Her Wages Bought the House at Fourth and Plum. The Sheriff’s Deed Was Canceled.

Judge Robinson rendered his decision today involving the title of the Burkett property, at the corner of Plum and Fourth streets, which was bought by G. Rosenthal at sheriff’s sale. The opinion is as follows:

In the Superior Court of Thurston County, State of Washington: Elizabeth Burkett, H. L. Burkett, plaintiffs, vs. G. Rosenthal and wife, defendants.

In this case the complaint alleges that in November, 1866, and in March, 1867, Elizabeth Burkett purchased in her own name certain real property situate in the city of Olympia, and that she has been ever since said purchase and is now in possession of said property, maintaining thereon her home. That she purchased this property with her own separate and sole earnings and savings and as her sole and separate property. That in July, 1878, she conveyed said property (Calvin Burkett, her husband, joining in the deed) to H. L. Burkett, her son, Bell Burkett, a daughter, now Mrs. E. W. Pettigrove, and to May Burkett, a daughter, since Mrs. D. L. Ward, the other plaintiffs in the case. That said property was deeded to said children, who were then minors, by a general warranty deed, but that the plaintiff, Elizabeth Burkett, reserving unto herself, “during the term of her natural life, the right to use and occupy” the same, and “also all the rents and profits of the same.”

That in March, 1891, the defendant Rosenthal filed and recorded a sheriff’s deed under execution, in the auditor’s office of Thurston County, purporting to convey this property to said Rosenthal, based upon the sale of the property under an execution issued from the superior court of Pierce County against the property of Calvin Burkett. The complaint negatives the title of Calvin Burkett, alleging that he never had any interest in this property; that said deed is a cloud upon plaintiff’s title; that the filing and recording of the same, and that the claim of the said Rosenthal thereunder of an interest in and to said property adverse to these plaintiffs, has injured them in the enjoyment and sale of said property; that the same has created and is a cloud upon their title.

The defendants, in their answer, after putting in issue the title to this property, set up an affirmative defense in substance that the property is and was the community property of Elizabeth Burkett and Calvin Burkett, her husband. That in July, 1890, William Billings, sheriff of Thurston County, by virtue of an execution from the superior court of Pierce County, upon a judgment therein in favor of Swan & Smith, and against Calvin Burkett, which had been assigned to the defendant Rosenthal, sold said property at public auction, and the same was bid in by said Rosenthal, and that after confirmation of sale, and after the time prescribed by law, the said William Billings, as sheriff, executed to the defendant Rosenthal the deed alleged to be a cloud upon the plaintiff’s title. That the debt for which said judgment was secured in favor of Swan & Smith was the community debt of the said Calvin Burkett and Elizabeth Burkett, his wife. The plaintiffs, in their reply, put in issue this affirmative defense.

The evidence shows that in 1866 Calvin Burkett gave to his wife, Elizabeth Burkett, the sum of $700 in cash, with the understanding that she was to take the children and go to California, but instead of leaving Washington, Mrs. Burkett, immediately, with said $700, purchased the furniture and took charge of the Pacific Hotel in this city, and conducted and managed the same in her own name and as her own separate business for a period of several months. That during a portion of this period the husband lived in the hotel. That he had nothing to do with the business of the hotel, nor did he exercise any act of ownership thereover. From the earnings of this business Mrs. Burkett purchased this property in dispute, in the years of 1866 and 1867, and soon thereafter went into possession thereof with her then minor children, and has resided thereon for twenty-four years. During all these years the husband has maintained and resided at his home in Pierce County, thus living separate and apart from his wife, only occasionally visiting the children at their mother’s home, and never having resided with them since giving her the $700 in 1866.

In July, 1878, Elizabeth Burkett (Calvin Burkett joining therein) “in consideration of One Dollar ($1.00) and love and good will,” deeded the property in dispute to her minor children, Herbert L. Burkett, Bell Burkett, since Mrs. Pettigrove, and May Burkett, since Mrs. Ward, each a party plaintiff. This deed reserves to Mrs. Burkett “during the term of natural life, the right to use and occupy, and to possess the rents and profits” of the property. In August, 1878, the firm of Swan & Smith secured a personal judgment against Calvin Burkett in the District Court holding terms at Tacoma, for the sum of $100, which was thereafter assigned to the defendant G. Rosenthal, and upon his motion revived in June, 1889, principal and interest amounting to $1,238.80. That on August 28th, 1890, upon execution upon such revived judgment, the sheriff of Thurston County sold to G. Rosenthal, the defendant, all the estate, right, title and interest of the said Calvin and Elizabeth Burkett, which sale was thereafter confirmed, and the sheriff’s deed placed of record at Thurston County.

Counsel for Rosenthal insists that under these facts defendant is entitled to judgment; that, notwithstanding the fact that this property was purchased by Mrs. Burkett’s personal earnings and savings, the fact of there having been no separation of the husband and wife, and the further fact that this $700 given to the wife by the husband furnished her the only means by which she began business in her own name, the law itself classifies the property as community property, and therefore such as can be subjected in payment of this judgment. But this we are not willing to concede. This property was purchased by the sole and separate earnings of Mrs. Burkett in connection with the $700; it was the result of her own labor. The $700 was a gift from the husband to the wife, in which after the delivery thereof, Calvin Burkett had no interest, and if he had no interest in the $700 it certainly cannot be said that he could have any interest in the earnings of that money. Under the statutes in force at that time, and which remained in force up to the time that the community property law was enacted in 1869, all the real and personal estate belonging to any married woman at the time of her marriage, or which she may have acquired subsequent thereto, or to which she became entitled in her own right, together with all her personal earnings, and all the issues, rents and profits of such real estate were exempt from execution upon any liability or judgment against the husband, and the community property act of 1869 could not be held to be retroactive; that is, the community property act did not create community property out of the separate property of either member of the community, and I therefore hold that on July 26th, 1878, this property was the separate property of Mrs. Burkett, and that since, by reason of the deed executed by her to her minor children on that date, she parted with the title to said property, and has ever since and now only a life estate therein. That the said Calvin Burkett has no right, title or interest in said property. That H. L. Burkett, Mrs. E. W. Pettigrove and Mrs. D. L. Ward, the other plaintiffs in this cause, are the owners in fee simple of said property, except as to the life estate of their mother, the other plaintiff. But, even though it were the community property of Elizabeth Burkett and Calvin Burkett, the position of the defendant cannot be maintained for the reason that there is an entire failure of proof to support the allegation that the debt for which the judgment was secured against Calvin Burkett, and in favor of Swan & Smith, was for a community debt of the husband and wife; and failing to show that such debt was a community debt the community real estate could be lawfully subjected in payment thereof.

Again, conceding that this judgment was for a community debt, Mr. and Mrs. Burkett parted title to the property in July, 1878, prior to the date when the judgment was secured. Mr. Burkett retaining no interest whatever, if he ever had any, and Mrs. Burkett reserving only a life estate therein, therefore, the only interest which could be levied upon was her right of possession, together with the rents and profits of said property during her lifetime.

A judgment will be entered, decreeing the other plaintiffs except Mrs. Burkett to be the owners in fee simple of said property, except as to the life estate of their mother. The title thereto will be quieted, and the cloud upon the title created by said sheriff’s deed will be removed, and the deed cancelled.

Dated October 23rd, 1891. E. B. Simmons, for plaintiffs. J. C. Haines, for defendants.