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Statement of the Case.

recorded. On this poiot the trial court found that the existence and valid. ity of the power of attorney was established. It entered a decree that the plaintiff was entitled to the possession of the land, that the defendant was not the owner of it, that the clond be removed, and that the power of attorncy be establishice. On appeal to the Supreme Court of the State tliis decree was affirmed. The case being brought here by writ of error the Chief Justice of the Supreme Court of the State certificd that the question had been duly raised in the trial court whictlicr thc said power and the deed made under it, which, by the law at the time of its making were absolutely void, were made valid by the territorial act of February 2, 1888, and whether, if so made valid, it was not in violation of the Fourtecnth Amendment to the Constitution. Held, that, as it was settled in the State that actual, uninterrupted and notorious possession, ander claim of right, was sufficient without color of title, and that a void deed, accompanied with actual occupancy, was suficient to sct the statute of limitations in motion, the judgment could be sustained on the first point, which raised no Federal question, and that consequently this

court was without jurisdiction. If the record discloses that a question has been raised and decided adversely

to a party claiming the benefit of a provision of the Constitution of the United States, and another question uot Federal has also been raised and decided against such party, and the decision of the latter question is sufficient notwithstanding the Federal question to sustain the decision, this

court will not review the judgment. If it appears that the court did in fact base its judgment on such indepen

dent ground, or, where it does not appear on which of the two grounds the judgment was based, if the independent ground on which it might have been based was a good and valid one, sufficient in itself to sustain

the judgment, this court will not assume jurisdiction. This result cannot be in any respect controlled by the certificate of the pre

siding judge, for the office of the certificate, as it respects the Federal question, is to make more certain and specific what is too general and in

deinite in the record, but it is incompetent to originate the question. If the conflict of a state law with the Coustitution and the decision by the

state court in favor of its validity are relied on, this must appear on the face of the record before the decision can be reēxamined in this court, and this is cqnally true wbere the denial of a title, right, privilege or immanity upder the Constitution and laws of the United States, or the validity of an authority exercised under the United States, is urged as

the ground of jurisdiction. No rule is more Armly established than that this court will follow the con

struction given by the Supreme Court of a State to a statute of limitations of a State, and there is no reason for disregarding it in this instance.

This was a complaint filed by the Bellingham Bay Land Company against Carmi Dibble in the Superior Court of

Statement of the Case.

Whatcom County, Washington, on June 7, 1891, seeking a decree quieting plaintiff's title to certain lands therein described, and establishing the existence and validity of a certain power of attorney alleged to have been lost without having been recorded. Defendant disclaimed as to the west half of the property in question, and, after demurrer overruled to an amended complaint, answered by way of denial and assertion of defendant's claim set out in the complaint, and also by way of cross-complaint. A trial was had on issues joined and the Superior Court filed findings of fact and conclusions of law.

The court found that plaintiff was a corporation duly organized and existing under the laws of the State of Washington, with full powers to purchase, own and sell real estate; that on or prior to March 28, 1862, Thomas Jones and Betsy Jones, bis wife, were the owners of a certain donation land claim situated in the county of Whatcom and Territory of Washington, as particularly described; that these lands were donated to Thomas Jones and his wife, under the donation laws of the United States, and that by virtue of the division which was made of them by the surveyor general, and by the certificate and patent, the west half of the lands was donated to Thomas Jones and the east half to Betsy Jones, his wife. The court further found that on March 28, 1862, for a valuable consideration paid therefor, Thomas Jones for himself and as attorney in fact for his wife, executed good and sufficient deeds of conveyance for all the tract of land to Edward Eldridge, and that since that date Eldridge had duly conveyed the premises to plaintiff, a small parcel excepted; that prior to the execution of the deed by Jones for himself and his wife, Betsy Jones had daly executed and delivered her power of attorney to Thomas, authorizing him to sell and convey the lands; that the power of attorney was executed under the seal of said Betsy, and was duly acknowledged and witnessed and properly certified, but that the same was not placed on the records of the county, but became and still remained lost, and at the date of the execution of the deed had not been revoked. The court then described the parcel conveyed by Eldridge to other parties than plaintiff.

VOL. CLX

a

Statement of the Case.

The court further found that “on the said 28th day of March, 1862, the said Eldridge entered into possession of all of the said donation claim of Thomas Jones and Betsy Jones, and that from that date to the present time the said Edward Eldridge and his grantees, including the plaintiff in this case, have been continuously and now are in the actual, open, notorious, and adverse possession of all of the said property, under claim and color of title, excepting only the small parcels hereinbefore referred to as having been conveyed to other persons by the said Edward Eldridge; "that neither the defendant nor his grantors, ancestors or predecessors had been seized or possessed of the said premises or any part or parcel thereof at any time since the said 28th day of March, 1862, and that the defendant is not now in possession of the said land ;” that defendant claimed to be the owner of the premises, and to have procured deeds for the land from persons claiming to be the heirs of Betsy Jones, and had caused these deeds to be recorded in Whatcom County, and had created a cloud upon plaintiff's title; that there was not sufficient eridence to establish the fact that Betsy Jones died intestate, or that the persons under whom defendant claimed, Lovatt and others, were the heirs at law of Betsy Jones; that at the tiine when defendant claimed to have purchased the property from these alleged heirs he had full notice and knowledge of the conveyance previously made by Thomas Jones for himself and his wife, and that he had notice of the existence of the power of attorney under which Jones conveyed as attorney in fact for his wife, and had notice that plaintiff was in possession of the premises, claiming to be the owner under the Jones' deed; and “that it and its immediate grantors had been in the possession of the said premises for more than ten years last past.”

The Superior Court found as conclusions of law that plaintiff was entitled to the relief prayed, (including, among other things, the establishment of “the existence and validity of the said power of attorney,") and entered a decree that plaintiff was the owner and in possession and entitled to the possession of the land in question excepting the enumerated

Opinion of the Court.

parcel ; tbat defendant was not the owner of the premises or any part or parcel thereof; and that the cloud created upon the title of the property by the deeds to defendant from Lovatt and others be removed, and plaintiff's title be quieted against all claims of defendant; and that the said power of attorney from the said Betsy Jones to Thomas Jones, her husband, be and the same is hereby established ;” and for costs.

The cause was then taken on appeal to the Supreme Court of the State and the decree below affirmed. 4 Wash. 764. Of the four judges of the Supreme Court who participated in the decision, all concurred in the judgment, and three, including the Chief Justice, in the opinion. Thereafter the Chief Justice signed a certificate and this writ of error was brought.

Mr. Alfred L. Black, (with whom was Mr. E. B. Leaming on the brief,) for plaintiff in error.

Mr. J. A. Kerr, (with whom was Mr. W. Lair Hill on the brief,) for defendant in error.

MR. CHIEF JUSTICE FULLEB, after stating the case, delivered the opinion of the court.

By section two of article XXVII of the constitution of the State, all laws in force in the Territory of Washington not repugnant to that constitution were continued in force until they expired by their own limitation or were altered or repealed by the legislature.

By section five of the territorial act of February 2, 1988, brought forward as section 1447 of the General Statutes, (1 Hill's Statutes and Codes, 506,) it was provided that all powers of attorney theretofore made and executed by any married woman joined with her husband and duly acknowledged and certified, and all powers of attorney theretofore made or executed by husband or wife to the other, authorizing the sale or other disposition of real estate duly acknowl.

Opinion of the Court.

ged, and all conveyances theretofore and thereafter executed under and by virtue of such powers of attorney and acknowledged and certified as provided, should be valid and binding, but no rights vested in third persons should be af. fected by anything in the section coutained.

Plaintiff in error contends that the validity of that section was drawn in question as repugnant to the Fourteenth Article of Amendment to the Constitution, and its validity sustained in that the Supreme Court of the State held that the power of attorney and deed executed under it were thereby validated.

The certificate of the Chief Justice of that court was to the effect that in the trial by the court below and on the hearing on appeal, “the following question was duly and regularly raised, to wit: Whether the power of attorney alleged to exist and to have been made by Betsy Jones to her husband, Thomas Jones, prior to the 28th day of March, A.D. 1862, and a deed executed under it to Edward Eldridge on the 28th day of March, 1862, which said power of attorney and deed, on the respective dates of the execution thereof, were abso lutely void, were made valid and effective by the retrospective portion of section 1447 of volume one of Hill's Code of this State ;” and that the section thus applied was in violation of the Fourteenth Amendment; and further that the Supreme Court" did not express any written opinion on the question so raised as aforesaid, except such as is necessarily involved by the decree of this court in the above entitled action, dated on the seventeenth day of September, A.D. 1892, and affirming the whole of the decree of the Superior Court of Whatcom County, State of Wasbington, in the above entitled action, entered and filed in the office of the clerk of the said Superior Court on the 20th day of February, A.D. 1892; and such opinion as is expressed by the statement of this court in its written opinion in the above entitled action, that the color of title necessary to support a claim by adverse possession in l'espondent, the Bellingham Bay Land Company, rests and depends solely upon a warranty deed from the owner, Betsy Jones, executed by her husband, Thomas Jones, by virtue of

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