5 Wash. 736 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
This action was brought to reform the description in a deed made by two of the appellants to the respondent. Two principal questions are presented: First, Has the plaintiff shown that there was a mistake in the description such as would authorize a court of equity to amend the same as between the parties thereto; and, secondly, does the proof show that the appellants Spinning occupied such a relation to the land in question that they will be protected as innocent purchasers?
The pleadings and proofs show that the mistake in the description originally occurred in a certain mortgage made by the appellants Stewart to one James E. Murne. The fact that there was in said mortgage a mistake in the description, as set out in the complaint, is clear from the proofs. Some time after the making of said mortgage such negotiations were had between said appellants Stewart and said Murne that he agreed to take that part of the land covered by the mortgage, situated at Tacoma, and
Appellants make a further contention that the deed to Elwood was absolutely void, and therefore not subject to reform, for the reason that, at the time it was executed and
As against the appellants Stewart, then, the respondent is entitled to the relief prayed for in his complaint; and, if the other appellants are in no better situation than they would have been if they had not conveyed, the decree of the lower court must be affirmed. Such appellants Spinning assert that for two reasons they are entitled to be protected as innocent purchasers of the land: First, For the reason that, at the time the land was conveyed to them by the other appellants, they had not such full knowledge of the mistake in the description contained in the mortgage and deed as charged them with knowledge of the equities of the grantee in said deed. We are satisfied, however, from the proofs that they had at least sufficient knowledge to put them upon inquiry, and, this being so, they must be held to have had such knowledge as would have resulted from such inquiry; and, under all the crcumstances of the
The judgment of the lower court must be affirmed.
Rehearing
ON PETITION EOR RE-HEARING.
The petition for re-hearing in this case satisfies us that we did not make ourselves fully understood in the opinion rendered herein. We said something in reference to the title derived by the appellants under the execution sale which was entirely unnecessary to the decision of the case. The principal thought which we had in mind at the time was that under the well settled rule applicable to
We see no reason to change the opinion that we then had in regai’d to that matter, and the petition for re-hearing must be denied.