title:
Mariah J Galliher, Appellant, vs H P Cadwell, Appellee, Reply brief of Appellant
creator:
Mariah J Galliher
contributor:
Nathan S. Porter
contributor:
John P. Judson
contributor:
Joseph W. Robinson
date:
1888-01-02
publisher:
Supreme Court of the Territory of Washington
type:
Civil
subject:
Real Property
language:
eng
format:
application/pdf
description:
Prior History: APPEAL from the District Court holding terms at Tacoma. Second District.This is a suit in equity brought by the appellee H. P. Cadwell to quiet the title to the premises described in the complaint.The complaint alleges ownership and possession of the land in controversy and the adverse claim of title by the appellant thereto, alleged to be without right, and prayed for a decree to quiet the title and for an injunction against appellant restraining her perpetually from asserting any claim whatever to said land adverse to appellee, and for general relief. There were other defendants joined with the appellant alleged as claiming adversely, and as against them the complaint was taken as confessed, and a decree was rendered against them. The appellant Maria J. Galliher answered by a denial of all the material allegations in the complaint, and interposed an equitable counter-claim, whereby she sought to charge the appellee, as trustee of the lands described in the complaint, and to compel a conveyance of the legal title thereof to plaintiff. She alleged, in substance, her marriage and coverture with one Silas Galliher, who, on August 10, 1872, filed as an original entryman in the United States land office, at Olympia, Washington Territory, his application to enter under the homestead law of the United States the premises described in the complaint, the same being then an unoccupied, surveyed, and platted portion of the public lands of the United States, subject to homestead entry.Public Lands – Homestead – Improvements – Good Faith – A person availing himself of the benefits of the homestead law must show good faith, and a bona fide intention to establish a residence, and to make improvements upon the land, and to reside upon the land as his home, and cultivate the soil. A mere colorable attempt to do so, not followed by continuous residence and cultivation, for the purpose of speculation or to strip the land of its timber, is not a compliance with the homestead law, and makes the entry void ab initio. Notice – Record – Evidence – The record in the auditor’s office of the proper county of a claim and an application to enter land under the homestead law, not being entitled to record, does not impart constructive notice of anything therein stated. Neither do abandoned improvements of little value, overgrown with timber upon land, tend to show actual notice of the occupancy of the land as a homestead.
description:
Pleadings – Defective in – Waiver of – Amendment – Where parties to an action, without objection, take evidence upon matters which ought to be pleaded as an affirmative defense, and the case is submitted by the parties to the court for decision upon such evidence, and without objections to the form of the pleadings, the court ought to disregard this defect in the pleadings or order the same to be amended to conform to the evidence.Timber Act of 1878 – Res Adjudicata – Default – Estoppel – An applicant to enter land under the timber act of congress is required to publish notice of his intended entry, and such publication, when duly made, is notice to the whole world; and an adjudication of the land office, after such notice, that the land to be entered is unoccupied public land and subject to such timber entry, is binding upon all private parties claiming adversely and failing to contest, and operates as a judgment of default against them, and estops them from relitigating that question. Same – Estoppel – Tender – Payment – Equity – When a party has been allowed to prefect his entry under the timber act, and having had no notice of any adverse claim to the same land, and having paid for the same and having made valuable improvements thereon, he cannot be charged in equity as a trustee holding the legal title for such adverse claimant, until the latter tenders payment of the purchase price and the costs of the improvements made by the timber claimant.Semble – That if such adverse claimant has, without remonstrance, permitted sales and improvements to be made by the timber claimant, who has had no notice of such adverse claim, an estoppel would arise against the assertion of the rights of the former.
relation:
Galliher v. Cadwell, 3 Wash. Terr. 501 (1888)
relation:
18 P. 68
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf