CARMI DIBBLE, Plff. in Err., v.

BELLINGHAM BAY LAND COMPANY.

(See S. C. Reporter’s ed. 63-74.)

Federal question — adverse possession — State con¬ struction of statute of limitations — commence¬ ment of adverse possession.

court isinsufficent to show that a Federal question was raised ana decided where the recorded opinion of the court shows that the decision was ba«ed on a ground that did not involve a Federal question-

verse possession in Washington.

a state to a statute of limitations of the state will be followed by this court.

person who was entitled to a patent may begin, as against other persons claiming under'the same grant, before the patent is actually issued.

[No. 230.]

Argued April 17, 1896. Decided May J, 1896.

TN ERKOR to the Supreme Court of the

JL Slate of Washington to review a judgment

of that court affirming the decree of the Su-

Note.— As to what necessary to constitute adverse possession; requisites of,— see note to Ricard v. Will¬ iams, 5: 398.

As to mortgagor's possession, not adverse, see note to Higginson v. Mein, 2: 664.

As to the occupancy necessary to constitute adverse possession, see note to Ewing v. Burnet, 9: 624.

As to jurisdiction of Federal over state courts ;

72

perior Court of Whalcom County, Washing¬ ton, in favor of the plaintiff, the Bellingham Bay Land Company against the defendant, Carmi Dibble, decreeing that plaintiff was the owner and entitled to the possession of the land in question, and that the cloud created upon its title by deeds to defendant be removed and plaintiff’s title quieted against all claims of defendant, etc. Dismissed.

See same case below, 4 Wash. 764,

Statement by Mr. Chief Justice Fuller:

This was a complaint filed by the Belling¬ ham Bay Land Company againstCarmi Dibble in the superior court of * Whatcom coun- [65 ty, Washington, on June7, 1891, seeking a de¬ cree quieting plaintiff’s title to certain lands therein described, and establishing the exist¬ ence and validity of a certain power of at¬ torney alleged to have been lost without hav¬ ing been ordered. Defendant disclaimed as to the west half of the property in question, and, after demurrer overruled to an amended complaint, answered by way of denial and assertion of defendant's claim set out in the complaint, and also by way of cross-com¬ plaint. A trial was bad on issues joined and the superior court filed findings of fact and conclusions of law.

The court found that plaintiff was a cor¬ poration duly organized and existing under the laws of the state of Washington with full powers to purchase, own, and sell real estate; that on or prior to March 28, 1862, Thomas Jones and Betsy Jones, his wife, were the owners of a certain donation land claim sit¬ uated in the county of Whatcom and territory of Washington, as particularly described; that these lands were donated to Thomas Jones and his wife, under the donation laws of the United States, and that by virtue of the di¬ vision which was made of them by the sur¬ veyor general, and by the certificate and patent, the west half of the lands was do¬ nated to Thomas Jones and the east half to Betsy Jones, his wife. The court further found that on March 28, 1862, for a valuable consideration paid therefor, Thomas Jones for himself and as attorney in fact for his wife, executed good and sufficient deeds of conveyance for all the tract of land to Edward Eldridge, and that since that date Eldridge had duly conveyed the premises to plaintiff, a small parcel excepted ; that prior to t lie ex¬ ecution of the deed by Jones for himself and his wife, Betsy Jones had duly executed and delivered her power of attorney to Thomas, authorizing him to sell and convey the lands ; that the power of attorney was executed under the seal of said Betsy, and was duly, ac¬ knowledged and witnessed and properly cer¬ tified, but that the same was not placed on the records of the county, but became and still remained lost, and at the date of the execu¬ tion of the deed had not been revoked. The

necessity of Federal question; what constitutes Fed¬ eral question— see note to Hamblin v. Western Land Co. 37: 267.

As to jurisdiction in the United States Supreme Court where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97, Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571.

168 U. S.

Dibble v. Bellingham Bay Land Co. 65-G8

court then described the parcel conveyed by Eldridge to other parties than plaintfff.

<36] *Tlie court further found that “on the said 28th day of March, 1802, the said Eldridge entered into possession of all of the said do¬ nation claim of Thomas Jones and Betsy Jones, and that from that date to the present time the said Edward Eldridge and his grant¬ ees, including the plaintiff in this case, have been continuously and now are in the actual, open, notorious, and adverse possession of all of the said property, under claim and color of title, excepting only the small parcels hereinbefore referred to as having been con¬ veyed to other persons by the said Edward Eldridge; . . . that neither the defendant nor his grantors, ancestors, or predecessors had been seised or possessed of the said premises or any part or parcel thereof at any time since the said 28th day of March, 18(52, and that the defendant is not now in pi ssession of the said land that defendant claimed to be the owner of the premises, and to have procured deeds for the land from persons claiming to be the heirs of Betsy Jones, and had caused these deeds to be recorded in Whatcom coun¬ ty, and had created a cloud upon plaintiff's title ; that there was not sufficient evidence to establish the fact that Betsy Jones died intestate, or that the persons under whom de¬ fendant claimed. Lovatt and others, were the heirs at law of Betsy Jones; that at the time when defendant claimed to have purchased the property from these alleged heirs he had full notice and knowledge of the conveyance previously made by Thomas Jones for him¬ self and his wife, and that he had notice of the existence of the power of attorney under which Jones conveyed as attorney in fact for liis wife, and had notice that plaintiff was in possession of the premises, claiming to be the owner under the Jones’ deed ; and “that it and its immediate grantors had been in the possession of the said premises for more than ten years last past.”

The superior court found as conclusions of law that plaintiff was entitled to the relief prayed (including, among other things, the establishment of “ the existence and validity of the said power of attorney”), and entered a decree that plaintiff was the owner and in possession and entitled to the possession of the land in question, excepting the enumerated 671*parcel ; that defendant was not the owner of the premises or any part or parcel thereof ; and that the cloud created upon the title of the property by the deeds to defendant from Lovatt and others be removed, and plaintiff’s title be quieted against all claims of defend¬ ant: and “that the said power of attorney from the said Betsy Jones to Thomas Jones, her husband, be and the same is hereby estab¬ lished ;” and for costs.

The cause Was then taken on appeal to the supreme court of the state and the decree be¬ low affirmed. 4 Wash. 764. Of the four judges of the supreme court, who partici¬ pated in the decision, all concurred in the judgment, and three, including the chief justice, in the opinion : Thereafter the chief justice signed a certificate and this writ of error was brought.

163 U. S.

Messrs. Alfred L. Black and E. B. Learn¬ ing for plaintiff in error.

Messrs. J. A. Kerr and W. Lair Hill for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By $ 2 of art. 27 of the Constitution of the state, all laws in force in the territory of Washington not repugnant to that Constitu¬ tion were continued in force until they ex¬ pired by their own limitation or were altered or repealed by the legislature.

By S 5 of the territorial act of February 2, 1888, brought forward as £ 1447 of the General Statutes (1 Hill, Stat. & Codes, 500), it was provided that all powers of at¬ torney theretofore made and executed by any married woman joined with her husband and duly acknowledged and certified, and all powers of attorney theretofore made or exe¬ cuted by husband or wife to the other, au¬ thorizing the sale or other disposition of real estate duly *acknowledged, and all con-[OS veyances theretofore and thereafter executed under and by virtue of such powers of at¬ torney and acknowledged and certified as pro¬ vided, should be valid and binding, but no rights vested in third persons should be af¬ fected by anything in the section contained.

Plaintiff in error contends that the validity of that section was drawn in question as re¬ pugnant to the 14th article of Amendment to the Constitution, and its validity sustained in that the supreme court of the state held that the power of attorney and deed executed under it were thereby validated.

The certificate of the Chief Justice of that court was to the effect that in the trial by the court below and on the hearing on appeal “the following question was duly and reg¬ ularly raised, to wit: Whether the power of attorney alleged to exist and to have been made by Betsy Jones to her husband, Thomas Jones, prior to the 28th day of March, a. d.

Eldridge on the 28th day of March, 1862, which said power of attorney and deed, on the respective dates of the execution there¬ of, were absolutely void, were made valid and effective by the retrospective portion of £ 1447 of volume 1 of Hill’s Code of this state;” and that the section thus applied was in violation of the 14th Amendment ; and, further, that the supreme court “did not ex¬ press any written opinion on the question so raised as aforesaid, except such as is neces¬ sarily involved by the decree of this court in the above-entitled action, dated on the 17th day of September, a. d. 1892, and af¬ firming the whole of the decree of the superior court of Whatcom county, state of Washing¬ ton, in the above-entitled action, entered and filed in the office of the clerk of the said su¬ perior court on the 20th day of February, a. d. 1892; and such opinion as is expressed by the statement of this court in its written opinion in the above entitled action, that the color of title necessary to support a claim by adverse possession in respondent, the Belling¬ ham Bay Land Company, rests and depends solely upon a warranty deed from the owner,

73

68-71

Supreme Court of the United States.

Oct. Term,

Betsy Jones, executed by her husband, 69 1 Thomas Jones, by virtue of *the power of attorney urged and alleged by respondent to have been made valid by tiie retrospective part of the said code section , which said statement, as set forth in the opinion of this court, is an integral and necessary part of the decision by this court rendered in artinn¬ ing the said decree of the lower court.”

In respect of the supreme court, it is provided by § 5 of the Code of Procedure of Washington that “in the determination of causes, all decisions of the court shall be in writing, and the grounds of the decision shall be stated and by 68 and 78 it is made the duty of its clerk to record its pro¬ ceedings and enter its orders, judgments, and decrees. And the 13th rule of the court pro vides that “all opinions of the court shall be recorded by the clerk in a well-hound volume and the original tiled with the papers in the case.” 2 Wash. 688.

It is the settled course of decision that this court may examine opinions so delivered and recorded to ascertain the ground of the judg¬ ment of the state court. Krriner v. Shelby R. Co. 125 U. S. 39. 44 [31 : 675, 677].

If the record discloses that a question has been raised and decided adversely to a party claiming the benefit of a provision of the Constitution of the United States, and an¬ other question not Federal has also been raised and decided against such party, and the decision of the latter question is sufficient notwithstanding the Federal question to sus¬ tain the decision, this court will not review the judgment. Eustis v. Bulles, 150 U. S. 361, 366 [37: 1111. 1112],

If it appears that the court did, in fact, base its judgment on such independent ground, or, where it does not appear on which of the two grounds the judgment was based, if the independent ground on which it might have been based was a good and valid one, suffi¬ cient in itself to sustain the judgment, this court will not assume jurisdiction. Klinger v. Missouri , 80 U. S. 13 Wall. 257 [20: 635].

Nor can this result be, in any respect, con¬ trolled by the certificate of the presiding judge, for the office of the certificate, as it respects the Federal question, is to make more 70]certain *and specific what is too general and indefinite in the record, but it is incom¬ petent to originate the question. Parmalee v. Lawrence , 78 U. S. 11 Wall. 36 [20: 48] ; Powell v. Brunswick County Supers. 150 U. S. 433 [37: 1184].

If the conflict of a state law with the Con¬ stitution and the decision by the state court in favor of its validity are relied on. this must appear on the face of the record be¬ fore the decision can be re-examined in this court, and this is equally true where the denial of a title, right, privilege, or im¬ munity under the Constitution and laws of the United States, or the validity of an au¬ thority exercised under the United States, is urged as the ground of jurisdiction.

In its opinion the supreme court of Wash¬ ington, afier stating the case, said: “The proof of two facts was attempted by the respondent, the establishment of either of which would be fatal to appellant’s claim. 74

The facts attempted to be proved were as fol¬ lows: (1) That plaintiff’s title to the land in controversy had been acquired by adverse possession ; (2) that Betsy Jones had executed a power of attorney to her husband, Thomas Jones, authorizing him tQ sell the disputed premises.” Thereupon, after overruling a contention by the appellant that under the pleadings as framed no testimony tending to prove adverse l oldiftg was admissible, the court took up the first proposition, and held that plaintiff had established his title by adverse possession during the statutory period ; that the adverse possession was ac¬ tual, notorious, exclusive, and continuous, under claim or color of title; that Eldridge entered into possession under the highest claim of title, to wit, g warranty deed from the owners, and on the day he received the deed, which was recorded the next day, took actual possession of the land, and maintained it for over twenty nine years before the com¬ mencement of the action or any assertion of defendant's claim: and that defendant had knowledge of Eldridge’s reputed ownership prior to his acquisition of the rights of the alleged heirs. Having reached this result, the court added : “This renders an investiga¬ tion of the second proposition discussed un¬ necessary. ” Thus it appears that the decision of the court rested on a ground that *did[7 1 not involve the question of the validity of the power of attorney and deed. As the record disclosed this ground of defense, and as the opinion put the decision solely on that ground, it would be quite inadmissible to allow a certificate of the presiding judge to overthrow that conclusion. This certificate does not have that effect, and we cannot be¬ lieve that any such result was intended. It was evidently drawn by counsel, as was in¬ deed admitted at the bar, and states that a Federal question was duly raised, but the Chief Justice declined to say that it was decided except as such decision might be in¬ volved in the affirmance of the whole of the decree of the superior court, or by the state¬ ment of the court in the opinion that “the color of title necessary to support a claim of adverse possession.” depended on the deed of Betsy Jones executed by her husband by virtue of the power of attorney.

Although the superior court found as a conclusion of law that plaintiff was entitled “to have the existence and validity of the said power of attorney from Betsy Jones es¬ tablished by decree of the court,” yet the terms of the decree in that regard simply established the power of attorney, which might well enough be held to mean the es¬ tablishment of its existence, it having been lost and not recorded, and not of its val idity ; but if a broader signification be attributed, still the affirmance of the decree which ad- judicated th%t plaintiff was the owner and that defendant was not, and quieted the title of plaintiff, did not amount to a decision of the alleged question, as the legal efficacy of the power of attorney as a muniment of title became immaterial in view of the ground on which the decision of the supreme court was placed.

Nor was the question of the validity of the

163 U. S.

Dibble v. Bellingham Bay Land Co.

71-74

act of February 2, 1888, necessarily disposed of by anything stated in the opinion. The judgment proceeded on claim of title as well as color of title. The court held that Eidridge entered into and maintained ac tual possession under claim of title, and it seems to be settled in Washington that “actu a I, uninterrupted, and notorious possession, under claim of right, is sufficient without color of title.” Moore v. Brownfield, 7 Wash. 2:1

In Prohst v. Presbyterian Church Board of Do¬ mestic Missions, 129 U. S. 182 [82: 642J, this 7 2 |cou rt :*held that it was not necessary that the holder by adverse possession should have a paper title under which he claimed, if he asserted ownership of the land and this as¬ sertion was accompanied by an uninterrupted possession. Ewing v. Burnet, 36 U. S. 11 Pet. 41 [9: 624], and Harvey v. Tyler, 69 U. S. 2 Wall. 328 [17: 871], were cited, and it was said: “The fair implication in both these cases is that wiiere possession is taken under claim of title, it sufficiently shows the intention of the party to hold adversely within the meaning of the law upon that subject. There is no case to be found which holds that this adverse claim of title must be found in some written instrument.” In this case the superior court found that Eidridge and his grantees had been nearly thirty years “continuously and now are in the actual, open, notorious, and adverse possession of all of the said property under claim and color of title.” and this finding was reiterated by the supreme court.

“The intention guides the entry and fixes its character,” said the court in Ewing v. Burnet, supra, and the state courts had no difficulty as to Eldridge’s intention in mak¬ ing the entry. Clearly it was within the province of those courts to determine what constituted a sufficient claim of ownership to set the statute in motion. Eidridge entered with the intention of asserting and did assert ownership and it was for the state courts to say what the effect of that adverse possession was, whether the Jones deed was void or voidable.

Moreover, as to color of title, it is. held in Washington that a void deed, accompanied with actual occupancy, is sufficient to set the stature in motion. Ward v. Huggins, 7 Wash. 624.

This is the usual rule as to general statutes of limitations, though as to short statutes in relation to sales of real estate for taxes a different view has been expressed. Pillow v. Roberts, 54 U. S 13 How. 472 [14: 228] ; Hall v. Law, 102 U. S. 4K6 [26: 219] ; Red- field v. Parks, 132 U. S. 239 [33: 327] ; Hurd y. Biisner, 3 Wash. 1. Prior to December 1, 1881, the limitation of actions for the re¬ covery of real property or the possession thereof was twenty years, and this by the territorial act of that date was reduced to ten years. The general statute of limitations 73 1 was relied on there and there was an ad¬ verse possession for nearly thirty years.

No rule is more firmly established than that this court will follow the construction given by the supreme court of a state to a statute of limitations of a state ( Bauserman

M3 U. S.

v. Blunt, 147 TJ. S. 647 [37: 316]), and we perceive no reason for disregarding it in this instance.

We are of opinion that jurisdiction cannot be maintained on the ground that the valid¬ ity of the act of February 2, 1888, being § 1447 of the General Laws of Washington, was drawn in question and its validity sus¬ tained. It is urged that jurisdiction may be sustained on two other grounds, namely, that a right claimed under the Constitution and laws of the United States, or the validity of an authority exercised under the United States, by virtue of the patent i sued for these lands, was denied by the decision ; and that the validity of the territorial act of December 1, 1881, being § 26 of the Code of 1881, now £ 112 of the State Code of Pro¬ cedure (2 Hill, 37), was drawn in question as contrary to the Constitution, and its val id- ity sustained. Wo are unable to discover that Federal questions in these particulars were raised or disposed of by the decision. The contention seems to be that the patent for this land was not issued until September 6, 1871 ; that the statute of limitations did not begin to run until that date; that as the ac¬ tion was commenced June 9, 1891, a period of less than twenty years elapsed between these two dates, and that the decision of the supreme court, if rested on twenty years’ adverse possession, held that -the bar com¬ menced at a date anterior to that of the patent and in that way denied rights claimed under it; and if rested on ten years, gave a retro¬ spective effect to the act of December 1, 1881, as ten years had not elapsed between that date and the commencement of the action. There does not seem to have been any con¬ troversy as to the effect of the issue of the patent. The superior court in its findings simply referred to the fact that by the cer¬ tificate and the patent the west half of the land was donated to Thomas *and the east, half| 74 to Betsy Jones, and found nothing as to when the patent issued ; and the supreme court made no rife re nee to the matter. If1 resort be had to the evidence, it appears therefrom that the patent issued September 6, 1871, and that the right to the patent matured prior to 1862 when Mrs. Jones left the territory. The execution and delivery of the patent after the right to it had become complete were the mere ministerial acts of the officers charged with that. duty. Barney v. D<>lph, 97 U. S. 652 [24: 1063]; Simmons v. Wagner, 101 U. S. 260 [25: 910], The state courts could properly hold under the circumstances of this case that the statute of limitations w'as set in motion when that right accrued, and was not postponed to the issue of the patent. .

Eidridge did not occupy the position of a stranger to the title, not connected therewith by transfer from the original holder. If the Jones deed was sufficient to sustain claim or color of title if the patent had issued March 28, 1862, its sufficiency for that purpose could not be rendered any the less by the issue of the patent at a subsequent time, and, in any view of the alleged infirmities of the deed, the patent would take effect by relation rather than operate extrinsically to the desti notion , of the claim under the original owners.

75

74-76

Supreme Court of the United States.

Oct. Term,

The judgment of the supreme court was I based on twenty years’ adverse possession. We presume as § 760 of the Code of 1881 provided that no right accrued before theCode took effect should be affected by its provi¬ sions, the court was of opinion that the act of December 1, 1881, could not be availed of to lengthen the time originally prescribed. At all events it was for the state court to deter¬ mine the applicable bar (Murray v. Gibson, 66 U. S. 15 How. 431 [14: 755]), and we cannot take jurisdiction to review its judg¬ ment.

Writ of error dismissed.