Northern Pac. R. Co. v. Smith, 68 Wash. 269, 122 Pac. 1057

 270    NORTHERN PAC. R. CO. v. SMITH.
                Opinion Per FULLERTON, J.          68 Wash.

in township 10 west, instead of 10 north, is manifestly a
clerical error which would not invalidate the deed.

EXCEPTION - SALE - TITLE ACQUIRED. Where land was sold under
execution in an action against a defendant who had no title or
interest in the property, the purchaser acquired no interest by
virtue of the sale.

ADVERSE POSSESSION - ESSENTIALS - LIMITATIONS - EVIDENCE. To
obtain title by adverse possession and the payment of taxes for
seven years, the possession must be shown to be actual, open,
and notorious under claim and color of right made in good faith;
and it is not sufficient to show mere possession at one time,
and payment of taxes and color of title for seven years.

Appeal from a judgment of the superior court for
Cowlitz county, McMaster, J., entered January 7, 1911, upon
findings in favor of certain defendants, after a trial on the
merits before the court without a jury, in an action to
determine the ownership to money paid into court under an award
in condemnation proceedings. Reversed.

B. L. Hubbell, for petitioner.

Jos. O'Neill and Miller, Crass & Wilkinson, for respondent
Gruber Lumber Company.

               NORTHERN PAC. R. CO. v. SMITH.           271
 Apr. 1912          Opinion Per FULLERTON, J.

Washington Territory of his settlement thereon and of his
intent to donate the same under the act of September
1850, commonly known as the Oregon Donation Act. On
September 29, 1856, James Gardiner, by quitclaim deed,
conveyed the land to William Pumphrey and William A.
Gardiner. In 1857, William A. Gardiner conveyed an
undivided half interest in the land to Charles Bishop,
and in 1858 Pumphrey conveyed a one half interest therein to
Thomas Jefferson Carter. Patent was issued for the land
in August 27, 1871, to the "heirs at law of James Gardiner,
deceased, late of Cowlitz county, Washington Territory."
The heirs are not named individually in the patent, but in
an affidavit accompanying his notification, James Gardiner
swears that he is a widower, and that his heirs at law are his
"two sons, James Alexander Gardiner and William A.
Gardiner." In July 1872, the land was sold by the sheriff of
Cowlitz county, under a warrant directing him to sell the
same for delinquent taxes, to L. P. Smith, and a deed to
Smith for the same was executed on March 29, 1877. In
1879, T. J. Carter conveyed an undivided half interest in
the property to W. V. Smith.

In 1884, Charles Bishop began an action against L. P.
Smith to eject him from the premises. Issue was taken on
his complaint and a trial had, which resulted in judgment to
the effect that the plaintiff take nothing by his suit, the
court holding that the plaintiff was without title to the land.
In 1890, the land was sold by the sheriff of Cowlitz county
to William Pumphrey, under an execution and order of sale
issued out of the superior court of Lewis county in an action
wherein Daniel Marx and Emil C. Jorgensen were plaintiffs
and G. F. Richards was defendant. On February 1, 1900,
Charles Bishop conveyed, by quitclaim deed, all his right,
title and interest in the property to W. A. Gardner, and on
the same day Gardner conveyed the same to C. A. Sturm and
Harriet E. Flack. On June 23, 1900, the land was sold to
C. A. Sturm, as property belonging to the estate of William

 272    NORTHERN PAC. R. CO. v. SMITH.
                Opinion Per FULLERTON, J.          68 Wash.

Pumphrey, deceased. From C. A. Sturm and Harriet
Flack, the land passed by regular mesne conveyances to the
respondent Gruber Lumber Company.

The record shows that the taxes on the land since 1900
have been paid by the Gruber Lumber Company and its
predecessors in interest, the taxes for 1900 being paid in 1900,
and the taxes for 1901 and 1902 being paid in 1902. Since
1903 they have been paid yearly prior to delinquency.

Relative to the possession of the property, the evidence
shows the following:

"C. E. Forsyth, being called as a witness for petitioner
Gruber Lumber Company and being first duly sworn,
testified as follows:

"Direct examination. Questions by Mr. Joseph O'Neill:
Q. Where do you live, Mr. Forsyth? A. At Castle Rock, in
this county. Q. Are you acquainted with the premises
known as lots 4, 5 and 8 of section 27, and lot 2 of section
34, T. 10 north, of range 2 west, Willamette Meridian, in
this county? A. I am. Q. Who was in possession of those
premises in 1900? A. Mr. C. A. Sturm, or the Sturm
Brothers. Q. Did they claim to own it? A. Mr. Sturm
showed me a deed to it. Q. How long was Sturm Brothers
in possession of it? A. Until 1904. They deeded it to me
in 1902 - they deeded it to the Kelso State Bank for me.
It was made that way because I owed the Kelso State Bank
and the deed was made that way to secure the bank. We
gave them a contract by which they were to pay a sum of
money and it would be deeded back to them, but they didn't
pay it. I extended the time for them to pay until 1904, but
they didn't pay and they turned the property over to me in
1904. The bank had deeded the property to me. Q. Who
had possession after that? A. I had. Mr. Swift had
possession in 1907 and 1908 under a contract to purchase, but
he didn't purchase it so I sold it to Gruber Lumber Company
and they have had possession since that, at first under a
contract, and after that by a deed. Q. Were you acquainted
with Mr. L. P. Smith in his lifetime? A. Yes. Q. Did he
ever claim to you that he owned this property? Objection
by Mr. Hubbell. The Court: Is there a claim that Mr.
Smith claimed by adverse possession? Mr. O'Neill: No.

               NORTHERN PAC. R. CO. v. SMITH.           273
 Apr. 1912          Opinion Per FULLERTON, J.

The Court: Then I cannot see where it is material whether
Mr. Smith made a claim that he owned the property or not.
Objection is sustained. Cross-examination. Questions
by Mr. Hubbell: Q. You live at Castle Rock, about
4 miles from this land, do you not? A. Yes. Q. And you
do not see this land very often do you? A. I go up there
once in a while, sometimes quite often. Q. You do not know
anything about the possession of this property of your own
knowledge previous to the time you loaned money to the
Sturms in 1902, did you? A. No, I did not. Q. Do you
know whether or not Mr. Sturm had any arrangement with
Mr. Smith by which Mr. Smith allowed Mr. Sturm to have
possession of this land? A. No, I do not know."

Three several distinct claims were made to the money
deposited by the railroad company as the purchase price of the
land taken. The first was made by the Gruber Lumber
Company, who claimed in virtue of its deeds from Sturm and
Flack, its possession of the property, and in virtue of having
paid taxes thereon for more than seven successive years. the
second claim was made by the heirs of L. P. Smith, who
claimed title in virtue of the tax deed made by the officers of
Cowlitz county to their ancestor. The third was made by
C. A. Sturm and Harriet E. Flack, wire claimed that the title
to the property had rested in then, subsequent to their
purchase in 1900, contending that their conveyance to the
predecessors in interest of the Gruber Lumber Company were
given to secure a money advancement, and for that reason
constituted mortgages. The court held that the Gruber
Lumber Company owned the land at the time of the condemnation
proceedings, and awarded it the money deposited,
finding "that the Gruber Lumber Company, through its
grantors, have had possession of the land since the year 1900,
and now is, and at the time said right of way was taken by
plaintiff was, the legal owner of said land, and by reason
thereof is entitled to receive the money paid into court for
the right of way appropriated for the same." From the
order, the heirs of L. P. Smith have appealed.

The Gruber Lumber Company moves to dismiss the

 274    NORTHERN PAC. R. CO. v. SMITH.
                Opinion Per FULLERTON, J.          68 Wash.

appeal for the reasons, first, that the proposed statement of
facts was not filed and served within the time limited by law;
and, second, that the notice of appeal was not served upon
all of the parties to the original suit by the railway company.

The motion is without merit. The judgment awarding
the money deposited to the Gruber Lumber Company was
entered on January 7, 1911. The proposed statement of
facts was filed on February 7, 1911, and a true copy thereof
mailed at Kelso, Washington, addressed to the attorney for
the prevailing party, at Castle Rock, on February 6, 1911,
in "ample time to reach its destination on the same day."
This was a sufficient service. Bank of Shelton v. Willey,
7 Wash. 535, 135 Pac. 411. As to the second ground of the
motion, it is sufficient to say that the appellant was only
obligated to serve with the notice of appeal the parties
appearing and claiming the money deposited in court. These
the appellant did serve.

On the merits of the controversy, it seems to us clear that
the judgment cannot rest on the ground upon which the trial
court placed it. We have quoted all of the testimony in the
record concerning the possession of the property by the
Gruber Lumber Company and its predecessors in interest.
It will be observed that if we take the direct testimony at its
full face value, it still leaves it uncertain as to the length of
time possession of the property has been held by the Gruber
Lumber Company and its grantors. The witness sworn says
that C. A. Sturm, or the Sturm brothers, were in possession
of the property in 1900, but does not say that they were in
possession for the entire year, while to constitute ten full
years prior to the commencement of the condemnation
proceedings, such possession must have commenced prior to
April 22, 1900. Again, in his cross-examination, he makes
it clear that he was testifying in part from hearsay, as he
says he did not know anything about the possession of the
property of his own knowledge prior to the year 1902. This
court has frequently held that adverse possession sufficient

               NORTHERN PAC. R. CO. v. SMITH.           275
 Apr. 1912          Opinion Per FULLERTON, J.

to ripen into title must be actual, open, notorious and
continuous, and be under a claim of right or color of title.
Lohse v. Burch, 42 Wash. 156, 84 Pac. 722, and cases cited.
Here, then, is no evidence whatsoever as to the character of
the possession held by the claimants, even if we concede it to
be for a sufficient length of time. It is not even said that the
possession was actual, much less that it was open, notorious,
and continuous. Evidence sufficient to show adverse possession
of real property must be reasonably direct and certain as
to all the elements necessary to constitute such possession.
It is not sufficient to show merely that the claimant has been
in possession for the required time. The nature of the
possession must be shown so that the court can know that it has
been of such a character as to constitute adverse possession.
The proofs offered here are deficient in these respects, and are
insufficient to show adverse possession under the rule as we
have laid it down.

But the case is here for trial de novo, and if the facts are
sufficient to support the judgment it must be upheld, even
though it cannot stand on the ground on which it was based
by the trial court. Turning to the record, it is manifest
that the Gruber Lumber Company has not a connected title
from the donee of the United States to the whole of the
property, even if we ignore the tax title of L. P. Smith and
assume as valid all of the intervening deeds from Gardiner to
Sturm. For if we assume that James Gardiner completed a
four-years' residence upon the land and was thus entitled to
convey prior to the issuance of patent, only an undivided half
interest in the land reached C. A. Sturm from that source.
On the other hand, if we assume that only the patentees
could convey the legal title, and further assume that the
W. A. Gardner who conveyed to Sturm in 1900 was the
William A. Gardiner whom James Gardiner made oath was his
son and one of his heirs, his deed would convey but a half
interest in the property, as it is shown there was still another
son who was entitled to a half interest in the property when

 276    NORTHERN PAC. R. CO. v. SMITH.
                Opinion Per FULLERTON, J.          68 Wash.

patented, and whose interests were not thereby conveyed.

But we are unable to find anything iu the record that
warrants us in holding the tax deed void. The trial court in
its findings stated that no possession was taken under it and
that it had lapsed. But the fact recited is contrary to the
record, as the abstract shows an action of ejectment begun
by one of the grantees of James Gardiner to oust the
purchaser therefrom, in which the plaintiff was unsuccessful.
This presupposes possession under our practice, as the
remedy against one wrongfully claiming title to land of which he
is not in possession is a suit to remove a cloud from title or to
quiet title, and not ejectment. The conclusion that the
title had lapsed is also unfounded. If the tax sale was valid,
it passed the fee to the land, and creates a title no more
subject to lapse than is a title acquired by other valid
conveyances. The tax deed itself fulfills the requirement of the
statute as to what it shall contain, is regular on its face, and
was admitted in evidence without objection. Notwithstanding
the proceedings leading up to the sale were not shown, we
think we are required to give the deed full faith and credit
and hold it sufficient to vest in the person to whom it was
executed the full title to the property sold. True the deed
described the land as being in "township 10 west" instead of
"township 10 north," but the error is so manifestly clerical
that the validity of the sale cannot be affected by it. More
than this, the land is also described as the "Gardiner Donation
Claim," which is also sufficient to identify it as the land in
question here.

Nor do we think any effect can be given to the sale under
the execution issued in the case of Marx & Jorgensen v.
Richards. The record fails to show any title or interest in
the land in Richards whatsoever, and no such title or interest
can be presumed from the mere fact that the land was sold
trader execution as his property. It follows as of course that
if Richards had no interest in the property none could be
acquired by the purchaser at such sale.

               NORTHERN PAC. R. CO. v. SMITH.           277
 Apr. 1912          Opinion Per FULLERTON, J.

But it is argued that the Gruber Lumber Company has
acquired title by reason of the seven-year statute of limitations
relating to possession and the payment of taxes. But to
acquire title under this section of the statute, the claimant
must have had actual, open and notorious possession of the
land under claim and color of title made in good faith for
seven successive years, and must have paid all taxes
legally assessed thereon during such time. Undoubtedly the
Gruber Lumber Company has proven that it has paid the
taxes on the land for the period required, and has had color
of title to the same for a like period, but it has utterly
failed to show such a possession as the statute requires. It has
not shown the nature or character of its possession, it has not
shown that the same was actual, or open, or notorious, nor
has it shown any fact from which the character of its
possession can be inferred. The fact that the proofs are deficient
in this respect seems to us significant. Evidence of the actual
character of the possession maintained by the company and
its predecessors in interest was assuredly within the reach of
the company, and the fact that it was not produced leads to
the conclusion that no such possession was maintained as
would comply with the requirements of the statute.

Nor can title be successfully claimed under the section of
the statute relating to vacant and unoccupied land. The
proofs offered fail utterly to meet the requirement of this
section.

Since, therefore, there is nothing to impeach the title
acquired by L. P. Smith at this tax sale, it follows that his
heirs are now, and were at the time of its condemnation by
the railway company, the owners of the property condemned,
and that they are entitled to the money deposited as the
purchase price of the same.

The order appealed from is reversed, and the case is
remanded with instructions to enter an order directing the
money to be paid to the heirs of L. P. Smith, deceased.

DUNBAR, C. J., and PARKER, J., concur.