Erickson v. Wahlheim

319 P.2d 1102, 52 Wash. 2d 15, 1958 Wash. LEXIS 326

• Court: Washington Supreme Court
• Decided: January 9, 1958
• Docket: 33662
• Status: Published

Opinions

Foster, J.

In this quiet-title suit, both appellant John E. Erickson and respondent Ester Erickson Wahlheim claim title. Respondent Ester Erickson, now Ester Erickson Wahlheim by marriage to respondent Harold T. Wahlheim, purchased the real property in question by executory contract dated October 6,1941, for the sum of thirty-six hundred dollars, eleven hundred dollars of which was paid in cash with the balance payable at the rate of thirty dollars a month. Her brother, John E. Erickson, the executor of the estate of their mother, Anna E. Taylor, sued to quiet the title to that property, and respondent, Ester Erickson Wahlheim, by cross-complaint, prayed that the title be quieted in her. From the judgment quieting the title in respondent Ester Erickson Wahlheim, the mother’s executor appeals.

On September 20, 1945, Ester Erickson Wahlheim assigned the contract to her mother, Anna E. Taylor, now-deceased. The assignment included a bargain and sale deed by which respondent conveyed the property to her mother. The words of conveyance are “does bargáin, sell and convey said described premises to said assignee.” That instrument was acknowledged and recorded in the manner required by law for the acknowledgment and recording of deeds.

The court found that the original payment of eleven hundred dollars was made by the respondent Ester Erickson Wahlheim with her own funds; further, all subsequent installments of the purchase price were, likewise, paid by her with her own funds; and on March 7, 1946, she borrowed sixteen hundred odd dollars and paid the entire balance then due on the executory contract and received a fulfillment deed from the First Savings and Loan Association, to whom the vendor in executory contract had assigned her interest. This conveyance is a conventional warranty deed from the grantor savings and loan association to the grantee Ester Erickson. The actual payment was made by the decedent, to whom the savings and loan association delivered the deed. Thereafter, Mrs. Taylor also directed that the deed be recorded.

The court, concluded that the acceptance of the fulfillment deed and the recording thereof by the mother was for the purpose. of passing the title to respondent, and the only purpose of the assignment and bargain and sale deed was the daughter’s desire “to assure her Mother while she lived or was single that she would have a home.”

But this ignores the very positive provisions of RCW 64.04.010, which provides in part:

“Every conveyance of real estate or any interest therein, and every contract creating or evidencing an encumbrance upon real estate, shall be by deed.”

After the delivery and recording of the bargain and sale deed, the title remained in the mother because real property can be conveyed only by deed.

Although the respondent pleaded an express trust, none was proved, and the court made no findings with respect to any form, of trust. Therefore, no question of trust is involved in this appeal. .

The after-acquired title of the respondent under the fulfillment deed passed to her mother by the terms of Rem. Rev. Stat., § 10571² [ef. RCW 64.04.070], which declares if a person without title conveys property by deed and thereafter acquires title, the after-acquired title passes to the grantee.

Rem. Rev. Stat., § 10553 [cf. RCW 64.04.040], declares that a deed which, in- the granting clause, contains the words “bargains, sells and conveys” is a bargain and sale deed. It was expressly decided in American Sav. Bank & Trust Co. v. Helgesen, 64 Wash. 54, 62, 63, 116 Pac. 837, that a bargain and sale deed conveys an after-acquired title.

Under such circumstances, there was no reason for Anna E. Taylor to object to the First Savings and Loan Association conveying to the respondent by warranty deed, because both by statute and decisional law that vested in her the fee.

The judgment is reversed, and the cause is remanded with instructions to quiet the title in the appellant.

Mallery, Donworth, Weaver, and Ott, JJ., concur.

2 ‘Whenever any person or persons having sold and conveyed by deed any lands in this state, and who, at the time of such conveyance, had no title to such land, and any person or persons who may hereafter sell and convey by deed any lands in this state, and who shall not at the time of such sale and conveyance have the title to such land, shall acquire a title to such lands so sold and conveyed, such title shall inure to the benefit of the purchasers or conveyee or conveyees of such lands to whoni such deed was executed and delivered, and to his or their heirs and assigns forever. Ahd the title to such land so sold and conveyed shall pass to and vest in the conveyee or conveyees of such lands, and to his or their heirs and assigns, and shall thereafter run with such land.”