehner and others. From aitor to redeem in accordance with the above stated agreement, and subsequently took a should be sued by name in the proceeding, and deed in their own names. not under the description of an unknown claimant. tle, Dec. Dig. § 34.*] 3. QUIETING TITLE ( 34*)-PROCEEDINGS [Ed. Note. For other cases, see Quieting Title, Dec. Dig. § 34.*] Appeal from District Court, San Miguel County; before Justice Mills. [1] It is at once apparent that the plaintiffs rely upon the alleged fact that they are tenants in common or co-owners with the defendants. But it is also apparent from the whole record, which is set up in the answer The rule last stated applies notwithstandand not denied, that the plaintiffs and de- ing the confirmee named is an unincorporated fendants are not and never have been co-confirmation recognized and designated as an town; the latter being by the congressional owners or tenants in common. Defendants entity capable of receiving the title. purchased the lots of a purchaser at the foreclosure sale. They purchased the whole interest of the minors, as well as the mother and others, who were parties in those actions, and who were then owners. At the time of the purchase, there were no fiduciary relations existing between the plaintiffs and the defendants. The defendants, up to that time, were strangers to the title. They merely purchased from the purchaser at foreclosure sale, and took his interest, subject to redemption by the parties to the action and other statutory redemptioners. They also acquired the title to all of the interest of Anna Merz, the mother of these plaintiffs. If the agreement was made as alleged, it did not affect the rights of the plaintiffs. Proceedings by George E. Priest and others to require the Board of Trustees of the Town of Las Vegas to execute to them a deed of certain land. From a judgment for the respondents, relators appeal. Affirmed. Veeder & Veeder, for appellants. Charles A. Spiess and S. B. Davis, Jr., for appellees. POPE, C. J. The appellants, Priest, Quick, and Benjamin, brought proceedings in the district court of San Miguel county to require the board of trustees of the town of Las Vegas to execute to them a deed for a tract of land forming a part of what is known as the "Las Vegas land grant." The petition is entitled one for mandamus, but it partakes in form rather of a petition to the court for an order on the trustees (who under the law are appointees of the court) to execute a deed. The petition sets forth as the basis of the claim a certain decree rendered in the district court of San Miguel county on September 15, 1894, quieting plaintiffs' title to the tract in question. There were pleadings denying the force of this adjudication as [2, 3] It was held, in Merz v. Mehner, 57 Wash. 324, 106 Pac. 1118, that the service in the foreclosure action was good as against these plaintiffs. The sale under the foreclosure, of course, conveyed the whole title, subject to redemption. The right of possession and the rents passed, also, to the purchasers. Rem. & Bal. Code, § 602. The other case, Merz v. Mehner, supra, is conclusive of the questions there presented, or which might have been presented. The record here shows that the plaintiffs themselves have not redeemed their interest in the property from the foreclosure sales. The redemp-binding on the defendant trustees, and there tion of the defendants did not inure to the was also a cross-complaint praying the quietbenefit of the plaintiffs, because the plain- ing of defendant's title as against this allegtiffs were not tenants in common or co-own-ed decree. Upon full hearing the court granters with the defendants. The judgment is affirmed. ed a decree dismissing plaintiffs' petition. Some point is made upon the failure of the trial court to sustain a motion to strike out DUNBAR. C. J., and MORRIS and EL- the cross-complaint because having no place LIS, JJ., concur. as a pleading defensive to mandamus. But assuming the proceedings to be in mandamus -a matter as we have above noted not en PRIEST et al. v. BOARD OF TRUSTEES OF tirely clear-there was no prejudice to plain TOWN OF LAS VEGAS. (Supreme Court of New Mexico. Dec. 22, 1911.) (Syllabus by the Court.) 1. QUIETING TITLE (§ 31*)-PROCESS-PUBLI CATION. tiffs for the court below granted no relief upon the cross-complaint, the judgment entered being one merely denying the relief prayed and, as we have seen, dismissing the petition. The gist of the whole cause in our judgment lies in the inquiry as to whether the decree of 1894 was binding against defendants. In this view of the matter, much tes Statutory provisions for the service of process upon unknown claimants by publication in actions to quiet title will be strictly construed. [Ed. Note. For other cases, see Quieting Ti-timony that was produced at the trial and tle, Dec. Dig. § 31.*] 2. QUIETING TITLE (§ 34*)-PROCEEDINGSPARTIES. If it be sought in such a case to bar the known confirmee of a grant, such confirmee much that was argued in this court becomes immaterial. For instance, a large part of the argument here was to demonstrate, contrary to what was held in the decree of 1894, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes that the statute of limitations could not, at the date of those proceedings, run against the Las Vegas grant and in favor of plaintiffs, and that the title decreed in 1894 to plaintiffs proceeded upon a false premise, in that it quieted title upon the statute of limitations when the status of the grant title was such that no rights by limitation could accrue. If, however, the court had jurisdiction, as against defendants, to render the decree of 1894, all the findings upon which that decree proceeds are likewise conclusive against it, and it avails nothing to inquire, as did the trial court, into whether such findings were as a matter of fact properly made. The whole question, therefore, is whether the proceedings of 1894 bind the present defendants. The suit there filed was against certain named individuals (not here involved), and "all the unknown claimants of interest in the premises and lands hereinafter described adverse to complainants." It alleges plaintiffs to be the owners in fee simple of the premises here involved by virtue of adverse possession under color of title for the statutory period preceding the bringing of the suit, and it prays the quieting of title in plaintiffs. There was the following allegation in the complaint: "That the said tract of land lies within the exterior boundaries of that certain grant of land made by the government of Mexico in the year A. D. 1835 to Juan de Dios Maese and others, and known as the 'Las Vegas grant,' the said grant, as your orators are informed and believe, being made by the Mexican government to the said Juan de Dios Maese and others for the use and benefit of the inhabitants and settlers of the town of Las Vegas; that the said grant of land made by the Mexican government to Juan de Dios Maese was known in the archives of the Surveyor General of New Mexico as private land claim No. twenty (20), and as such was, on June 21, 1860, duly confirmed by act of Congress of the United States to the town of Las Vegas, and thereby became segregated from the public domain of the United States." The suit was brought under the provisions of statute now appearing as sections 4010 and 4011 of the Compiled Laws of 1897, reading as follows. "An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto. "The plaintiff must file his bill of complaint in the district court, setting forth the nature and extent of his estate, and describing the premises as accurately as may be, and averring that he is credibly informed and believes that the defendant makes some claim adverse to the estate of the plaintiff, and praying for the establishment of the plaintiff's estate against such adverse claims, ever estopped from having or claiming any right or title to the premises, adverse to the plaintiff, and plaintiff's title thereto be forever quieted and set at rest. Any or all persons whom the plaintiff alleges in his bill of complaint, he is informed and believes make claim adverse to the estate of plaintiff, the unknown heirs of any deceased person whom plaintiff alleges in his bill of complaint, in his life time made claim adverse to the estate of the plaintiff, and all unknown persons who may claim any interest or title adverse to plaintiff, may be made parties defendant to said bill of complaint by their names, as near as the same can be ascertained, such unknown heirs by the style of unknown heirs of such deceased person, and said unknown person who may claim an interest or title adverse to plaintiff by the name and style of unknown claimants of interests in the premises adverse to the plaintiff and service of process on, and notice of said suit against defendants, shall be made in the same manner as now provided by law in other civil suits." The service by publication was under what now appears as C. L. § 2964, which is as follows: "When any plaintiff or complainant, his agent or attorney, in any civil cause pending, or hereafter commenced in any court of record in this territory shall file in the office of the clerk of said court, a sworn petition, bill of complaint, or affidavit, showing that the defendant, or any one or more of them in said cause, resides, or has gone out of the territory, has concealed himself within it, has avoided service of process on him, or is in any other manner so situated that process cannot be served upon him or them, or that his or their names, or place of residence is unknown, or that his or their whereabouts cannot be discovered; in such case it shall be the duty of the said clerk to publish a notice of the pendency of said cause, to said defendant or defendants, in some newspaper published in the county where the cause may be pending." The regularity of the service is not here questioned. Default was adjudged, and the cause went to final decree on September 15, 1894. The decree declares that plaintiff by reason of adverse possession under the statute is the owner in fee simple of the premises, and his title is "confirmed and established in the complaints and each of them against any and all and every adverse claim of the said defendants or any of them or of any person whatsoever, and the said defendants are and each of them hereby is forever barred and estopped from having, claiming, or asserting any right, title, or interest or claim whatsoever in and to the said tract and parcel of land and real estate, or any portion thereof, adverse to the said complainants or any of them, and the title of the said complain name in order that it may appear and defend. To exact less is to open the doors wide to insidious attacks upon property rights, and, indeed, to ignore the statute which in terms provides (C. L. 4011) that persons claiming interests "may be made parties defendant by their names, as near as the same can be ascertained." The cases upon this particular subject are not numerous, but among these Ware v. Easton, 46 Minn. 180, 48 N. W. 775, is very close to the point. In that case it is said: "It is claimed that the summons was defective in not naming Homan the patentee of the land as one of the defendants; and we think this objection well taken. In so far as the records disclosed, he was the owner of the government title. The defendant was bound to take notice that Homan was the patentee of the land, as well from the government records as those of the county. The important provisions of this statute as a means of notice to the unknown claimants are the designation of the names of interested parties who are known and those who appear such by the records, together with the publication of the notice of lis pendens con Did this decree bind the present defendant, "The Board of Trustees of the Town of Las Vegas"? The board was not eo nomine a party, nor indeed was it in existence in 1894. Any effect of the decree upon it must therefore result from its holding under some party to the cause. That it does not hold under any of the individuals named is conceded. That it is not affected by the futile provision of the decree quieting title against "any person whatsoever" is evident. The only remaining alternative is that it is bound because of the fact that "all the unknown claimants of interests in the premises adverse to complainants" are named in the complaint, were cited in the publication, and were decreed against in the court's disposition of the case, and that this was a binding adjudication against defendant under C. L. 4011, above quoted. But in 1894 were the owners of the Las Vegas grant, whom defendant now represents, unknown owners? The complainants certainly knew the exact status of the matter for their complaint, as we have seen, in terms alleged | taining a description of the land, and the recthat the premises were a part of the Las Vegas grant "on June 21, 1860, duly confirmed by act of Congress of the United States to the town of Las Vegas." The complainants thus knew that the town of Las Vegas was the confirmee of the grant, and that, if complainants' title had, by adverse possession, been wrested from any one, it was from such confirmee. Knowing this, we are of opinion that it was their duty to have made the town of Las Vegas a party, and that the term "unknown owners" could not be utilized to divest title from what the act of Congress, no less than plaintiffs' conceded knowledge, told them was the true ownership of the property. ord of the same. If the land appears to have been entered by Homan, and his grantees, if any, are unknown and not disclosed by the records, the most effectual notice to those claiming under him would be to name him in connection with the general designation of such unknown claimants. The statute must be strictly construed and followed, and it is enough that it requires such parties to be specially named. If any one appearing by the record to be the owner of the patent title under the original owner is des ignated, of course, it would not be necessary to name any preceding owner under whom he claimed, but he who appears to be the owner of record must be named, unless the [1] Statutes providing for constructive serv- actual holder of the title can be discovered ice are subject to grave abuse. They are, of and named; that is to say, if it be desired course, necessary, since without them titles to bind unknown parties claiming some right could never be quieted or proceedings in or interest derived from or under the origi rem maintained against nonresident or truly nal patentee of the United States. The same unknown parties. But it is a matter of ju- | rule would apply mutatis mutandis to pardicial knowledge that a published summons ties claiming a separate title under the state in the vast majority of cases fails to reach | through tax sales. The statute was not comthose to whom addressed, and that property is taken with but a theoretical opportunity for the hearing, which is an essential of due process of law. Considerations such as these last named lead the courts to insist upon a strict construction of such statutes, and to hold that, where the real owner may be brought into court by name, his property may not be taken by an advertisement against unknown owners. [2] Where, as in this case, the locus of the title is definitely declared of record and such is confessedly known to the complainant, it is but an exaction of good faith that the bolder of such title should be summoned by plied with in the case under consideration here. The notice was insufficient to bind Braggs, the owner of the patent title at that time, and the judgment is void as to him and those claiming under him." [3] It is said by plaintiffs, however, that the designation of the ownership of the Las Vegas grant as "unknown claimants" was justified upon the grounds that the town of Las Vegas as used in the act of confirmation was a mere aggregation of people without corporate organization, and that the suit became thus one practically against the individuals residing on the grant, and that as to these the designation of unknown owners was neo FENSE. There being no evidence that the position of the parties had so changed that equitable relief could not have been afforded without doing injustice, the defense of laches is not available, Austin, 168 U. S. 685, 18 Sup. Ct. 223, 42 L. following Penn Mutual Life Insurance Co. v. Ed. 626. [Ed. Note. For other cases, see Equity, Cent. Dig. $§§ 207, 210-220, 225, 226; Dec. Dig. § 72.*] essary and proper. It is further said that 15. EQUITY (8 72*)-LACHES-NATURE OF DEthere was no officer upon whom process might be served. We are not, however, impressed with, these contentions. Much that is here said upon the subject was ineffectually urged to the Supreme Court of the United States in Maese v. Herman, 183 U. S. 572, 22 Sup. Ct. 91, where it was contended that the town of Las Vegas could not take the patent to the grant, because it was without legal or corporate existence, a nonentity. The court held, however, that "the town and its inhabitants were certainly substantial entities in fact and were recognized by Congress as having rights and directed such rights to be authenticated by a patent of the United States" and patent issued accordingly. To the claim that there was no officer of the town upon whom process might be served the obvious answer exists that under C. L. § 2964, then in force, service by publication Icould be made, since in that event the defendant "was so situated that process could not otherwise be served upon it." The judgment is affirmed. MCFIE, PARKER, MECHEM, WRIGHT, ROBERTS, and ABBOTT, JJ., concur. RETSCH (RETSCH, Intervener) v. RENE- (Supreme Court of New Mexico. Dec. 8, (Syllabus by the Court.) 1. SHERIFFS AND CONSTABLES (§ 47*)-Com- [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 72-74; Dec. Dig. § 47.*] 2. EXECUTION (§ 249*)-SALE-VALIDITY. Where, at a sale under execution, a sheriff causes to be made out of a judgment debtor's property illegal and improper charges, the sale is fraudulent and voidable. [Ed. Note. For other cases, see Execution, Dec. Dig. § 249.*] 3. EXECUTION (§ 272*) - SALE-WHO MAY PURCHASE. Where real estate is bid in at an execution sale by the attorney of the judgment creditor for himself, and not for his client, he is charged with notice of the fraudulent acts of the sheriff in the conduct of the sale. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 781-788; Dec. Dig. § 272.*] 4. VENDOR AND PURCHASER (§ 237*)-BONA FIDE PURCHASERS-NATURE OF CONSIDERATION. One is not a purchaser for a valuable consideration where the consideration is antecedent debts, without a surrender or cancellation of any written security by the creditor. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 577-579; Dec. Dig. § 237.*] 6. QUIETING TITLE (829*) - DEFENSES The plaintiff having been in possession of the land, laches will not be imputed to her. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 63; Dec. Dig. § 29.*] Appeal from District Court, Santa Fé County; before Justice McFie. Action by Tina Haffner Retsch against Alois B. Renehan and others, and Otto Retsch intervenes. From a judgment for plaintiff, defendants appeal. Affirmed. The plaintiff, Tina Haffner Retsch, widow and sole heir of Louis Haffner, filed her complaint in this action January 20, 1901, against the defendants, Alois B. Renehan and M. R. Fogarty, to set aside certain deed to real estate, and to remove the same as clouds from her title thereto. A. B. Renehan, for appellants. T. B. Catron, for appellee. MECHEM, J. [1-3] 1. In December, 1895, in a cause in the district court of Santa Fé county, A. Z. Monell obtained judgment against Louis Haffner in the sum of $100 and costs of suit, and thereafter, under an execution issued by virtue of said judgment, the sheriff of Santa Fé county sold and defendant Renehan bought in and received a deed from the said sheriff to certain real estate, the property of said HaffRenehan was the attorney of record of ner. Monell, the judgment creditor. The court below found that: "The total for principal indebtedness, interest, costs of suit, and costs of sale should not have exceeded $174," but that the deputy sheriff making the sale announced that "$565 bid, the amount of judgment and costs, would be necessary before there would be any sale," which sum Renehan bid, and the real estate was struck off and sold to him. The court further found that of this sum $375 was for custodian's or caretaker's fees at the rate of $125 per month. The statute makes no provision for fees to a sheriff for the care and custody of real estate under levy by execution. The charge for such fees in this case was, illegal, improper, and extortionate. Renehan is charged with notice of the illegal and fraudulent conduct of the officer making the sale, and there is no room for any argument that a court of equity will not set such a sale aside. [4] 2. On January 23, 1900, Renehan, by *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |