Center v. Cady

GILBERT, Circuit Judge (after stating the facts as above). The facts as disclosed in the cross-bill are that for more than 10 years before the commencement of the suit the appellant had been in possession of about 40 acres of land contained in a single inclosure; that he owned the south 20 acres thereof, and thereon had constructed his buildings and improvements; that in 1901 the appellee brought ejectment to recover the north 23 acres, and in 1903 obtained a judgment for the possession thereof; that in the- following year a writ of possession was issued and executed, by the return of which, upon its face, the appellee.was placed in possession of said north 23 acres, but that the marshal by a mistake executed the writ by placing the appellee in possession of the south half of the tract, and that neither the judgment nor the writ operated to disturb the possession of the appellant ip the land which is in controversy. The cross-bill makes no allegation that the marshal did not in fact place the appellee in the possession of the land in controversy, and from the facts as they are alleged it would appear that the marshal may have executed the writ by placing the appellee in the possession of the whole tract. There is no averment that the appellant has paid taxes on the land in controversy, and, conceding that the judgment in ejectment did not operate to disturb the possession unless executed by a writ of possession, the facts stated in the cross-bill fall short of showing that the writ was not in fact executed as it appears on its face to have been executed. Upon that ground alone the relief sued for was properly denied. But there is other ground on which the decree may be sustained. The statute of Washington (Ballinger’s Ann. Codes & St. § 5503 [Pierce’s Code, § 1160]) provides: “Every person in actual, open, and notorious possession of lands or tenements under claim and color of title, made in good faith, who shall, for seven successive years continue in possession, and shall also during said time [607] pay all taxes legally assessed on such lands or tenements, sliall be lield and adjudged to be the lawful owner of such lands or tenements to the extent and according to the purport of his or her paper title.” One of the essential requisites to the relief which the appellant seeks by his cross-bill is that his claim of title shall be made in good faith. There can be no good faith in such a claim, in the face of the decision of a court of competent jurisdiction adjudging that the claimant has no title or right of possession. In May, 1903, the court, from which the present appeal is taken, rendered a judgment in ejectment adjudging the title to the premises here in controversy to be in the appellee. From that time on the appellant could not claim in good faith, unless he acquired a claim of title in some way other than by merely retaining possession of the premises. May v. Sutherlin, 41 Wash. 609, 84 Pac. 585; Ramsey v. Wilson, 52 Wash. 111, 100 Pac. 177. In May v. Sutherlin it was said: “But it should require no argument to show that a party who holds property contrary to and in defiance of the judgment of a court of ■ competent jurisdiction is without color or claim of title, and that good faith is entirely wanting.” The decree is affirmed.