Anders v. Bouska

112 P. 523, 61 Wash. 393, 1910 Wash. LEXIS 1356

• Court: Washington Supreme Court
• Decided: December 31, 1910
• Docket: No. 9034
• Status: Published

Opinions

Crow, J.

Action by Elmer P. Anders, against Joseph Bouska, to quiet title to real estate in the city of Spokane. From a decree in his favor, the defendant has appealed.

The evidence shows that Logan Snell and Clara Snell were husband and wife; that on October 31, 1906, Clara Snell acquired record title to the real estate, the presumption being that it became community property; that on November 19, 1906, Joseph Bouska commenced a personal action in the superior court of Spokane county against Logan Snell alone, to recover judgment on an account for necessaries sold to him; that on the same date he caused a writ of attachment to be issued and levied upon the real estate here involved; that on February 1, 1907, after procuring an abstract of title which did not disclose the attachment lien, Elmer P.- Anders, the respondent herein, purchased the real estate from Clara Snell for a valuable consideration, taking title thereto under and by virtue of a deed executed by her and Logan Snell, her husband; that respondent then had no notice of the attachment, or the pending action commenced by Bouska; that thereafter judgment was entered in favor of Bouska against Logan Snell, in pursuance of which an order of sale was issued to the sheriff of Spokane county, directing him to sell the attached property, and that it was sold on August 1, 1908, by the sheriff to Bouska; who now claims title. The action commenced by Bouska was against Logan Snell alone. The attachment was against his interest in the real estate. Clara Snell was not a party to the action or attachment, although appellant must have known she then held the record title. Before any judgment was obtained by Bouska, the property had been sold and conveyed to Anders, for a valuable consideration, without notice to him of the pending action or attachment.

In Clerf v. Montgomery, 15 Wash. 483, 46 Pac. 1028, 48 Pac. 733, the record title stood in the name of S. F. Montgomery, wife of J. M. Montgomery, the judgment debtor and only defendant in an attachment proceeding. Before judgment was obtained against her husband, the wife sold to one Christianson, a bona fide purchaser. We there said:

“Without specially reviewing the other assignments, we are satisfied that no error was committed by the court excepting in its finding that Christianson took the lands subject to the lien of the attachment. Christianson, we think, was a bona fide purchaser without notice of any incumbrance. The record title was in S. F. Montgomery, and the fact that the copy of the attachment writ, together with a description of the property attached, was filed in the county auditor’s office where such writ of attachment ran against the property of J. M. Montgomery, the order being to attach the interest of J. M. Montgomery only, could in nowise, it seems to us, be notice to a purchaser of the attachment' of property the record title of which was in the name of another, even though that other should be the wife of J. M. Montgomery.”

See, also, Johnson v. Irwin, 16 Wash. 652, 48 Pac. 345.

The abstract of title procured by respondent did not disclose any attachment hen which, under Rem. & Bal. Code, § 8787, was undoubtedly indexed in the name of Logan Snell only. Respondent purchased from Clara Snell, holder of the record title. Had the appellant, Bouska, knowing she held the record title, made her a party defendant to the action which he commenced on a community obligation, and also to his writ of attachment, the lien which he obtained would have been indexed in her name also, thus giving constructive notice to any person who might thereafter deal with her as holder of the record title. This appellant failed to do, and under the case above cited, we think the respondent, shown to be a purchaser for value without notice of the lien, should be protected.

The judgment is affirmed.

Dunbar, Chadwick, and Morris, JJ., concur.