121 Wash. 632 | Wash. | 1922
In December, 1909, the respondents, Hendrickson, contracted to sell to one Bessie B. Utter a twenty-acre tract of land situated in Clarke county, saving to themselves the timber standing on the land (except a small described tract), and a right of way over which to remove the timber. After agreeing upon the contract, the parties went to a notary public, stated their agreement to him, and requested him to prepare the necessary legal instruments to carry the agreement into execution. The notary informed them that it would he necessary to execute a written agreement expressing the agreement of sale and a warranty deed to the property from the Hendricksons to Mrs. Utter. Instruments were prepared by the notary in accordance with his ideas — the contract being in form an
The respondents shortly thereafter caused the contracts to be recorded. Later on, presumably when the respondent F. D. Hendrickson called for the instruments at the auditor’s office after they had been recorded, the auditor informed him that the contract had been executed by the wrong party; that he and his wife should have executed it instead of Mrs. Utter. The respondent thereupon took the contract to his home, erased the name of Mrs. Utter, signed it himself and caused his wife to sign it, and returned it to the auditor to be again recorded.
On October 31, 1913, Mrs. Utter, her husband joining in the conveyance, conveyed the land by warranty deed to the appellant Lettie Lyons. The deed was absolute on its face, containing no reference to the reservation of the timber or the right of way over which to remove it. The appellant, however, was not a purchaser without notice. At the time of the negotiations leading up to the purchase, she was informed that the respondents owned the timber, and the consideration for the purchase was fixed with that understanding.
Sometime in 1917, the appellant Lyons made claim to the timber, and in the following January (1918) the respondents began the present action to quiet their title to the timber. Issue was taken on their complaint, and a trial had which resulted in a decree confirming title in the respondents to the timber on the entire tract.
While a number of assignments of error have been made, they can be reduced to certain principal contentions, and these we will notice in their order.
It is undoubtedly a general rule that equity will not grant relief against mistakes of law, but the rule, like many others,' has its exceptions, and we are clear that the case here is within an exception. As was said by the supreme court of the United States in Hunt v. Rousmaniere, 1 Pet. (U. S.) 1:
“When an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into; but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.”
In Oliver v. Mutual Commercial Marine Ins. Co., 2 Curt. (U. S.) 298, it was said:
“There is a wide distinction between a case where an instrument is what the parties agreed it should be, but its legal effect is unexpected, and a case where an instrument was designed to carry into effect an existing binding agreement, but, by mistake, fails to do so. In the former case, the party never had a right to anything more than he has got; he may be disappointed in finding that what he acquired was less valuable than he expected, but he acquired all he bargained for, and there is no ground upon which a court of equity can give him anything more. On the contrary, in the latter case, the party had a complete right, by an existing contract, to something which, by mistake, he has*636 failed to get; and this contract, and the right under it, still subsists, in point of equity; because, though the parties attempted to execute the contract, by mistake, they failed to execute it; and therefore, a court of equity interposes and, upon the footing of an existing contract, unexecuted, proceeds to put the party in that condition to which his contract entitles him. And in this class of cases, I apprehend, it is wholly immaterial, whether the party failed to obtain that to which he was entitled, through a mistake of fact or of law.”
Later cases from the supreme court of the United States maintain the same doctrine (see Walden v. Skinner, 101 U. S. 577), and our own cases of Dennis v. Northern Pac. R. Co., 20 Wash. 320, 55 Pac. 210; State v. Lorenz, 22 Wash. 289, 60 Pac. 644, and Murray v. Sanderson, 62 Wash. 477, 114 Pac. 424, are to the same effect, although the precise question suggested was not discussed in the opinions. Indeed, it seems to be the almost universal current of authority that mistakes of this sort will be relieved from in equity, whether they be strictly mistakes of law or mistakes mixed of law and fact.
The second contention is that the action is barred by the statute of limitations. On this branch of the case the appellant argues as follows:
‘ ‘ The property in question for which this action has been brought has not been in possession of plaintiffs either actually or constructively since the sale made to Bessie B. Utter. The plaintiffs and respondents have brought action to quiet title, and appellant contends' that in this case said action should have been commenced within seven years from the date of said sale to Bessie B. Utter.”
The case of Krutz v. Isaacs, 25 Wash. 566, 66 Pac. 141, is cited and quoted from in support of the contention. But the case, it seems to us, has little bearing
Parties may so frame their contract as to give the purchaser of timber an unlimited time for its removal; but if this bé the intention, it must be clearly and definitely expressed. Such a conveyance has the effect of practically ousting the owner of the soil from its use and enjoyment, and the law will not presume this to be the intent of the parties, unless the contract of sale clearly requires such a conclusion. Carson v. Three States Lumber Co., 108 Tenn. 681, 69 S. W. 320; Skamania Boom Co. v. Youmans, 64 Wash. 94, 116 Pac. 645; Healy v. Everett & Cherry Valley Tr. Co., 78 Wash. 628, 139 Pac. 609; France v. Deep River Logging Co., 79 Wash. 336, 140 Pac. 361, Ann. Cas. 1916A 238.
Passing to the question indicated, we cannot think enough is here shown to require the holding that the right to remove the timber has been lost. What will constitute a reasonable time is usually a mixed question of law and fact, and no fixed rule can be laid down for its determination. It is dependent upon the facts and circumstances of the particular case; such
The third contention is that the respondents have lost their rights because of the alteration of the first of the writings prepared by the notary. But this alteration in no way affected the rights of the parties or misled any one as to their rights. It was done through ignorance, pursuant to ill-timed and ill-considered advice, and in an honest effort to make the instrument expressive of the intent of the parties. Under such circumstances it would be a harsh rule to hold that the act worked a forfeiture of the respondents’ interests.
It was provided in the contract that the respondents should pay the taxes assessed on the timber so long as it was permitted to remain upon the property. These taxes were paid by the respondents, except for one year, when they were paid by the appellant because of some mistake made by the assessor. The appellant contends that it was error on the part of the court to enter a decree quieting title to the timber in the respondents without requiring the repayment of the taxes. But the matter was not made an issue in the pleadings. It appeared incidentally in the evidence, and the court was at no time requested to require the prepayment as a condition precedent to a recovery on the part of the respondents. Conceding, therefore, that there was a right of recovery, no cause for complaint exists because it was not embodied in the decree.
There was, however, an error in the decree in that it failed to exempt a small quantity of timber not
The decree is reversed with instructions to so modify it as to exempt from its operation the timber not reserved at the time of the sale of the land. Neither party will recover costs.
Parker, C. J., Mitchell, Tolman, and Bridges, JJ., concur.