Tolliver v. Great Northern Ry. Co.

WOLVERTON, District Judge (after stating the facts as above). In the view we take of the cause, there is but one question necessary to be determined, which is whether the defendants are, because of the-record, estopped to deny the plaintiff's title. We think they are. Section 4538a, Ballinger's Ann. Codes & Stat. of Washington, provides as follows: “Whenever any person or persons having sold and conveyed by deed any lands in this state, and who, at the time of such conveyance, had no title to [797] such land, and any person or persons who may hereafter sell and convey by deed any lands in this state, and who shall not at the time of such sale and conveyance have the title to such land, shall acquire a title to such lands so sold and conveyed, such title shall inure to the benefit of the purchasers or conveyee or convoyees of such lands to whom such deed was executed and delivered, and to his and their heirs and assigns forever. And the title to such land so sold and conveyed shall pass to and vest In the conveyee or conveyees of such lands, and to his or their heirs and assigns, and shall thereafter run with such land.” This rule is merely declaratory of the law as it existed previous to and independent of statute. Gough v. Center, 57 Wash. 276, 106 Pac. 774. And it was held in that case that “A title obtained through mortgage foreclosure is no exception to the rule.” It is urged that there does not exist such relationship, through privity of estate or title, as renders the rule applicable under the facts and record here found. “Privies” are defined (32 Cyc. 388), among others, as: “All who have mutual or successive relationship to the same rights, * * * persons whose interest in an estate is derived from the contract or conveyance of others; * * * those who have mutual or successive relationship to the same right of property or subject-matter; those whose relationship to the same right of property is mutual or successive.” Now, Tolliver succeeded to whatever right or interest Cyrus had or possessed in or to the land upon which Egbert Springs were situated, and to the water flowing from the springs, so that the right of property was both mutual and successive. Suppose Cyrus had obtained the deed from the state, could any one deny that he would be estopped by his previous warranty although made prior to his entering into' contract with the state for the land? How can it be, therefore, that Tolliver occupies any better position than his assignor? He claims, and must needs claim, through Cyrus, and he took by the assignment only what Cyrus had, burdened with the incumbrance that Cyrus’ own acts created. Pie could acquire nothing more. But it is said that “A privy in estate is a successor to the same estate, not to a different estate in the same property.” Pool v. Morris, 29 Ga. 374, 74 Am. Dec. 68, 70. The estates under consideration were a life estate and remainder, and of course they were distinct and not successive. But here the defendant Tolliver deraigns whatever interest he has through Cyrus, for he could not have a deed from the state but through his assignment from Cyrus. However this may be, if the relationship through privity is not exact and technical, there is a privity in substance and effect, and the law will look through form and technical persuasion to do justice between the parties. This case calls for such an application. The decree of the circuit court will therefore be affirmed, and it is so ordered.