PACIFIC BANK v. HANNAH et al., 90 F. 72

MORROW, Circuit Judge (after stating the facts). A motion has been made to dismiss the writ of error on the ground that the bill of exceptions, although filed within the term at which judgment was rendered, was not presented to, and allowed bj, the judge of the court below until after the expiration of the term. We think that the fact that the bill of exceptions was filed within the term at which judgment was rendered is sufficient to preserve the rights of a party in presenting the bill of exceptions for allowance and settlement. U. S. v. Breitling, 20 How. 252; Dredge v. Forsyth, 2 Black, 563, 568; Davis v.

Patrick, 122 U. S. 138, 7 Sup. Ct. 1102; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544, 9 Sup. Ct. 150; Hume v. Bowie, 148 U. S. 245, 253, 13 Sup. Ct 582; Waldron v. Waldron, 156 U. S. 361, 378, 15 Sup. Ct. 383; Woods v. Lindvall, 1 C. C. A. 34, 48 Fed. 73. While the assignments of error are fifteen in number, they can be said to raise but three general questions of law, which will be determinative of the errors claimed:

(1) Whether the conveyance from Matthews to Mary A. Givens, her husband, James H. Givens, having died, operated to vest in her any title which she could convey to McDonald to the land in controversy; (2) whether she was, under the law's of the territory, now state, of Washington, an heir of James PI. (livens, and, as such, succeeded to all his right, title, and interest to the same; and (3) what is the force and effect, in this case, of the decree of (lie court below rendered in the partition suit of McDonald v. Donaldson, 47 Fed. 765, wherein it was held that Mary A. Givens was an heir of James H.

Givens, and, as such, succeeded to all the right, title, and interest which the former had in the land in controversy, and that her conveyance to McDonald of such interest was valid and operative? As to the first question, we are of the opinion that the conveyance by Matthews, under his power of attorney, to Mary A. Givens, was absolutely null and void. The conveyance was made after the death of Givens, and the power of attorney, under which the pretended conveyance was made to Mary A. Givens, not being coupled with an interest, was revoked by the death of Givens. Hanrick v. Patrick, 119 U. S. 156, 174, 7 Sup.

Ct. 147; Frink v. Roe, 70 Cal. 296, 11 Pac. 820; Louis v. Elfelt, 89 Cal. 547, 26 Pac. 1095; Rowe v. Rand, 111 Ind. 296, 12 N. E. 377; Story, Ag. § 489. See, also, McClaskey v. Barr, 50 Fed. 712. That being true, the conveyance by Matthews to Mary A. Givens, the widow of James H. Givens, was void, and her transfer to McDonald equally so. The attempted partition was inoperative and void, for it is well settled that a voluntary partition, which is not binding on all the co-tenants, is not binding on any. Sutter v. City and County of San Francisco, 36 Cal. 112; Gates v. Salmon, 46 Cal. 361; Hill v.

Den, 54 Cal. 7; “Center v. Davis, 113 Cal. 307, 45 Pac. 468. This principle was recognized by the court below in the cases of McDonald v. Donaldson, 47 Fed. 765, and McDonald v. Hannah, 51 Fed. 73; in the former of which cases, as previously stated, the court held the attempted partition void, and proceeded to make an equitable partition of the land. In so doing, it partitioned the interest in the land of James H. Givens, deceased, as one of the tenants in common, to Mary A. Givens, his widow, upon the assumption that she was his sole heir at law.

This brings us to Hie consideration of the second and third questions involved, which will be considered together. The case of McDonald v. Donaldson, supra, is relied on by the plaintiff in error as settling the question that Mary A. Givens was entitled, as heir at law of James H. Givens, to the land in controversy, and that her conveyance to McDonald and that by the latter to the plaintiff in error are valid.

Aside from the fact that none of the present defendants, nor the county of Pierce, from whom they claim to hold possession, were parties to that suit of partition, it appears that the question whether or not Mary A. Givens was the sole heir at law of James H. Givens was not raised or mooted in that suit. To be sure, it was involved in the case; for,' James H.

Givens being dead, the court below, in making its equitable partition of the entire tract of land, had to make some disposition of Givens’ interest as a tenant in common, and, in so doing, no question appearing to have been raised about it, assumed that Mary A. Givens, his widow, was also, under the laws of the territory, now state, of Washington, his sole heir at law. That the court assumed that Mary A. Givens was the heir at law of James H.

Givens, and, therefore, entitled to the land in controversy in this case, and that it was in error in this assumption, is established by the decision of the same court in the subsequent case of McDonald v. Hannah, supra. In that case the question was directly raised and determined. That case purported to involve the same land in controversy in the case at bar, the same defendants, and was also an action in ejectment. The only difference, which is one merely of form, is that plaintiff's grantor was plaintiff in that case.

It was also an action of ejectment, and substantially the same grounds were urged for and against the proposition that Mary A. Givens was the sole heir at law of James H. Givens, and therefore succeeded to all his right, title, and interest. The learned judge of the court below, in that case, thoroughly considered this question, and, in holding that she was not his sole heir at law, used the following language: “The land in controversy is part of tlie tract involved in the case of McDonald v. Donaldson, 47 Fed. 765 (recently determined in this court). The husband of Mary A.

Givens, with other persons, acquired the title to said tract as tenants in common, and by transactions between themselves and a succession of untoward occurrences, as shown by the published statement and opinion of the court in that case, the title became snarled; one of the most serious complications being caused by the death of Givens, which occurred in the year 1873. Being nonresidents, the statutes of the territory in relation to the property rights of married persons enacted prior to his death were inapplicable to Mr. and Mrs. Givens, and conferred no rights upon the widow.

Neither was she, by the laws then, in force, entitled to take any part of her husband’s real estate by inheritance. The partition deed made to her by Matthews as attorney in fact was void, for the reason that, by the death of her husband, the power of attorney under which Matthews acted was annulled. She had a right of dower, and nothing more. But the demanded premises have not been awarded to her in any proceeding according to the statute for assignment of dower.

Tnerefore her grantees acquired" no right, title, or right of possession by the deed from her, even if the execution, delivery, and validity thereof be assumed.” That decision was rendered in 1892. An appeal was taken to this court, and the judgment was reversed on a question of pleading, and the case remanded for a new trial. See 8 C. C. A. 426, 59 Fed. 977. We are not advised by the record what, if anything, further was done in that case. The case can, therefore, not be considered as controlling in this court. An independent examination, however, of the law on the question as to whether Mary A.

Givens was the sole heir at law of James H. Givens, involved in this case and in the previous case of McDonald v. Hannah, satisfies us that the court below was correct in so far as it held that Mary A. Givens could not be considered, under the laws of the territory, now state, of Washington, the sole heir at law of James H. Givens. A perusal of the opinion of this court, reversing the judgment of the lower court in that case, will show that the ground of reversal was not based on the question whether or not Mary A. Givens was the sole heir at law of James H. Givens.

With reference to the weight to be given the previous decision of McDonald v. Donaldson, wherein the court below assumed that Mary A. Givens was tbe sole heir at law of James H. Givens, the learned judge thus expressed himself: “The defendants are not, however, concluded by said decree, nor can they be denied their day in court to put in issue the validity of plaintiff’s pretended right to the demanded premises, and subject the same to the test of a judicial determination.

Neither the defendants nor the heirs or legal representatives of Givens were in court as parties to the partition suit, and by the course pursued by those who were parties the court was precluded from investigating or deciding the questions affecting the plaintiff’s pretended title now in issue, in view of these facts, the court could not, by its decree, create a new and original title, nor devest the true owner of his title to the premises, and against the parties in actual possession the decree affords no ground for a judgment of ouster.” The views expressed by the learned judge of the court below in the case of McDonald v.

Hannah were undoubtedly correct. A further reason why that case is not conclusive is that the parties are not the same. None of these defendants, nor the county of Pierce, from whom the defendants claim, were made parties to that suit. The court below, however, very properly admitted the judgment and decree in that (‘ase in the present case. It was admissible in favor of plaintiff, but was not conclusive upon tbe defendants. Barr v. Gratz’s Heirs, 4 Wheat. 213; Delano v. Bennett, 90 Ill. 533; Benefield v. Albert (Ill. Sup.) 24 N. E. 634.

Besides, a decree of partition does not operate to create or devest a title to land. Its purpose Is to divide and set ajiart to each of the tenants in common his or lmr respective share or portion. That was, manifestly, all that the equitable partition made by the court below, in McDonald v. Donaldson, of the tract of land, of which a portion thereof is in controversy in this case, was intended to and could do. It did not purport to create a title where none existed, nor to devest a title which had accrued or attached. As was said in Wade v.

Deray, 50 Cal. 376, 380: “It is well settled that a decree or judgment in partition lias no other effect than to sever the unity of possession, a,nd does not vest in either of the co-tenants any new or additional title. After the partition each had precisely the same title which he had before, but that which before was a joint possession was concerted into a several one.” See, also, McBrown v. Dalton, 70 Cal. 89, 11 Pac. 583; Traver v. Baker, 15 Fed. 186. In so far as the decree of partition in the case of McDonald v.

Donaldson operated to do (his, it was valid and binding; but when it jiurported to create in Mary A. Givens a title, right, or interest in the land which, by the laws of the territory, now stale, of Washington, she did not possess, it follows that it was, to that extent at least, inoperative and void. By the death of James H. Givens, intestate, and without heirs, his widow not being, as- has already been seen, Ms heir at law under the laws of Washington, his estate escheated to the county of Pierce. Laws Wash. 1862-3, pp. 261-264, §§ 340, 352; Abb. Beal Prop. St. pp. 375-377; Territory v. Klee, 1 Wash.

St. 183, 188, 23 Pac. 417; 6 Am. & Eng. Enc. Law, pp. 856, 857, and cases there cited. The court below was, therefore, right in finding that Mary A. Givens had no title, right, or interest, at law, in the land in Controversy, which she could convey, and that the conveyance by her to Frank V. McDonald, and the conveyance by Frank V. McDonald to the plaintiff in error herein, did not vest either of said grantees with any right, title, or interest in said premises. It is true that the escheat was subject to the dower right of Mary A. Givens during her life.

It appears, from the seventh finding of fact, that she died in the city of Portland, Or., on September 13, 1894, being at the time a resident of said state. It further appears that she never resided in the late territory, now state, of Washington. As it does not appear that her right of dower was ever set off to her, it follows that she acquired no right to convey the land, and that her conveyance to McDonald, even of her dower right, would have been null and void.

Such being the state of the case, it follows that the plaintiff in error could not succeed in its action of ejectment against the defendants, for it must recover on the strength of its own title. Marsh v. Brooks, 8 How. 223, 233, 234; Sabariego v. Maverick, 124 U. S. 261, 8 Sup. Ct. 461; Trenouth v. Gordon, 63 Cal. 379; Townsend v. Estate of Downer, 32 Vt. 183; Dyke v. Whyte, 17 Colo. 296, 29 Pac. 128. The defendants were not mere trespassers. They pleaded possession from the county of Pierce, and proved that they held such possession by virtue of some written agreement from the county of Pierce.

The plaintiff in error failed to prove any possession, but relied entirely on its paper title. The judgment of the circuit court is affirmed.