Warburton v. White
This case involves the title to a lot of land in the city of Tacoma, in the state of Washington. The pertinent facts presenting the controversy are as follows:

Prior to 1877, Eli G. Bacon and Sophia D. Bacon were husband and wife and citizens and residents of the then territory of Washington. In the year named, Bacon, the husband, with community funds, that is, with money acquired after his marriage with his wife, Sophia D. Bacon, purchased the real estate in question and took title thereto in his own name, the property being used as the residence of the husband and wife.

At the time of the purchase the laws of the territory of Washington provided, with reference to community or 'common' property, as it was termed in the earlier statute, as follows: By an act approved November 14, 1873 (Laws of 1873, Wash. Terr. p. 450), the property acquired after marriage by either husband or wife, except such as might be acquired by gift, bequest, devise, or descent, was declared to be 'common property,' and it was further provided that the husband should have the entire management and control of such property, 'with the like absolute power of disposition as of his own separate estate.' There was also in force an act approved November 12, 1875 (Laws of 1875, Wash. Terr. p. 53), providing that upon the death of the husband or wife the whole of the 'community' property, subject to the community debts, should go to the survivor.

Subsequently to the purchase of the real estate in question, by an act approved November 14, 1879 (Laws of 1879, Wash. Terr. p. 77), it was, however, provided that one half of the community property should be suject to the testamentary disposition of the husband or wife, subject respectively to the community debts, and in default of such testamentary disposition that the share of the deceased husband or wife should descend to his or her issue, and if there was no such issue, should pass to the survivor. On July 28, 1880, Mrs. Bacon died intestate, leaving surviving her the following children, her only heirs at law, viz.: Matilda B. White and Amelia McDonald, two daughters by a first marriage, and Ellen T. Nelson, a daughter by the marriage with Mr. Bacon.

In August, 1892, twelve years after the death of his wife, Bacon became indebted to Stanton Warburton, plaintiff in error, and the latter recovered a judgment upon such indebtedness in April, 1895. Upon an execution issued on the judgment, a judicial sale was made on March 2, 1896, to Warburton of the interest of Mr. Bacon in the property in controversy; and-after confirmation by the court and the expiration of the time allowed by law for redemption-a deed was duly made to Warburton by the sheriff of Pierce county, Washington, on May 4, 1897. Twenty days thereafter Warburton instituted an action in the superior court of said Pierce county, against the aforementioned children and heirs of Mrs. Bacon, to quiet his title to said lot against alleged adverse claims of said heirs. A joint answer to the complaint was filed on behalf of all the defendants, setting up the facts as to the acquisition of the property by Bacon, the death of Mrs. Bacon intestate while the title to the community property was still in Bacon, and asserting that the defendants had an undivided interest therein as heirs of their mother.

Thereafter, on October, 12, 1897, Mrs. Nelson conveyed to the plaintiff whatever interest she had in the property. An amended answer was filed on behalf of the two remaining defendants, reiterating the main allegations of the former answer; setting up that the defendant, Amelia McDonald, for a valuable consideration, had sold and conveyed to her codefendant and sister, Mrs. White, before the commencement of the action, all her interest in said real estate; and it was prayed that the latter might be adjudged the absolute and unqualified owner in fee simple of an undivided one third of the property. A reply was filed to this amended answer, admitting that the lot in question was purchased with community funds, 'and that the said property became then and there the community property' of Mr. and Mrs. Bacon, and that Bacon still held title thereto on the decease of his wife.

The cause was heard by the court without a jury upon an agreed statement which embodied the facts above recited, and the additional fact that intermediate the purchase by plaintiff at the sheriff's sale and the purchase by him from Mrs. Nelson, Bacon had died intestate. Each of the prties submitted conclusions of law to be deduced by the court from the facts stated. To a proposition submitted for the defendant, upholding her claim to an undivided one-third interest in the property, the plaintiff duly excepted as follows:

'II. Plaintiff excepts to the proposed conclusion of law numbered II. on the ground that it is contrary to the findings of fact and the law; on the further ground that, under the laws in force at the time the property was purchased and the deed taken, E. G. Bacon was the owner of the property, and was entitled to the succession to all the property in case of the prior death of Mrs. Bacon, and that at the death of Mrs. Bacon, in 1880, Mr. Bacon was the owner in fee simple of all said property; that to give the law of 1879, entitled 'An Act Regulating and Defining the Property Rights of Husband and Wife,' approved November 14, 1879, the construction, effect, and force given by the court, to wit, that it took away from Mr. Bacon the right of succession to the whole of the property and the right to dispose of it, would be to give it a retroactive force, contrary to § 31 of said act, and to give it such a retroactive force and take away the right of survivorship in said property and take away the right to dispose of it would be contrary to article 1, § 10, of the Constitution of the United States, in that it would impair the obligation of the deed or contract by which Mr. Bacon acquired said property, and would deprive said Bacon, his successors and assigns, of the right of survivorship in the property in controversy, which was a vested right under the contract or deed and the laws in force in the territory at the time the property was acquired. Plaintiff further excepts to said conclusion on the ground that if said law is given said effect and force above mentioned it would be depriving Mr. Bacon, his successors and assigns, of property without due process of law, and contrary to and in contravention of amendments of the Constitution of the United States, and plaintiff claims the protection of both said provisions of the Constitution of the United States.'

The court decided as matter of law that the defendant Mrs. White was, as claimed by her, the owner of an undivded one-third interest in the property, and was entitled to a decree quieting her title thereto. From the decree thereupon entered, so far as it sustained the claim of said defendant, the plaintiff appealed to the supreme court of the state of Washington. That court affirmed the judgment and denied a petition for rehearing. 18 Wash. 511.  A writ of error having been allowed, the cause is now here for review.

Messrs. Stanton Warburton, P. P. and Frederic D. McKenney for plaintiff in error.

Messrs. Charles S. Fogg and James Hamilton Lewis for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: 

Notes
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