Bigelow v. Brewer

70 P. 129, 29 Wash. 670, 1902 Wash. LEXIS 628

• Court: Washington Supreme Court
• Decided: September 15, 1902
• Docket: No. 4163
• Status: Published

Opinion

Tlie opinion of the court, was delivered by

Hadley, J.

This action was originally brought by respondent against thei appellant Brewer to cancel a certain deed theretofore, made to said Brewer by one Ina H. Houghton, purporting to convoy real estate in the city of Seattle, to remove an alleged, cloud created by said deed, and to quiet respondent’s title to said land. The complaint alleges that on and prior to the 10th day of October, 1895, said Ina IT. Houghton was the owner of said real estate, the) same being described as. lots 3 to 6, inclusive, in block 2 of Grown addition to Seattle, and that, on said date for a sufficient, consideration she conveyed same to 'respondent, but that respondent did not have the deed placed of record; that thereafter, on or about the 21st day of February, 1901, said Brewer, knowing that the said lots had been conveyed to respondent as aforesaid, and knowing that said deed had not been recorded, did, by false' and fraudulent representations, and with the • intent to defraud respondent, procure from said Lia H. Houghton a writing which purported to bo a warranty deed conveying said lots to- said Brewer, the sole consideration therefor being the, sum of $30, paid to Hiss Houghton; that the reasonable market value of said lots was $900, and said Brewer knew their value; that said deed was procured by said Brewer -with full knowledge that Miss Houghton had no title thereto or interest therein, and for the purpose of attempting to cast a cloud upon respondent’s title. A Us fmdens notice was filed at. the time the action was commenced. After the commencement of the action, by a stipulation and order of tire court thereon, the appellants Stanchfield were made parties derfendant, on the ground that they claimed some interest in the property, which they desired to have adjudicated in the action. Thereupon the appellants Stanchfield, being-husband and wife, filed their separate answer to the complaint, and the appellant Brewer did likewise. The answer of appellant Brewer admits the execution of the said deed to himself, and avers the. consideration to have been tlie payment of $30 cash and an agreement on his part to pay certain taxes, which were liens npon the land. Other material allegations are denied, and the value of ihe property is alleged to have been not greater than $600, It is further affirmatively alleged that at and for some time prior to the date of the execution of said deed the public records of King county show said Ina H. Houghton to be the owner in fee simple of said lots.; that said deed was accepted in good faith and was at once recorded without any knowledge on the part of said appellant that Miss Houghton had ever conveyed the property, or that any other person claimed any interest therein. It is further, alleged that before the commencement of this action, and before said appellant had any knowledge that respondent claimed any interest in said lots, said appellant, for a sufficient consideration, and by sufficient deed, conveyed the lots to the appellant Henrietta IV. Stanchfield. The answer of the appellants Stanchfield contains substantially ihe same denials and averments which are contained in the answer of appellant Brewer, with the additional allegation that at the time of the execution of the deed by Brewer to Ill’s. Stanchfield these appellants had no knowledge 1h at said Ina H. Houghton had theretofore conveyed said property to any person other than said Brewer, and that they accepted said deed in good faith, without notice of respondent’s claim to' the lots. Bespondeait’s reply to the answer of appellant Brewer denies in the main the affirmative allegations of said answer, and further avers that since the filing of the complaint respondent has been informed, and believes it to he true-, and alleges it to he a fact, that appellant, Brewer took the conveyance of the property described in the complaint at the request of one Alexander H. Hunn, with the understanding and agreement that whatever title or interest he acquired in the property he would convey to said Nunn, and that said Nunn is the real party in interest in the defense of this action. The reply to- the answer of the Stanchfields contains substantially the same denials and averments as the other reply, with "lie additional averment that the deed from Brewer to the Stanchfields was accepted by them at the request of said Nunn with the understanding and agreement that they would convey to him whatever' title or interest they might acquire by virtue of said deed, and that said Nunn is the real party in interest. Under the issues substantially as stated above the cause was tried by the court, resulting in a decree in favor of resppndent to- the effpct that appellant Brewer and his grantee-, appellant Henrietta Stanchfield, shall take nothing by the instruments heretofore mentioned purporting to- be conveyances of said lots-; that the deeds- are void, of no- effect, and are canceled and set aside; that the title toi said lots is decreed to be- in respondent, free from any cloud thereon by reason of said deeds. Bronx said decree this appeal was taken.

It is assigned as error that the court refused to- graub appellants’ motion to dismiss the action on the ground that the complaint does not state facts sufficient to' constitute a cause of action, and that it does not appear from the pleadings- and the evidence that the court has jurisdiction of the subject matter. It is urged under1 this assignment that the complaint does not state, and the evidence does- not show, that the respondent a-t the time of the commencement of this action was in possession by himself or tenant, o-r that the! premises were vacant and unoccupied. The motion was not made until after the trial of the case, and was directed to; the evidence as well as to the complaint. If the evidence shows the existence of conditions necessary to enable respondent to maintain the action, then we think the motion should not prevail. The evidence shows that the property had, some years before the commencement of the action, been deeded to1 respondent by Miss Houghton, who. was the owner when the deed was made; that after the conveyance Miss Houghton did not claim to be the owner, and exercised no acts of possession or dominion over the land; that some time prior to the bringing of the. action respondent entered into a contract to sell the land to onei Pack, who at once prepared to build a house thereon, and later did build it. The contract for sale was not a conveyance; but an agreement to convey. The acts of respondent and of Pack holding under him were such as showed the assertion of dominion over the property, and since no one else was shown to be in possession, it follows that respondent had such possession as enabled him to maintain the action under § 5521, Bal. Code, which, authorizes such an action to. be brought by one in possession by himself or his tenant. ■ Pack may not have been a tenant, strictly so called, in the ordinary meaning of that term as applied to1 a lessee, but his possession was analogous to- that of a lessee, since he was placed in possession by respondent, and held it for respondent as well as for himself. In Spithill v. Jones, 3 Wash. 290 (28 Pac. 531), cited by appellant, the court says:

“Bpon the trial of the cause the court found there was no proof tending to' show that plaintiff was in possession of the land in question or that the same was unoccupied by any. person.”

As we have seen, there was proof here that respondent was in possession, and this case, therefore, differs in that respect from the one cited. We think the court did not err in denying the motion to dismiss.

The remaining errors assigned are based upon the evidence and upon the findings of the court thereon, and also upon tlie coni’’s refusal to- make certain findings. It is assigned that the court erred in its second finding of fact, which is to- ihe- effect that respondent secured title to- said lots in 1895 by deed from Miss Houghton, and gave as consideration therefor the cancellation of a certain mortgage upon the 'property, originally given to the Dime Savings Bank, which mortgage had been assigned to respondent; and also gave the additional sum of $50 in cash. We think the above finding is- fully sustained by tlie. evidence, and we do not deem it necessary to discuss the evidence upon that, subject.

It is. assigned that the court erred in its fourth finding, which is as follows:

“That thereafter, on or about the 20tit day of February, 1901, one A. H. Hunn with notice and knowledge of plaintiff’s title to the: lots, above described secured from the said Ina H. Houghton a paper writing which purported to- be a deed to the said above described property; that the said Ina H. Houghton was a young lady not at all versed in business matters and not understanding tlie nature of the- instrument which she signed; and the said Hunn was a man long engaged in the real estate business, and that he represented to the said .Ina II. Houghton that it ivas necessary for her to sign the said deed in order that a suit for the foreclosure of some taxes on the property could he settled, and paid the said Ina H. Houghton for said deed the sum of thirty ($30) dollars, well knowing that the lowest cash value of said property at the time . ivas six hundred ($600) dollars.”

We think the finding is supported by the testimony. It may be stated here that we understand it is conceded — at any rate, the evidence establishes — that Hunn, and not Brewer, is the real party in interest under the deed made by Miss Houghton to Brewer. Brewer ivas an office mate with Hunn, and the deed ivas made to him at Hunn’s re¡quest; the negotiations for the deed being conducted by Wunn, and. the deed made to Brewer for Hunn’s convenience. It is found, as shown above, that jSTunn had notice of respondent’s title when he procured the deed from Miss Houghton to Brewer. We think the evidence shows such tu have been the fact. When he called upon the young lady, whom the court, reasonably finds, under the evidence, was inexperienced in business affairs, he spoke to her about these lots. She told him the property did not belong to her, but did belong to respondent, to whom it was turned over on a mortgage some years before, and suggested that he go and see respondent, or write to her father, who was in Alaska. He told her that respondent had said to him that he knew nothing about the lots. This respondent denies. Miss Houghton expressed surprise at the statement, and he then said to her, in substance, that the lots were, about to, be sold for taxes, and that a deed from her was necessary, as she was the only one, who could do anything with the property. He insisted that she should make a deed, and at first offered her no consideration, but upon the suggestion of a lady friend who was present afterwards offered her $20. She agreed to make1 the deed, and promised to, go to his office the. next day, which she did. At that, time, it was, agreed that he should pay her $30, which he did, and she then made the deed. The unpaid taxes and costs amounted to less than $200, the asr sumption of which he claims was, a, part of the consideration, and yet he claims to have, sold the lots to the Stanch-fields on the next day for $550 cash, they also assuming $160 of the taxes. When Miss Houghton told him that the property was not hersi, and that she. had already turned it, over to respondent on a mortgage, he had sufficient notice to put him on further inquiry; and, under all the circumstances above, stated, he cannot be, said to be an innocent purchaser, without notice of respondent’s interest in the property. The court did not err in the above finding-

It is assigned that the court erred in finding that the deed to respondent and the notice of lis pendens in this action were duly recorded in the auditor’s office. The evidence shows that they were both filed for record in the auditor’s office of King county, at nine o’clock a. m., February 23, 1901, and that they were afterwards spread upon the records. While the lis pendens may not have been spread upon the records at the time it was filed, yet “from the time of the filing” it became notice of respondent’s claims in the property, under thei terms of § 4887, Bal. Code. The finding is only specific as to' the date of filing, and in general terms states that the instruments were recorded. The lis pendens notice is the material thing here, and it became effective from the time of filing under the statute. There was no. error in the finding.

It is assigned as error that the court found that the deed from Brewer to Stanchfield was executed some time after the 22d and on or before the 27th of February, 1901, that the deed was neither made in good faith nor for any consideration, and that the Stanchfields had constructive notice of respondent’s claim by reason of the notice of lis pendens. The deed from Brewer to the Stanchfields purports to- have been executed on the 22d of February, and the Us pendens notice was filed at nine o’clock on the morning of the 23d. There is in the record the evidence of an expert witness to the effect that the date of the certificate of acknowledgment has been changed from the 27th to the 22d of February; that the date of the deed itself bears some evidence of a similar change, although not so marked as in the case of the other date, and that the date of the cancellation of the revenue stamp has been likewise changed. The appearance of the instrument itself, which is before us, bears evidence to support the conclusions of the expert witness. Mr. Bunn, however, testifies that no chaiige. was made in the date of the deed, and that, the change in the notary’s certificate was made at the time he drew the deed, which was on the 22d; that it ivas first written the 21st, and he at once discovered .the mistake, and changed the figure “1” to a figure “2.” The date of its purported execution was a legal holiday, viz., Washington’s Birthday. The husband of Mrs. Stanchfield, the grantee, testified that'they hastened to malee the deed on that day because there were but a few days remaining in which the taxes could he paid before sale. The deed was, however, not filed for record until five days afterwards,— [February 27th. The Stanehfields did not pay the taxes, but they were paid by respondent. One witness testified that Mrs. Stanchfield told him that the deed ivas not executed on Washington’s birthday, the 22d, hut was executed on Monday. This statement she denies. Monday was the 25th of the. month. It appears from the evidence that Bnnn and the Stanehfields have for a long time been personal friends, and that Mr. Stanchfield at one time occupied desk room in Bunn’s office; that Mr. Bunn, by the purported sale to them, was to receive a net. profit of about $500 on what had actually cost him hut $30 the day before. Bunn and the Stanehfields testified that the deed was executed on the date it bore, and also1 averred the good faith of the transaction. Mr. Stanchfield, however, stated that they bought the property on the personal and verbal guaranty of Bunn that he would defend any suits involving the title. Mr. Bichols, the notary who took the acknowledgment of the deed, was a partner of Mr. Bnnn, and Mr. Brewer, the grantor in the deed Avas an occupant of Mr. Bunn’s office. Beither Avas called to testify concerning the aetfial date of the execution of the deed, nor was their absence explained, — a circumstance that weighs perhaps as much against one party as. the. other. Respondent, however, offers the excuse that their relations with Runn were such that, he could not advisedly call them.

From the above review of the evidence it is manifest that, although the evidence - was very conflicting, yet there was testimony upon -which to> base the court’s finding that the deed -was not executed on the; 22d of February, but was executed after that date, and on or before the 27th, and also that the deed was neither made in good faith nor for any consideration. It is true respondent had for a long time neglected to file his deed for record, and this court, in Sayward v. Thompson, 11 Wash. 706, 710 (40 Pac. 379), quoted approvingly from Boggs v. Varner, 6 Watts & S. 469, as follows:

“As every presumption is in favor of the subsequent purchase!’, when the former owner is guilty of neglect, his title cannot be postponed except by evidence which taints his conduct with fraud.”

There was evidence hearing upon fraudulent conduct in the case at bar, which the court must have believed to sustain the finding it made. The trial court had these witnesses before him, and was better able to pass upon the weight and credibility of their testimony than we are able to do from what appears in the record. That court found the weight of the testimony to be against the appellants, and the record is not such as leads us to believe we would be justified in disturbing its finding.

We think no error was committed by the refusal of the court to make findings requested by appellants, when the court’s view of the testimony is considered. The essential and material facts were found if the court properly interpreted the testimony, and for the reasons above given we are unwilling to say under tbe record that the court erroneously weighed 1h.e testimony. Appellants Stauchfield must, therefore, he held to have had at least constructive notice of respondent’s claim to the property through the lis pendens notice at tire time the deed was executed. Appellant Brewer, not being the real party in interest under the deed from Miss Houghton to him, is bound by the notice to Mr. Munn who is the party in interest.

The. judgment is affirmed.

Reavis, C. J., and Fullerton, Dunbar, Mount, Anders and White, JJ., concur.