The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-28
IMPORTANT LAND CASE
sherins Deed to Realty Held to Be
Valid.

$4,000 Judge Haufords opinion was as fol-
lows:
ms Is suit to settle a controversy as 10 the
tIlle 10 certain lands situated near Anscortes
IN TINS state arising out OF the following facts.
In the year ls73, the complainant being then
the owner OF the lands, as security for a loan of
SI,uooi save promlssory note and a mortgage
covering said lands which was then within the
county OF Whatcom, and are now in the county
OF Skagit- Said mortgage also included real es-
late situated In Thurston county. As the courts
OF the territory were organized at the times
herein referred to. Thurston county was the sec
ond judicial district and terms Of the territorial
district court were held at Olympia for a sub
district embracing Tnurston, Lewis, Chehalis
ana Mason counties. Whatcom county was in
the third Judicial district, and terms OF the dis
trict court were held at Port Townsend for a
sub-dstrict embracing Whaicor and other
counties. In October 1874, a suit was com
menced by the owner and holder OF the note and
mortgage against the complainant in the
district court at Olympia to recover a tudo-
Inent upon the note and for a decree OF fore
closure ana order OF sale of all the lots and
tracts OF land included in said mortgage The
complainant, Stevens, voluntarily appeared and
submitted 10 the jurisdiction Of the court in said
cause ana Judgment and decree prayed for
was rendered against him December IL, 1874 In
pursuance OF said decree the land in contro-
versy was sold by the sheriff of Whatcom county
In July, 1875, and the sale confirmed by an
order OF the district court at Olym pia, December
3, 1873, by which the sheriff of Whatcorn county
was directed to execute deed to the purchaser
Al the expiration OF SIX months from the date
period redeemed. There has been no redemp-
ton made or attempted, and the sherih's deed
was made and delivered as directed The de-
PENDANTS claim 10 own the land ana derive their
title from the judicial sale under said fore
closure proceedings.
In behalf of the complainant it is alleged thet
the district court OF Olympia had no inrisdic-
ton to order or confirm a sale of land in What
com county; that the sale was not made ub-
leet to redemption, and in other respects the
proceedings were not in conformity to the re-
quiremeuts of the statutes of the territory gov
ern1ng execution sales of real estate; that for
these reasons the sale was and Is void and fur
Their that there is no proof of O valid sheriff's
deed having been given. Other points raised
by facts alleged in the peadings of the defend
ants have been discussed, but require no fur
Their mention in deciding the case according to
my view of it.
The courts of Washington territory were
created by the act of Congress of March
2, 1853. entitled SAD act to establish
the territorial government of Washington" no
U. s. statutes page III Section nine of the act
contains the following among other provisions:
"Fhe judicial power OF said territory shall be
vested in supreme court, district courts, pro-
bate courts, and justices of the peace.
The said territory shall be divided into three
judicial districts and a district court shall be
held in each of said districts by one of the
justices OF the supreme court, at such time and
places as may be prescribed by law: the
jurisdiction OF the several courts herein pro-
yided for, both appellate and original and that
OF the probate courts and justices of the.peace
shall be limited by law; and the said
supreme and district courts respectively shall
possess ehancery as well as common law iuris-
diction."
BY the sixth section OF the act general Iegis-
latiye power is given to the territorial legisla-
ture, and 1t Is not questioned but what its
power To define and limit the jurisdiction of the
district courts as to subject matter, parties and
territory, was ample. The objects of the organic
act in providing for q division OF the territory
into districts was to serve public convenience,
and divide the labors of the judges. 1t was con-
templated that the business of the people resid-
ing in each district would be transacted in the
court for that district; that crimes would be
cognizable in the court for the district wherin
committed, and that citizens would be re-
quired to serve AS jurors only in the dis
tricts including their homes. But it was
not intended to SO limit the district
courts az to make them mere local courts, in
capable OF taking original jurisdiction courts
OF the territory, with power 10 issue judicial
process and mandates. and enforce the same in
all places under the government of the territory
The continued exercise OF the power during the
entire history OF the territorial government,
period of more than thirty-nve years, is sufl-
eient proof that the district courts of Washing
ton territory were courts of superior and gem
eral jurisdiction. Ii was the constant practice
OF said courts to issue 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 issuing the same
was held. Such proceedings were author
lied by statutes, and the lawfuiness thereof
cannot be doubted The case of Alderman vs.
Booth, Il Howard, 500. cited by counsel for
plaintiff, is authority for the proposition that
OI Z,
authority beyond the limits of the sovereignty
which confers the judicial power. A true prop
osition harmOnzng well with the converse OF
Ii, that court of superior and general jurisdie
ton may, If authorized by the legislature, adju-
cate the rights of parties before il, as TO property
real or personal, situated anywhere within the
boundaries OF the state, and enforce its decree
by sale and transfer of the title to such
property.
mortgage only created lien and entitled the
mortgage TO have the mortgaged premises sub
Jected to sale under decree OF court tor salts
faction of the debt Laws OF Washington Terri
tory 1863, y l3G, Section 49S: 1873 l3l. section
496 Hence there could be no proceeding for
strict foreclosure. A suit for decree OF fore
closure is proceeding in rem, as well as IN par
s0Ran, aad therefore can not be properly brought
elsewhere than in a court having local iurisdic
tion over the premises. Il Jones on Mort
CAGES section Liza Wood vs.. Mastic, > Wash
ingtOn Territory, 69.l The important question in
the therefore is as to the jurisdiction of the
district court which rendered the decree under
which the sale OF the land in controversy was
made, and the decision of that question must be
controlled by the provisions OF the civil prac-
tice act OF 1873 he important sections are the
following: ''SectiCn Is Actions for the follow
ing causes shall be commenced in the county
or district in which the subject OF the action, or
some part thereof, is situated:
81. For the recovery of, for the possession of,
for the partici patton OF, for foreclosure OF
mortgage on, or for the determination of all
questions affecting the title or for any injuries
10 real property" Laws 1873, p y
"Sec SOL When default is made in the per-
Torrance of any condition contained in mort
gage the mortgagee or his assigns may proceed
in the district court OF the district or county
where the land or some part lies e foreclose the
equity of redemption contained in the mort
gage."
ure the court shall order the mortgaged prom
Uses, or such thereof as may be necessary, 10 be
sold 10 satisfy the mortgage and costs az the &C
tion. The payment o! the mortgage debt, with
interest ami costs al any time before sale, shall
satisfy the judgment
"SeC 564. When there is express agree
ment for the payment OF sum o. money Sc
cured. contained in the mortgage or any separ-
ate instrument, the court shall direct In the
order Of the sale that the balance due the
mortgage, and costs which may remain un>atis-
ned after the sale Of the mortgaged premises,
shall be levied on any property OF the mortgage
debtor"
..Sec 565 A copy OF the order of sale ard
Judgment shall be issued and certified by the
clerk, under the seal o. the court, - the shelu,
who shall thereupOn proceed 10 sell the NOR
gagged premises, or So much tuerot as may ue
necessary to satisfy the Judgment, Interests anu
costs. a. upon execution; aud II any part OF the
Judgment, interest ana costs remain uuSatlhed
the sheriff shall forthwith proceed 10 .eVy the
residue Of the property OF the defendant Inc
sheriff shall iudOrse upon the order OF sale the
time " hen he received II, and all subStqu ent
proceedings under the said order snail conform
except "a hereinafter provided, 10 the provisions
regulating sales Of property upon execution.
laws Of 1873. pages l4llS1l
These provisions of the statute are IN all I'm
portaut particulars the same prior act OF the
territory which was construed 10y the supreme
court, in the case Of HAYES VS.. Miller W ash
ingtou Territory. l4& Holding IN effect that
tie object of the law is 10 avOll a multiplicity
OF suits ami save expenses III the Coucct!nn OF
debts secured bv mortgages on real estate, and
10 give the creditors, III one sult, the ran peue-
lit Of double remedy By enforcing the personal
liability OF the doctor and subleCung the mort,
gagged property 70 sac, which formerly could
only be acvnrtplisheI bV 81 action ~ law and A