GILBERT, Circuit Judge.
As the facts in this case are set forth in the dissenting opinion in this case, it is unnecessary to state then: here. It is not contended in this court that a valid tax title to the premises in controversy was ever acquired by the appellants, but it is urged that the court below erred in ruling that the suit was not barred by that provision of the act of the Legislature of Washington, approved Dec. 1, 1881, which was embodied in the Code of that year as section 8,989. That section provides as follows:
“Any suit or proceeding for the recovery of hinds sold for taxes, except in eases when the taxes have been paid or the land redeemed as provided: by law. shall be eoimmmeefi within three years from the time of recording the tax deed of sale, and not thereafter, except by the purchaser at the tax sale.”
We think there can be no doubt that this provision of the statutes has been repealed. When adopted,_ it was a part of an act entitled “an act to provide for the assessment and collection of county and territorial revenue,” which purported to he a complete system of taxation. A new revenue act and system of taxation went into effect on March 15, 1893, p. 385, c. 124, § 137, of which provides:
“All acts and i>ai'ts of acts heretofore enacted by the Legislature of the ■ erritory or slate of Washington, providing for the assessment and collection of taxes in this state, shall he, and the same are, hereby repealed.”
Section 2939 of the Code of 1881 was a part of the revenue act of that year, which provided for the assessment and collection of taxes. Being a part of that act, it is repealed by the subsequent act of 1893. The Supreme Court of Washington so construed the law in an analogous case. Tacoma School Dist. v. Hedges, 13 Wash. 69, 42 Pac. 522.
Should the demurrer to the bill of complaint have been sustained on the ground that the appellees made contradictory allegations therein as to the title, and in substance admitted the title to be in the appellants? We find no ground for so holding. The bill alleged title in fee and possession of the premises in the appellees, the delinquency of taxes on said property, the entry of a pretended judgment and lieu for the unpaid taxes, the sale under the pretended judgment, and the purchase thereof by one of the appellants, and the execution of a tax deed to such purchaser, and then set forth the defects in the tax proceedings, which show on their face the invalidity of the title thereby attempted to be acquired. It alleg-ed that, by reason of these defects so set forth, the tax deed under which the appellants claim is and was wholly void and of no effect, and the prayer was that it be so adjudged and decreed by the court. These allegations are not contradicted by the language of the eighth paragraph of the bill, in which, in describing the conveyance made to the defendants, it is alleged that a tax deed was issued hearing date May 18, 1901, “whereby and [20]*20by the terms of which, said county treasurer granted and conveyed unto said Charles E. Kraus, his heirs and assigns, the real estate and premises aforesaid, which said deed was in the form prescribed by law and purported to have been given pursuant to the aforesaid judgment.” It is clear that the pleader intended to, and did, by this allegation describe only the purport and tenor of the conveyance. It is true that, by the terms of that deed, so far as its mere terms are concerned, the county treasurer granted the described property to Kraus, and his heirs and assigns; but it does not follow that by so stating the appellees alleged that title passed thereby. On the contrary, the bill distinctly alleged that title did not pass thereby. Such was the understanding of the pleading by court and counsel in the court below. Counsel for the appellants accepted the bill as sufficient in that respect, and they make no contention in this court, and we may presume that none was made in the trial court, that the appellees had alleged the title to be in the appellants. There was a demurrer, on the ground that it appeared from the bill that the complainants therein had' no title to the property; but that was based solely on the contention that the defects in the tax proceedings as set forth were not such as to invalidate the alleged tax title. It has not occurred to the ingenuity of counsel for the'appellants to contend that the eighth paragraph of the bill expressly alleged the title to be in them.
The appellants earnestly contend that the trial court erred in holding that the appellees had an interest in the subject-matter of the suit such as to authorize them to maintain the suit. The bill alleged that the appellees were the owners in fee, and were in the possession of the premises in controversy. On the trial they produced no proof of their title. The statute under which this suit was brought does not require that the plaintiff shall have the title or any interest in the property. “Where the statute authorizes any one in possession to maintain the suit, mere possession without title is sufficient to maintain it as against a trespasser or one who establishes no title in himself.” 17 Ency. of Pleading & Practice, 314; Gillis v. Downey, 85 Fed. 483, 488, 29 C. C. A. 286; Durell v. Abbott, 6 Wyo. 265, 44 Pac. 647; Scorpion v. Marsano, 10 Nev. 370; Calderwood v. Brooks, 45 Cal. 519. Since they were not required to plead the title, the appellees were not obliged to offer proof of title when they had pleaded it. Wilder v. City of St. Paul, 12 Minn. 192 (Gil. 116).
We find no ground for the assumption that the appellees were trespassers, or that their possession was obtained by fraud, collusion, or other wrong. There is nowhere in the record any suggestion of fraud or collusion. In order to malee their entry a trespass, there must have been possession at the time in the appellants; for it is a well-settled rule that in order to maintain trespass quare clausum fregit, there must be either actual possession in the plaintiff at the time of the trespass, or a constructive possession based upon the legal title. Actual and constructive possession are the only forms of possession known to the law. Constructive possession, or legal possession as it is sometimes called, is that possession which the law imputes to the holder of the paramount title to unoccupied land. 28 Ency. of Law, 239. Simmons Creek Coal Co. v. Doran, 142 U. S. 442, 12 Sup. Ct. [21]*21239, 35 L. Ed. 1063. The defendants clearly had no constructive possession, because they had not the legal title. There is no such thing as constructive possession based on color of title. Had they the actual possession? The appellants in their brief admit that the lots were “vacant, and not occupied by any one,” and that there were no improvements thereon. The utmost of their contention in thal regard is that they claimed the lots and had paid the taxes thereon. Their mere claim of ownership was no act of possession, and the same is true of their payment of the taxes. “The payment of taxe^ upon land does not constitute actual possession of it” (1 Cyc. 992), and the weight of authority is that the payment of taxes is not even to be regarded as a circumstance to be considered with other facts as proof of possession (Id., and cases there cited).
The question here is not what motive had the appellees in entering into possession, but what rights of the appellants were invaded thereby. It is immaterial that the possession was taken for the purpose of instituting the suit, so long as the appellees did not act tortiously or disturb a prior possession in another. Apperson v. Allen. 42 Mo. App. 539.
Free access — add to your briefcase to read the full text and ask questions with AI
GILBERT, Circuit Judge.
As the facts in this case are set forth in the dissenting opinion in this case, it is unnecessary to state then: here. It is not contended in this court that a valid tax title to the premises in controversy was ever acquired by the appellants, but it is urged that the court below erred in ruling that the suit was not barred by that provision of the act of the Legislature of Washington, approved Dec. 1, 1881, which was embodied in the Code of that year as section 8,989. That section provides as follows:
“Any suit or proceeding for the recovery of hinds sold for taxes, except in eases when the taxes have been paid or the land redeemed as provided: by law. shall be eoimmmeefi within three years from the time of recording the tax deed of sale, and not thereafter, except by the purchaser at the tax sale.”
We think there can be no doubt that this provision of the statutes has been repealed. When adopted,_ it was a part of an act entitled “an act to provide for the assessment and collection of county and territorial revenue,” which purported to he a complete system of taxation. A new revenue act and system of taxation went into effect on March 15, 1893, p. 385, c. 124, § 137, of which provides:
“All acts and i>ai'ts of acts heretofore enacted by the Legislature of the ■ erritory or slate of Washington, providing for the assessment and collection of taxes in this state, shall he, and the same are, hereby repealed.”
Section 2939 of the Code of 1881 was a part of the revenue act of that year, which provided for the assessment and collection of taxes. Being a part of that act, it is repealed by the subsequent act of 1893. The Supreme Court of Washington so construed the law in an analogous case. Tacoma School Dist. v. Hedges, 13 Wash. 69, 42 Pac. 522.
Should the demurrer to the bill of complaint have been sustained on the ground that the appellees made contradictory allegations therein as to the title, and in substance admitted the title to be in the appellants? We find no ground for so holding. The bill alleged title in fee and possession of the premises in the appellees, the delinquency of taxes on said property, the entry of a pretended judgment and lieu for the unpaid taxes, the sale under the pretended judgment, and the purchase thereof by one of the appellants, and the execution of a tax deed to such purchaser, and then set forth the defects in the tax proceedings, which show on their face the invalidity of the title thereby attempted to be acquired. It alleg-ed that, by reason of these defects so set forth, the tax deed under which the appellants claim is and was wholly void and of no effect, and the prayer was that it be so adjudged and decreed by the court. These allegations are not contradicted by the language of the eighth paragraph of the bill, in which, in describing the conveyance made to the defendants, it is alleged that a tax deed was issued hearing date May 18, 1901, “whereby and [20]*20by the terms of which, said county treasurer granted and conveyed unto said Charles E. Kraus, his heirs and assigns, the real estate and premises aforesaid, which said deed was in the form prescribed by law and purported to have been given pursuant to the aforesaid judgment.” It is clear that the pleader intended to, and did, by this allegation describe only the purport and tenor of the conveyance. It is true that, by the terms of that deed, so far as its mere terms are concerned, the county treasurer granted the described property to Kraus, and his heirs and assigns; but it does not follow that by so stating the appellees alleged that title passed thereby. On the contrary, the bill distinctly alleged that title did not pass thereby. Such was the understanding of the pleading by court and counsel in the court below. Counsel for the appellants accepted the bill as sufficient in that respect, and they make no contention in this court, and we may presume that none was made in the trial court, that the appellees had alleged the title to be in the appellants. There was a demurrer, on the ground that it appeared from the bill that the complainants therein had' no title to the property; but that was based solely on the contention that the defects in the tax proceedings as set forth were not such as to invalidate the alleged tax title. It has not occurred to the ingenuity of counsel for the'appellants to contend that the eighth paragraph of the bill expressly alleged the title to be in them.
The appellants earnestly contend that the trial court erred in holding that the appellees had an interest in the subject-matter of the suit such as to authorize them to maintain the suit. The bill alleged that the appellees were the owners in fee, and were in the possession of the premises in controversy. On the trial they produced no proof of their title. The statute under which this suit was brought does not require that the plaintiff shall have the title or any interest in the property. “Where the statute authorizes any one in possession to maintain the suit, mere possession without title is sufficient to maintain it as against a trespasser or one who establishes no title in himself.” 17 Ency. of Pleading & Practice, 314; Gillis v. Downey, 85 Fed. 483, 488, 29 C. C. A. 286; Durell v. Abbott, 6 Wyo. 265, 44 Pac. 647; Scorpion v. Marsano, 10 Nev. 370; Calderwood v. Brooks, 45 Cal. 519. Since they were not required to plead the title, the appellees were not obliged to offer proof of title when they had pleaded it. Wilder v. City of St. Paul, 12 Minn. 192 (Gil. 116).
We find no ground for the assumption that the appellees were trespassers, or that their possession was obtained by fraud, collusion, or other wrong. There is nowhere in the record any suggestion of fraud or collusion. In order to malee their entry a trespass, there must have been possession at the time in the appellants; for it is a well-settled rule that in order to maintain trespass quare clausum fregit, there must be either actual possession in the plaintiff at the time of the trespass, or a constructive possession based upon the legal title. Actual and constructive possession are the only forms of possession known to the law. Constructive possession, or legal possession as it is sometimes called, is that possession which the law imputes to the holder of the paramount title to unoccupied land. 28 Ency. of Law, 239. Simmons Creek Coal Co. v. Doran, 142 U. S. 442, 12 Sup. Ct. [21]*21239, 35 L. Ed. 1063. The defendants clearly had no constructive possession, because they had not the legal title. There is no such thing as constructive possession based on color of title. Had they the actual possession? The appellants in their brief admit that the lots were “vacant, and not occupied by any one,” and that there were no improvements thereon. The utmost of their contention in thal regard is that they claimed the lots and had paid the taxes thereon. Their mere claim of ownership was no act of possession, and the same is true of their payment of the taxes. “The payment of taxe^ upon land does not constitute actual possession of it” (1 Cyc. 992), and the weight of authority is that the payment of taxes is not even to be regarded as a circumstance to be considered with other facts as proof of possession (Id., and cases there cited).
The question here is not what motive had the appellees in entering into possession, but what rights of the appellants were invaded thereby. It is immaterial that the possession was taken for the purpose of instituting the suit, so long as the appellees did not act tortiously or disturb a prior possession in another. Apperson v. Allen. 42 Mo. App. 539. The Supreme Court of the state of Washington has held that, under the statute, possession is sufficient to warrant the action to quiet title. Bird v. Winyer, 24 Wash. 276, 64 Pac. 178; Shelton Logging Co. v. Gosser, 26 Wash. 126, 66 Pac. 151. The case last cited was decided on the averments of the complaint. The plaintiff therein, instead of simply alleging title and possession, proceeded to set up the source and deraignment of its title. It was held tlial, inasmuch as the plaintiff had set out the nature of its claim of title, the court was called upon to pass on the question whether it had title, and found that it had none. But the court said: “We understand the rule to he that, in the absence of any showing to the contrary, possession, as a matter of evidence prima facie, establishes title” — and further said: “It may be that all that the appellant was required to do to make out a prima facie case was to establish possession.”
A right so created by a state statute and interpreted by state courts will be enforced in the federal courts in the same manner in which other equitable rights of parties will be enforced. In Central Pac. R. Co. v. Dyer, 1 Sawy. 641. Fed. Cas. No. 2,552, Field, Circuit Justice, held that the statute of Nevada, identical with that of Washington, enlarges the class of cases in which the jurisdiction of equity was formerly exercised in quieting title, and that the right thereby created would be enforced in the national courts. In Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52, it was held that a statute of Nebraska, giving a right to one, whether in possession or not, claiming the title to real estate against any person or persons who claimed an adverse estate therein, to quiet the title thereto, created an enlargement of equitable rights, which may be administered in the' federal courts as well as in the courts of the state.
The decree is affirmed.