52 Wash. 437 | Wash. | 1909
On the 8th day of July, 1903, the plaintiff in this action conveyed the property now in controversy to the State Bank of Wilson Creek by a quitclaim deed reciting a consideration of $500. On the 25th day of May, 1904, the State Bank of Wilson Creek, conveyed to the Citizens Bank of Wilson Creek by a like instrument. This action was instituted against the two banks to set aside the above mentioned deeds on the ground that the former was obtained through fraud and misrepresentation. From a judgment in favor of the plaintiff according to the prayer of his complaint, the present appeal is prosecuted.
It appears that, at the time the first-mentioned deed was executed, the respondent and one Kemp were engaged in the saloon business at Wilson Creek, as copartners, the business being conducted on the lots in controversy. Kemp was indebted to divers persons and corporations, including the State Bank of Wilson Creek, in considerable sums. To the latter institution he owed the sum of $550, evidenced ,by two promissory notes upon which certain small interest payments had been made. The respondent testified, in substance, that the cashier of the bank had importuned him on several occasions to secure the Kemp indebtedness to the bank by mortgage, but that he had refused to do so; that he finally agreed to guarantee the payment of a certain $200 note to the bank, and that he signed and executed the quitclaim deed in controversy, assuming and believing that it was some kind of a contract of guaranty.
The assistant cashier of the bank, on the other hand, testified that the quitclaim deed wás executed to secure the payment of the two promissory notes above described; that the deed was executed freely and voluntarily, and that the re
As said by this court in Sahlin v. Gregson, 46 Wash. 452, 90 Pac. 592: “If this judgment is permitted to stand, deeds and other written instruments have lost their chief virtue.” In actions of this kind the authorities all agree that the proof on the part of the party seeking to defeat the operation of his deed must be clear, unequivocal and convincing. Dabney v. Smith, 38 Wash. 40, 80 Pac. 199; Reynolds v. Reynolds, 42 Wash. 107, 84 Pac. 579; Johnson v. Conner, 48 Wash. 431, 93 Pac. 914. Furthermore, the failure of the respondent to read the deed or have the same read to him, under the circumstances disclosed by this record, shows such negligence on his part as to place him beyond legal or equitable relief. Hubenthal v. Spokane & Inland R. Co., 43 Wash. 677, 86 Pac. 955.
It is further claimed that there was no consideration for the deed because it was given to secure a preexisting indebtedness, and there was no extension of time or other new con
The judgment should therefore be reversed with directions to dismiss the action, and it is so ordered.
All Concur, except Parker and Morris, JJ., who took no part.