57 Wash. 392 | Wash. | 1910
On or about the 13th day of January, 1890, one Noah Nelson, who was the owner in fee simple of certain uplands in Skagit county, Washington, platted said land as Nelson’s addition to Anacortes, Washington, and extended his plat over certain tide lands of the first class situated in front of said uplands. The following map will show the situation of the lands involved:
The line a-b-c-d is the shore line as fixed by the tide land survey. The dotted lines show the outline of that part of Nelson’s addition which was platted over tide water. On the 10th day of April, 1893, Nelson executed a mortgage upon lots E, F, G, and H, all of blocks 5 and 6, all of block 11, and all of block 12 except lots 19 and 20, to the Land Mortgage Bank of Northwestern America, Limited. This mortgage was subsequently foreclosed by the mortgagee, and a sheriff’s deed was regularly issued to the said mortgagee, which deed was regularly recorded, said property being conveyed to the mortgagee by the same description as was contained in the mortgage.
Subsequently to the execution of the Nelson plat, the state board of land commissioners platted the first class tide lands situated in front of the city of Anacortes, and included certain portions of the land covered'by the Nelson plat as parts of tracts 22 and 23, of plat 10, of said Anacortes tide lands of the first class, which, as is shown by the map, includes portions of lots G and H, and blocks 5, 6 and 12 of the Nelson plat. On or about the 13th of April, 1894, Nelson,
Subsequently the certificate of sale, which had been assigned to the Land Mortgage Bank by Nelson, was transferred by one Shorrock, the agent of the Land Mortgage Bank, to the defendant in this action, Gus Hensler. Some question is raised by the appellants as to the authority of Shorrock to make this transfer, but with the view we take of the other questions in the case, it is not necessary to discuss that one. Subsequently Hensler, by means of the written certificate of assignment, procured a deed from the state of Washington to tracts 22 and 23 of said tide lands, whereupon plaintiffs brought suit against Hensler and wife, praying for a decree adjudging that defendant Hensler held the title in such lands in trust for the use and benefit of the said plain
The court made findings of fact, and from such facts concluded that the deed from the Land Mortgage Bank to Dewar did not, as a matter of law, convey any of the tide lands whatever, nor did the description of the real property therein given designate more than the upland portion of the lots and blocks therein mentioned, and that the Land Mortgage Bank parted with none of its interest in any of the tide lands lying in front of said upland property; and concluded that, as the plaintiffs, in order to obtain the relief applied for, must rely upon the title of their grantor Dewar, and that Dewar, not having received title to any of the tide lands, could not convey the same to plaintiffs, the action was dismissed.
There are several assignments of error in this case based on the findings of fact, but as we understand from the argument of the appellants the assignments are made upon the theory that the court erred in its construction of the law, and that the findings of fact were made with reference to such alleged erroneous construction rather than upon any facts stated or proven. It is also claimed that the court erred in admitting extraneous testimony to determine the intention of the parties as to what was conveyed by the deed. The main question, as stated by the appellants, is to determine whether the rights of the plaintiffs claiming by warranty deed from the dedicator Noah Nelson were affected in any way by the subsequent platting of the tide land portion of the said Nelson plat by the board of state land commissioners. A great many cases are cited by the appellants to sustain certain well-known principles of law, which may be conceded for the purpose of this case, viz: That the general rule is that reference to a plat or map in a deed of conveyance makes it a part thereof; that if a party purchases a certain numbered block of land according to the official map of the city and his purchase is so described in the deed, a further
First, as to the objection to the admission of testimony of Dewar as to the intention of the grantor' or grantee when the deed was made from the bank company to Dewar. The complaint in this action is not brought exclusively upon the theory that the appellants were relying upon the description in the complaint, but it states in paragraph 5 that it was the intention of the seller to sell, and of the purchaser to buy, all of the land' within the above named description, whether the same was upland or tide land. This was a tender of an issue of intention which "was met by the answer, and the appellants are not now in a position to question the introduction of testimony which was put in evidence under issues raised by the pleadings.
On the other proposition, it may be said that, while ambiguities in the description will alone justify a recourse to evidence extraneous to the deed, yet the ambiguity is not
“The cardinal point is, what was the intention of the parties, as derived from the' deed itself? When that is discovered, it ought to be carried into effect if it can be done consistently with the rules of law. If the words and provisions are doubtful, they a.re to be taken more strongly against the grantor. If they are susceptible of different constructions, the court may take into consideration, the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted at the time of making the grant, for the purpose of ascertaining the probable intent.”
Finding", then, that there is an ambiguity and doubt as to whether the plat referred to was the plat as it originally existed or as afterwards restricted, we will look at the circumstances of the case and the testimony adduced, not for the purpose of disputing the deed, but for the sole purpose of explaining it and of arriving at the real intent of the parties. There were two plats which covered this land in controversy at the time of the transfer, the old Nelson plat and the state plat, but that portion of the old Nelson plat which extended over the tide lands had been rendered void and of no effect
Again, in aid of the construction contended for by respondents, there was no attempt here by description to convey the same land that had been mortgaged to the bank, or to treat the description of said land in the way it had been treated when it was deeded to them. The mortgage given by Nelson to the Land Mortgage Bank was upon all of blocks 5 and 6, all of block 11, all of block 12 except lots 19 and 20, and lots E, F, G, and H, lying between blocks 5 and 6; and the sheriff’s deed in foreclosure covered the same property. But the deed of the bank to Mr. Dewar, under whom the appellants here must recover if they recover at all in this action, did not undertake to convey block 5 at all, or
As bearing somewhat on a technical construction of these two deeds, it may be noted that the deed from the Land Mortgage Bank to Dewar does not describe the property as so many lots and blocks in Nelson’s addition to the city of Anacortes, according to a plat thereof on record, or any plat, but simply as being said lots and blocks in Nelson’s addition to the city of Anacortes; so that there is really no plat referred to in that deed, although the plat is referred to in the deed from Dewar to Nelson.
Taking the circumstances surrounding this transaction into consideration, the fact that the state plat had covered these lands for nine years before the transfer, and the material difference in the description of the land in the two different deeds, it seems to us that the conclusion is inevitable that it was the intention of the Land Mortgage Bank to convey nothing to Dewar but the uplands, and that when the deed referred to Nelson’s plat, it referred to a legal plat that was then in existence. This view is strengthened by the oral testimony in the case which, notwithstanding some trivial contradictions in the oral testimony and written letters of the witness Dewar, is, as a whole, overwhelmingly in favor of respondents’ contention.
The judgment of the lower court will be affirmed.
Crow, Parker, Mount, Morris, and Gose, JJ., concur.
Rudkin, C. J., Chadwick, and Fullerton, JJ., dissent.