61 Wash. 393 | Wash. | 1910
Lead Opinion
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 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*395 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.
Dissenting Opinion
(dissenting) — I dissent. Under section 5917, Rem. & Bal. Code, property “acquired after marriage by either husband or wife, or both,” except such as is acquired by gift, bequest, devise or descent, with the rents, issues and profits thereof, is community property. Under the succeeding section, community real estate is subject to the lien of judgments recovered for community debts, and to sale on executions issued thereon. The land in controversy was the community property of Logan Snell and Clara Snell, his wife, on the 19th day of November, 1906, when levied upon under a writ of attachment, sued out in an action