42 Wash. 487 | Wash. | 1906
— On the 13th day of September, 1884, the Northern Pacific Railroad. Company agreed to convey the south half of section 31, township 21, North, Range 45, East, W. M., in Spokane county, to Adelbert H. Wheeler, by written contract of that datei On the 9th day of October, 1884, said railroad company agreed to convey lots 3 and 4, of ■section 5, township 20, North, Range 45, East, W. M., in Whitman county, to Thomas Coakley, by a like written contract. Coakley thereafter assigned his contract to Wheeler, and Wheeler assigned both contracts to M. M. Cowley' as security. On the 26th day of June, 1887, Wheeler agreed to convey the lands embraced in both contracts to Hardin T. Attebery, in consideration of sixty bushels of wheat per acrei, to be delivered in six annual installments of ten bushels to the acre each. At the instance of Wheeler, this contract was entered into between Attebery and Cowley, to whom the railroad contracts had been assigned. Some time thereafter the indebtedness due from Wheeler to Cowley was paid or taken up, and at the request of the former the railroad contracts and the wheat contract were assigned by Cowley to Ham & Son.
During the years 1888, 1889 .and 1890, something over •thirteen thousand bushels of wheat were delivered by Attebery to Ham & Son, under the above contract. In the latter part, of the year 1890, D. T. Ham, the surviving partner of the firm of Ham & Son, agreed to accept $4,500 in cash in lieu of the balance of the wheat to be delivered under the wheat contract, and Attebery, the other party to the contract, agreed to pay that amount. The necessary assignments were thereupon executed to enable Attebery to' obtain title from the railroad company, and on the 26th day of February, 1901, the lands embraced in both contracts were conveyed to Attebery by the railroad company. At or about the same time, Attebery and Samantha Attebery, his daughter, mortgaged the premises to the Deming Investment Com
Upon the execution of the wheat contract in 1887, Attebery, his wife and three daughters entered into possession of the lands described therein. In December, 1888, after the delivery of the first installment of wheat under the wheat contract, amounting to forty-two* hundred bushels, the wife of Attebery, and the mother of the present plaintiffs, died intestate. It does not appear that any administration was ever had upon her estate*. Some time prior to March 20, 1893, Attebery remarried, and on that day he and his second wife mortgaged the above described lands to the defendant O’ETeil, to secure the payment of the sum of $1,891.50. This mortgage was regularly foreclosed, and the defendant O’Ueil now holds and claims the land under and by virtue of a sheriff’s deed. The plaintiffs brought this action as heirs at law of their deceased mother, to recover an undivided one-half interest in the property, and for an accounting of the rents and profits. The court below awarded them an undivided seven eighty-thirds of the property, and a like proportion of the net rents and profits. Erorn this judgment both parties have appealed.
The two principal questions presented on the appeal are, (1) Did the mother of the plaintiffs have an interest in the property in controversy which passed to her children by opr eration of law upon her death? and (2) is the defendant O’Ueil a bona fide purchaser for value without notice*? The conclusion we have reached on the last question is decisive of the case. The court below found that the defendant O’JSTeil had full notice and knowledge of the right, title and interest of the plaintiffs as heirs of their deceased mother, at the time of the execution of the mortgage under which he claims title, but with this finding, we cannot agree. It is not claimed that O’ETeil knew the former Mrs. Attebery, or knew that she .or her children had or claimed any interest in the property, until long after the execution of the mortgage under which
A purchaser must, no doubt, exercise due diligence to ascertain the status of his several grantors at the time they acquired and conveyed the property, but he is not bound to go outside of and beyond the record to ascertain whether any-such grantor had an equity in the premises before he acquired his title, and whether he was-married or single when such equity was acquired. If such were the case, records and deeds would be of little avail, and the evils resulting from the adoption of such a rule would
We are therefore of the opinion that the defendant O’Heil