15 Wash. 101 | Wash. | 1896
The opinion of the court was delivered by
The land in dispute was the community property of Henry Eley and Lucy Eley. After the death of Lucy Eley it was conveyed to the children of Henry Eley, viz., Amy Eley and John Eley, by their father. This deed was executed on the 13th day of January, 1883, with the express consideration of the love and affection the father had for the children, the appellants in this case. The deed was a quitclaim deed and was recorded in the office of the auditor of Kitsap county on the 13th day of January, 1883.
On the 4th day of the subsequent December Henry
There are two principal contentions here by the respondents. One is that placing a deed on record does not work a delivery of the same, and the other is that under the testimony in this case it should be held that the sale to Hallan and Nesbitt was for the benefit of the heirs of the estate, and that that sale should now in effect be confirmed by this court, although it was not made by order of the probate court. But however desirable it might be to make such a ruling in this particular case, where it unquestionably appears that the grantor, Henry Eley, has acted dishonestly, and, in fact, seems to have no comprehension of fair dealing, yet it will not do to lay down and establish a wrong principle of law to meet and obviate the hardships of a particular case, for Henry Eley is not a party to this case; the action is brought against the minors, and they cannot be estopped by any dishonest conductor actions on the part of their father. The law at that time gave original jurisdiction of the sale of real estate for the benefit of the heirs to the probate court, and now does to the superior court. The advisability of selling this land was never before the probate court, no showing was made at the time that it was necessary to sell the same either to pay the debts of the estate, or for the maintenance of the minor heirs, and it would be a dangerous precedent to establish to allow the estates of minors to be sold in this way without any order of the court and many years afterwards to have the sale confirmed, when the testimony must of necessity be more meager and when the
Not being able, then, to hold that the deed to Hallan and Nesbitt was made for the benefit of the estate, and that the sale should be confirmed by this court on the theory of the existence of the necessity for such sale, and it conclusively appearing that the land in dispute was community property, the appellants have plainly not been divested of their mother’s interest in this land. Their right to the father’s interest in our judgment depends entirely upon the legal proposition of whether or not the recording of the quitclaim deed by the father was in law a sufficient delivery of the same, for the testimony satisfies us that no other delivery was ever made. The testimony of the father in regard to the delivery of the deed to Amy Eley is contradicted by the testimony of Amy Eley herself, — besides, it bears upon its face the impress of falsity. But we think that, under all the authorities, the recording of the deed by the grantor is a sufficient delivery to convey title; at least, it is prima facie evidence of the intention to. convey, and «specially where the conveyance is for the benefit of
This is an unfortunate case, but while it appears from the amended complaint that the respondents were ignorant of the fact that this land had, by prior deed, been conveyed to these appellants, they are in law guilty of negligence, for the record to which they are referred by the law for information on this subject discloses the existence of the deed to the appellants. The judgment in this cause must be reversed, and inasmuch as there seems to he no controversy over the facts in the case, a re-trial would be of no benefit, and the judgment will therefore be reversed with instructions to the lower court to dismiss the case at the cost of the respondents.
Hoyt, C. J., and Anders and Gordon, JJ., concur.