STEVENS V ·. FERRY.
7
that these items should not.. be allowed as part of the necessary of the administration. As to the other excepti9ns, the court believes the findings and report of the specialmaster to be correct; and, consequently, all the exceptions are overrulep"and the report of the special master confirmed.
STEVENS 'D. FERRyet
01. 9G, 1891.)
(Ofrcuf,t Oourt, D. Washington, N. D. October
L COURTS-J'URISDICTION IN FORECLOSURE-LANDS OUTSIDE DISTRICT. Civil Prac. Act Wash. 'r. § 48, providing that actions for the foreclosure of mort-
gagl3s,among others, "shall be commenced in the count\V or district in which the subject 'of the action is situated," gives to a mortgagee whose mortgage covel'll several disconnected tracts of land in different counties and districts the right to foreclose as to all of them by a single suit in any county where one tract 1& situated.
t:. FOREOLOsriRE
Where lands are said oli foreclosure 'of a mortgage, and the mortgagor does not redeemwitbin the time allowed, hEl cannot. afterwards recover them from lobe pUrChaser, or hiB grantee, 011 the ground that DO Valid deed was ever made by the
OF MORTGAGE-RIGHTS OF MORTGAGOR -DEFECTIVE SHERIFF'S DEED.
.
In Equi,ty. ThiEds a suit to settle a controversy as to the title to certain lands situatednear Anacortes, in this state, arising out following facts: 111 the yea.r the complainant, being then the ofthe lands, as security (or aloano{82,OOO, gave a prorqissory note and a mortgage coveripgsaiq lands, which ,were then within the wunty of Whatcom,. and/are now in the county of Skagit. Said mortgage also included real estate situated in1'hurston county. As the courts of the territory "'ere organized' at the times herein referred to, Thurston county was in the 009ond judicial diatrict, and terms oBhe territorial district court were held at Olympia for a subdistrict embracing Thurston, Lewis, Chehalis, and Mason counties. WhatcoUl:.· county. was in. the third j udicinl district, and terms of the district court were held at Port Townsend for a subdistrict embracing Wht\tcom and other counties. In October, 1874, a suit waS commenced by the: owner and holder ofthe note and mortgage against the complainant, in the district court at Olympia, to recover a judgment upon the note, and· for a decree of foreclosure and order of sale of all the lots and tracts of land included iu said mortgage. The complainant, Stevens, voluntarily appeared and submitted to the jurisdiction of: the court in: said cause, and a jUdgment and decree as prayed for were rendere.d against him December 17, 1874. In pursuance of said decree thelltnd in controversy was sold by the sheriff of Whatcom county in July,1875i and the sale was confinned by an order of the district court .at qlympia, December 8, 1875, by whioh the sheriff of Whatcom county was directed to execute. ,& deed 'to the purchaser at the expiration of six months from the date thereof, unless the land should be withig
s
FEDERAL REPORTER,
vol. 48.
tbatperiod redeemed. There has been no redemption made or attempted, and the sheriff's deed was made and delivered as directed. The defendants claim to.own the land, and deraign their titIe from' the judicial sale under said foreclosure proceedings·. In behalf of the complainant it is alleged that the district court at Olympia had uojurisdiction to order or confirm a sale of land in Whatcom county; that the sale was not made subject to redemption, and in other respects the proceedings were not in conformity to the requirements of the statutes of the territory governing execution sales of real estate; that for these reasons the sale was and is void; and, further, that there is no .proof oia valid sheriff's deed having been given. Other points raised by facts alleged in the pleadings of the defendants :have been discussed, but require no further mention in deciding the case, according to my view ofit. . . . .Jl.F. Dennison andI:lowe &: Cor8on, for complainant. " ,WhiU &: Munday, Battle &: Shipley,' Preston, Carr &: Preston, and W. Lair Hill,f?r ..,'" HAN,FORD,J., (after 8tating thefact3 as above.) The courts of Washingwere created oy Act Gong. March 2, 1853,entitled "An act to establish the 10 U. S. St. p. 172. Section 9 of the act contains the following among other provisions: "The judicial power of said territory shall be vested in a supreme court, and of the peace. lie ... * The said district courts, probate territory shaUbe l.j.ivided into three judicial districts, and a district court in each of s.aid flistricts,by one of the justices of the supreme shall be court, atlffich times and places as may be prescribed by law. lie.... ... The jurisdiction oil the several courts herein prOVided for, both appellate and original, and thatof,the,pfO'batecourts and justices afthe peace, sHall be as limited by law; * '" lie and the said supreme and district courts, respectively, s:Qall possess chanc£'ry 3S w.ell as cOI;llmon-law jurisdiction." By the sixth section of the act, power is given to the terl'itoriallegislature, and it is not questioned but what its power to define and limit the jurisdiction oithe district courts, as to SUbject-matter, parties, and territory, Wa.B ·ampltl·. 'fhe object of the organic act in providing for a division of the territor)' into districts was to serve public convenience, and divide the labors of the judges. It was contemplated that the business of the people residing in each district would be transacted in the court for that district; that crimes would be cognizable in the court for the district wherein committed; and that citizens would be required to serve as jurors only in the districts including their homes; butit was not intended to so limit the district courts as to make them mere local courts, incapable of taking original jurisdiction as courts of the territory, with power to issue judicial process and mandates, and enforce the same,inall places under the government of the territory. The continued exercise of the1>ower during the entire history of the territorial government, a period of more than 35 years, is sufficient proM that the district courts of Washington Territory were courts of superior aml generaljurisdiction. It was the constant practice of said COl:rts to issue
n'EVENS V. FERRY.
9
warrants, attachments, and executions, and by such process to cause the arrest of persons and seizure and sale of property in counties and districts other than that in which the court the same was held. Such proceedings were authorized by statutes, and the lawfulness thereof cannot be, doubted. The case of Ableman v. Booth, 21 How. 506, cited by counsel for plaintiff}is authority for the proposition that the process of a state court or jUdge has no authority beyond the limits of the sovereignty which confers the judicial power; a true proposition, but no more true than the converse of it, that a court ofsuperior and general juris· dictiOI1 may, if authorized by the legislature, adjudicate the rights of ties before it as to property, real or personal, situated anywhere within the boundaries of the stata, and enforce its decree by a sale and transferof the title to such property.' Under the laws of Washington Terri.. tory a mortgage only created a lien, and entitled the mortgagee to have the mortgaged premises subjected to sale under a decree ·of court for satisfaction of the debt, (Laws Wash. T. 1869, p. 130, §498j Laws Wash. T. 1873" p. 134,§ hence there could be no proceeding for a strict foreclosure. A suit for a decree of foreclosure is a proceeding in rem; as well as in' personam, and therefore cannot be properly brought else· where than in a court ·having local jurisdiction over the premises. 2 Jones,' Mortg. § 1444; Woodv. Mastick, 2 Wash. T. 69, 3 Pac. Rep.lH2. The important question ,ib·the case, therefore, is as to the jurisdiction of the district court which"tet!dered the decree under which the sale of the land' in controversy' made, and the decision of that question must be controlled by the provisions of the civil practice act of 1873. The important sections are the following: "Sec. 48. Actions for the following cRlIsesshall be in the county or district in which thesulJject of the action, or some part thereof, is situated: .(1) For the recoveryo'f; for the possession of; for the partitionof'; for a foreclosure of Ii mortgage on; or for the determination of all questions affecting the title, or for any injuries to real property." Laws 1873. p.12. "Seq. 5,61. When default is made in the performance of any condition contained in a mortgage, the mortgagee or his assigns may proceed in the district court of the district or county where the land. or some part thereof, lies, to foreclose the' equity of redemption contained in the mortgage." "Sec. 563. In rendering judgment of foreclosura the court shall order the mortgaged premises, or so much thereof as may be necessary. to be sold to Ilatisfy the mortgage and costs of the action. The payment of the debt, with interest and costs, at any time before sale, shall satisfy thej udg· ment. " "Sec. 564. When there is an express agreement for the payment of a sum of money secured, contained in the mortgage or any separate instrument, the court shall direct, in the order of the sale. that the balance due on the mort. gage, and costs which may remain unsatisfied, after the sale of the mortgaged premises, 8ba11 Le levied on any property of the mortgage debtor." :'8ec. A copy of the .order of sale and judgment shall be issued ,and certified by the clerk, under ,the seal of the court, to the sheriff, who sball thereupon proceed t.o sell the mortgaged premises, or so mUch thereof as may be necessary to satisfy the jUdgment, interest, and costs, as upon execution; and. if allY part of the judgment, interest, and costs remain unsatisfied,
10
FEDERAL .
vpl. 48.
sbe:rifhhaU,forthwith :proceed to of tiW pmperty oJ defendaqt,.,The sheriff shall inqorse upon of saJe the time when he reQillyed, it. and all subsequent u'nder the said order shall conform, except as hereinafter provided, to :iHe provisions regulating of property upon execution." Laws 187.3, pp. 149·. 1$0. ' , , ' ,
1
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These provisions,of statutellifEl in alL.ilIlPortant parti@lars the same asa-:pri(>}.' act.of was construed py the sqpreme court Wash.T. 143; holding;ip. efiect. that iu. the: Qase of the. object of the law is. to avoid a p:luWpliGity of suHs·. iljnd save .expense iu the collectiou of. debts secured .py: mortgages, on re",l. estate, and to give the creditor in Que suit the full benefit of a double remedy, by enforcing.the personal: UJ!..hilityof mortgaged propl:lrty, to ;formerly (;Qp1 41 ol}ly be apcom plish.e<;l. by. an action at and a hold, tlpoll.the authority and reasoning of that decillion, tlmto,nly a single suit could,be maintained Olle tinultc)'fo1'8close fl mQr;tgage in the anq. collect tb,e .debt aecuredthereby, even though several 3n,daeparate traqts 9f !all!;l, different cO\lutie$ and .districts in the mOlltgagejand, that the. to have the effect in.8uch a case delay the mo\,tgagee byr.equifia;1g him to. proceed in:d-eiaUbysepar,ate in each district, but gave him., the right· .toproceeq, inone. suit, in; Q. :distriot cpurt .fOlthe county in. which the.l1t.nd or a part thereof liEl&,:againstall theproporty SUbject .to the lien of his mortgage. .In. the. argument it is, admitted that /I q.istrict c()urt under tQis statute might in one suit sale ofland situated partly in two counties, if the. ;premises be in c(lm.pact form, as a single 40-acre tract, (),r any numberQf legal subdivisions adjoining each other; butnot if the Hmds in counties are sElllll,rat'e tracts. By ()f a' strip, of the right of way of for ,instapce, across the entiTe'territory,and embracing)and in 12 counties, might be subjected to sale under a decree in a. single suit brought in either of the counties; and thecol1rtauthorized torender such a decree would be withe,ut 'order a under a ofa single acre situated in an the acre other land covered by the' same mQrtgage in the county wherein ,the court was, held. ,The authorities cited do not require me:to recognize any such distinction. In the case 'of Holme9 v. Taylor, '48 Ind. 169, the mortgage covered a single tract cutinto two parts by a river which formed a boundary betweentwo coullties., It was held to be necessary, under the statutes of tb'atstate, to sell the land tWQ ,and to sell each part in the county in which it,was situated; but the ,right to. foreclose the mortgage monesuit,: and the jurisdiction of the court sitting in one county to render a decree and order 'ofsale of the land in both counties, were apd'the ()pinion doestlotgive as are'a'5on f<;Jr so holding that it was -Water an tract of lU,i1d which filled 'the space between a reason for a different in sJ,Jch a case II.S this one.. of Chadbom'1IIJv. Gil1'nan, 29 IOwa,
to
STEVENS ,l', ,FER,¥-!
11
181, was one in suit, coyering land in a single county, and it is therefore not in point in this case. In the case of Orcutt v. Hanson; (Iowa,)' 32 N. W. Rep. 482, the suit was against the executrix of the mortgagor's will; the, mortgaged premises were situated in the county in which the defendant lived, and in which the estate WitS being settled in the probate court; the debt secured by the mortgage was payable in a different county, and the suit was brought in the latter county to collect the debt and foreclose the mortgage. The only question decided in that case was one which does not arise in this. Lomax v. Smyth, 50 Iowa, 232, is another Iowa case, later than either of the two mentioned above, and is in point. The decision is to the eflect that, under a section of the Iowa Code providing t43;t suits to foreclose mortgages must he brought in the county wherein the mortgaged property, or some part thereof, is situated, a decree of foreclosure and order of sale in a suit upon several deeds, each for a separate tract. given as for a debt, where It defeasance of all the lands by It single instrument had been taken by the mortgagor, brought ina Qoumyembracing only lands affected by one of the deeds, was valid and binding as to lands in another county. The decision in Wood v. MlUtick, 2 Wash. T. 64,8 Pac. Rep. 612, does not bearon the question at issue to any greater extent than this: It holds that foreclosure suits must be brought in the county or district in which the land, or some part thereof, lies. It does not intimate that more than one suit is necessary where several tracts in different counties are covered by a single mortgage. I hold that in said foreclosure. suit the jurisdiction of the district court at Olympia was not partial. and sufficient merely to Itfford part of the relief to which the mortgage entitled the plaintiff, but it was complete for all purposes. The mortgage given by the cOluplainantwas foreclosed, and the lands in controversy were sold, by proceedings and under process especially provided by the statutes for such a case, and the sale is not void because not made subject r.edem ption , as provided in the chapter relating to sales of real estate under executions, nor by reason of non-conformity to theprovisiolls of that in other particulars on the part of the sheriff, in executing the process and making ,his return. The particular provisions of that chapter invoked are wholly inapplicable to the case. Hays v. Miller, 1 Wash. T l 145; PIlrker v.. Dae-res, 2 Wash. T. 445, 7 Pac. Rep. 893. Bythe statute, the cOJ1wlainanthada right to redeeJD, the property by paying the mortgage debt, with interest and costs, at any time prior to the sale, (Laws 1873, p. 149, § 563';) and by the order of the court the time was extended for a period of six months from the date of confirmation of the :;ale. He did not avail himself of the right of redemption given to him by law, or the grace extemled to him by the court, and, by the sale or the property and lapse of time, all his rights to and, interest in the property were extingqished,and the right of the purchaser to have a valid deed from the sheriff became absolute. Whether such sdeed has or has not been executed and delivered is It question which i!,! not material in this case, because i,t does notconcern the com..-:plainant. Heis in no position to litigaw with the defendants