29 Wash. 670 | Wash. | 1902
Tlie opinion of the court, was delivered by
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.
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
“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
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
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
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 erron
The. judgment is affirmed.
Reavis, C. J., and Fullerton, Dunbar, Mount, Anders and White, JJ., concur.