Cameron v. Bustard, 119 Wash. 266, 205 Pac. 385 (1922).

      [No. 16762. Department Two. March 23, 1922.]
      A. DONALD CAMERON, Respondent, v. MILDRED C.
           BUSTARD et al., Appellants. 1


RIGHT - EVIDENCE - SUFFICIENCY. There was no entry upon vacant
real estate under a claim of right which could ripen into title
by adverse possession, by one who, contemplating the acquisition
of title by tax foreclosures, sought from the owner and her agent
permission to enter upon and occupy the premises, and receiving
no reply, moved in and made improvements, later acquiring tax
certificates and filing a complaint in foreclosure in which it
was alleged that the true owner was "the owner" of the premises
and had abandoned the same.

title to real property is not lost by abandonment.

Appeal from a judgment of the superior court for
Pierce county, Card, J., entered June 4, 1921, upon
findings in favor of the plaintiff, in an action to quiet
title, tried to the court. Reversed.

Browder Brown and J. W. A. Nichols, for appellant.

Louis J. Muscek, for respondent.

W. C. Elliott, for defendant Ella M. Buck.


MAIN, J. - The plaintiff brought this action to quiet
title to certain real property of which he was in possession
and which he claimed to own. The defendant
Mildred C. Bustard denied the plaintiff's right, and
asserted ownership to the property. On the issues

1 Reported in 205 Pac. 385.

                CAMERON v. BUSTARD.                     267
 Mar. 1922          Opinion Per MAIN, J.

thus framed, the case came on for trial, and resulted
in a judgment sustaining the plaintiff's title. From
this judgment, Mrs. Bustard appeals.

Mrs. Bustard was the record owner of the property
and, prior to the fall of 1909, had occupied it as a
residence. From the latter part of the year 1909 until
October, 1910, the property was vacant and unoccupied,
Mrs. Bustard having moved to Portland, where
she resided continually up to the time of the trial of
this action. The respondent claims title by deed from
Mrs. Ella M. Buck, which was executed on May 29,
1920. In the fall of 1910, the property being vacant,
Mrs. Buck went into possession of it and remained
there until a short time before she sold and conveyed
the same to the respondent. The respondent's title
rests upon adverse possession, claimed to have been
open and notorious and under claim of right for more
than ten years, or from the time that Mrs. Buck entered
into the possession thereof.

In 1912, Mrs. Buck purchased certificates of delinquency
which were against the property and thereafter
began foreclosure of the same. As the result of such
foreclosure, she received a deed dated February 20,
1915. For reasons which it is not necessary here to
detail, the foreclosure proceeding was void and no
rights are asserted by the respondent from that source.
If the respondent prevails, it must be by reason of
the fact that title had been acquired by adverse possession
for a period of ten years. It will be admitted
that all the elements of adverse possession are present
and that the respondent is entitled to prevail,
providing that Mrs. Buck, when she entered the property,
entered under claim of right, and continued to occupy
the same under a claim of right, prior to the time that
she received the deed as a result of the tax foreclosure.

                Opinion Per MAIN, J.           119 Wash.

Inquiry will first be directed as to whether she entered
the property under claim of right. Before she
entered, she sought out and interviewed a Mr. Gregory,
who had formerly been the agent of Mrs. Bustard and
from whom she sought permission to occupy the property.
She also received from him the address of Mrs.
Bustard in Portland, to whom she wrote a letter with
reference to occupying the property, but no answer was
received to this letter. The property at this time was
in a somewhat dilapidated condition and the city authorities
would not permit its being occupied as a
residence unless it was put in a sanitary condition.
Upon cross-examination, Mrs. Buck testified that, when
she entered the property, it was her purpose to acquire
title through a tax foreclosure. Upon redirect
examination, she modified this to some extent and
stated that the property had been vacant a while and
she "just moved in", and the fact that it was vacant
was what caused her to move in. On cross-examination,
she testified:

"Q. Did he give you authority as her agent to move
into the house? A. He says, 'Mrs. Buck, I cannot rent
the place because there is no sewer there; there is no
toilet; the city had condemned it.' I said, 'If I can fix
that up with the city have I your permission? "Sure',
he said, 'You have my permission.'"

Thereafter, Mrs. Buck occupied the property, put it
in a sanitary condition, made improvements upon it
from time to time, and from the time that she acquired
the tax certificates in 1912, paid the taxes and
assessments which were levied against it. The complaint in
the tax foreclosure proceeding was signed and verified
by Mrs. Buck on the 29th day of March, 1913. The
defendants named therein were Mrs. Bustard and the
unknown owners if any. In the complaint it is recited
that the defendants, one of whom was Mrs. Bustard,

                CAMERON v. BUSTARD.                     269
 Mar. 1922          Opinion Per MAIN, J.

were the owners or the reputed owners of the property.

If Mrs. Buck did not enter under claim of right, and
did not assert a claim of right prior to the time of the
verification of this complaint, the respondent's title
must fail. When one enters into the possession of
property the title to which is in another, there is a
presumption that such entry is in subordination to
the title of the real owner, and it is necessary that a
hostile intent or a claim of right must be shown.
O'Donnell v. McCool,
89 Wash. 537, 154 Pac. 1090.
The evidence in this case will not sustain a finding
that Mrs. Buck entered the property in 1910 under a
claim of right, or that she asserted a claim of right
prior to the tax foreclosure proceeding. The
allegation in the complaint in the tax foreclosure to the
effect that Mrs. Bustard was the owner, which
complaint, as above stated, was signed and verified by
Mrs. Buck, is persuasive evidence that, up to that time,
she had not held the premises by a claim of title hostile
to that of Mrs. Bustard. City of Cleveland v.
Cleveland, C, C. & St. L. Ry. Co., 93 Fed. 113. On the
matter of the claim of right, as we view it, the evidence
goes no further than that Mrs. Buck, knowing the
property was vacant in the fall of 1910, sought
possession from one who she thought was the agent, and
also from the owner. After having sought a right to
enter and having received no reply from the owner,
she went into possession, made improvements and
purchased the tax certificates. The evidence fails to show
a claim of right prior to the tax foreclosure. In the
respondent's brief, there is frequent reference made
to the fact that Mrs. Bustard had abandoned the
property when she vacated it in the fall of 1909 and
went to Portland to reside, but the law is that a
perfect legal title to corporeal real property cannot be
lost by abandonment. 1 C. J. 10. The appellant was

 270    ESTES v. BABCOCK.
                Statement of Case.                119 Wash.

entitled to a judgment quieting her title and placing her
in possession of the property.

The judgment will be reversed, and the cause remanded
with directions to the superior court to enter
a judgment as herein indicated.

JJ., concur.