25 Wash. 459 | Wash. | 1901
The opinion of the court was delivered by
Johan Gunderson instituted this action against Otto Gunderson and Annie Gunderson, his wife.
■ A number of errors are assigned in the brief of appellants, but we will confine our discussion to the third assignment, whieh is that the court erred in denying appellants’ motion for nonsuit. During the introduction of respondent’s testimony, he offered in evidence a written instrument claimed to be a deed for land mentioned in the complaint. It purported to convey said land to the appellant Otto Gunderson, and was signed: “Johan Gunderson. Annie Carine Gunderson, by Her Attorney in Fact, Johan Gunderson.” The instrument showed upon its face that it ivas executed in the state of Oregon, and that the land sought to be conveyed Avas located in said state. Ho poAver of attorney is shown in the record, from Annie Carine Gunderson to her husband, Johan Gunderson, authorizing him to execute the purported deed in her behalf. The Avife is not named in the body of the deed as being a party to it, and she is not mentioned in the certificate of acknowledgment. Johan Gunderson alone is named as the grantor in the body of the deed, and he alone is named in the officer’s certificate as having acknowledged the execution of the instrument. This instrument Avas offered in eAÚdence in support of the allegation of the complaint that said land was conveyed in accordance Avitli the contract described in the complaint. Objection Avas made by appellants’ counsel to the introduction of this offered instrument for the reason that it appeared that Johan Gunderson Avas a married man when the instrument Avas executed; that the land must be presumed to be community real estate, in the absence of a shoAving to the contrary, and, since his Avife had not joined in its execution, it Avas therefore void, and Avas not eAÚdenco of any consideration for the contract stated in the complaint. It Avas further urged
“Know all men by these presents, that Otto C. U. Gunderson, of the city of Spokane, Spokane county, and state of Washington, for and in consideration of certain lands, to wit, two hundred acres in Columbia county, state of Oregon, being conveyed to him this day by a deed executed, sealed, and delivered to the said Otto C. U. Gunderson by Johan Gunderson, at Portland, Multnomah county, state of Oregon,” etc.
The court construed the above words to mean that the deed of Johan Gunderson alone was required by the contract ; that it did not call for any deed from the wife, but one for just what Johan Gunderson could convey for himself; and that, since it appears that the offered instrument conveys all that the contract requires, it is immaterial whether the instrument is an effective conveyance either under the law of this state or that of Oregon. This view of the court seems to be in conflict with the case made by respondent in his complaint. lie alleges that he entered' into a contract “by the terms of which plaintiff agreed to convey to said Otto Gunderson by good and sufficient deed,” and, further, that “said land was duly conveyed to said Otto Gunderson as per said agreement.” It therefore appears that respondent in his complaint construed his own
This brings us to the further contention of appellants, viz.: that under the pleadings and proofs the court must presume the law of Oregon to be the same as our own. In California the trial court charged the jury as follows:
“The sale relied upon by the plaintiff, Hickman, of a portion of the property in controversy from U. J. Barrens to him took place in Oregon, and without the jurisdiction of the state of California; and therefore the said sale cannot he attacked by the defendant in this cause for an actual or legal fraud provided for by the statute of California relating to fraudulent conveyances.”
The court says of the above charge as follows:
“This charge was erroneous. There was no proof made as to the laws of Oregon, and in the absence of such proof the court should have presumed them to be the same as the laws of our own state. This rale applies to the statute law of the state as well as to the common law.” Hickman v. Alpaugh, 21 Cal. 226, 227.
The same rule has been followed in a number, of subsequent California decisions. See Hill v. Grigsby, 32 Cal. 56; Marsters v. Lash, 61 Cal. 622; Shumway v. Leakey, 67 Cal. 458 (8 Pac. 12); Mortimer v. Marder, 93 Cal. 172 (28 Pac. 814); Cavallaro v. Texas & Pacific Ry. Co.,
The judgment is reversed and the cause remanded, with instructions -to the court below to enter judgment of non-suit and dismissal of the action, with costs taxed against respondent.
Reavis, C. J., and Andebs, Dunbab, Mount and White, JJ\, concur.