LICHTY et ux. v. LEWIS et ux., 77 F. 111

ROSS, Circuit Judge. This is an action of ejectment brought in the court below by Liehty and wife against Lewis and wife, in which the defendants in their answer set up, among other defenses, a judgment rendered in a suit brought by Lewis against Liehty and certain heirs of one Mabry, in one of the courts of the state of Washington, to quiet Ms alleged title to the lauds that are the subject of the present action. In that suit judgment was given in favor of Lewis, and against Liehty, in the trial court, and was, on appeal to the supreme court of the state, affirmed. 3 Wash. St. 213, 28 Pac. 356.

In their complaint in the present action, Liehty and wife deraign their alleged title under four of the five heirs of the deceased Mabry, by deed alleged to have been executed by them on the 17th of May, 1889, to the plaintiff Harvey M. Lichty, for a valuable consideration, and at which time plaintiffs allege they were husband and wife. The answer alleges that neither of the plaintiffs ever was a resident of Washington, but that both of them were at the time of the execution of the deed to Harvey M. Lichty, and ever since have been, residents of the state of Nebraska.

To the answer of the defendants, the plaintiffs filed a reply, admitting the judgment pleaded in bar of the action, but setting up the fact that, when the suit in which the judgment was rendered was commenced, the plaintiff, Ida B. Lichty was, and ever since has been, the wife of Harvey M. Lichty, and was not made a party to that suit, for which reason it is urged the judgment rendered therein constitutes no bar to the present action.

Upon a demurrer to that reply, the ruling of the court below was against the plaintiffs on that question, and the case is brought here by writ of error on that point only. 63 Fed. 535. The court below treated the interest conveyed by the deed made to Harvey M. Lichty as community property of Lichty and wife, which it held could be, and was, properly represented by him alone in the suit involving it, and that the wife was not a necessary party thereto. Assuming that, upon the facts as they are made to appear by the pleadings, the interest, if any, conveyed to Harvey M.

Lichty by the deed of May 17, 1889, constituted community property of himself and wife, we think the judgment of the court below should be affirmed, upon the authority of the casé of Leggett v. Boss, áá Pac.

Ill, in which case the supreme court of the state of Washington, where the lands in question are situated, administering the laws of that state, in a case involving community real property there situated, held that the wife was not a necessary party to a preceding action concerning it, to which the husband only was a party, but is concluded by the judgment against the husband rendered in the prior action involving the same subject-matter.

It is true that the court added to that ruling this statement: “There is nothing to show that said action was commenced and prosecuted without her [the wife’s] knowledge -or authority, or against her wishes, or that she sought in any way to interfere therein; and, under the circumstances, she being the wife of the plaintiff, in order to avoid the effect of that judgment, and the presumption that it was brought without her knowledge and consent, it was necessary for her to show facts to the contrary.” Whether any such showing, short of one of fraud, duress, or collusion, would, in the judgment of that court, relieve the wife of the effect of a judgmént against the husband in respect, to community realty, we are not advised.

Certainly, it is not there so decided; for the court states that there was no such proof in that case, nor is there in the case here anything of that nature. Without expressing or indicating our own views in respect to the point decided in the case of Leggett v. Boss, supra, or in respect to the suggestions contained in the above quotation from the opinion in that ease, but following the ruling there made by the highest court of the state in respect to a rule of property within the state, the judgment of the court below is affirmed. . .