45 Wash. 543 | Wash. | 1907
On the 9th day of April, 1900, George B. Richardson filed on the southeast quarter of the northwest quarter, and the northeast quarter of the southwest quarter of section 14, tp. 59, N., R. 2 W. of Boise Meridian, and paid therefor with Northern Pacific Priest Reserve scrip. On June 29, 1900, Richardson quitclaimed the lands embraced in the above entry to the defendants, and on September 4, 1900, the defendants conveyed by deed of general warranty to the plaintiff. The application of Richardson for a patent was considered by the general land office on the 27th day of November, 1901, “And it was found that' a certain deed noted in the abstract of title from the Northern Pacific Railway Company to Richardson, dated December 22, 1899, bore no evidence of having been properly stamped under the requirements of the war internal revenue act then in force. The Coeur d’Alene local office was, therefore, directed to call upon Richardson to furnish the certificate of the county recorder showing that the omission in affixing and cancelling the proper amount of internal revenue stamps had been remedied, and that there had been no transfer of
While not pleaded separately, the • answer contains substantially the following defenses: (1) That at the time of the execution of the deed in question, the plaintiff was fully advised of the nature of the defendants’ title, and for the consideration paid agreed to accept such title as the defendants then had; that the defendants signed and executed a deed prepared by the plaintiff’s agent, believing that they were executing a quitclaim deed, and that if the instrument executed was a deed of general warranty, as alleged in the complaint, the same was procured by fraud and deceit; (2) that prior to the execution of said deed the plaintiff was fully apprised of the nature of the defendants’ title, and at the time of the purchase agreed to look after and attend to
The appellant proved the execution and delivery of the deed of general warranty, the failure of the respondents’ title, the amount of the consideration paid and a demand. This made a prima facie case on the first cause of action and entitled the appellant to a verdict for the amount of the consideration paid with interest, unless some of the defenses interposed are valid in law and established in fact. The first defense interposed, viz., that the appellant knew the state of the respondents’ title and agreed to accept such title as the respondents had for the consideration paid, and that the deed was obtained through fraud and deceit cannot be sustained. It is simply an attempt to defeat the operation and effect of the deed without allegation or proof of either fraud or mistake.
The second defense interposed is valid in law, if sustained by the proof. No attempt is here made to contradict the terms of the deed. The effect of the agreement and its nonperformance, if proved, is merely to show that the title failed
The third defense is also valid in law if sustained by the proof. The respondents had a right to show that they were prevented from perfecting the Richardson entry by reason of another selection made by or for the use of the appellant, without notice to the respondents or 'their grantor, and without giving them an opportunity to perfect their title. The court, however, could not have directed a judgment by reason of this defense, as it was not established by the testimony. It was stipulated that O. C. Rice, as attorney in *fact for the Santa Fe Pacific Railway Company, made lieu selection of the land described in the deed in controversy, on January the 16th, 1905, in the name of that company, and there was testimony tending to show that Rice was, at the time of making such selection, the manager and land agent of the appellant. But there was nothing to show that in making such selection Rice was acting for the appellant, or that the appellant had any interest whatever in the selection made. There was a recital in a letter or decision of the commissioner of the general land office received in evidence, over objection, to the effect that the Santa Fe Pacific Railway Company had conveyed the land to the appellant, but such recital was not evidence for or against either of the parties to this action. .
From statements appearing in the record, we infer that the court below directed a judgment on the theory that, independent of contract, it was the duty of the appellant to notify the general land office that it was the successor in interest of Richardson and the respondents, and to take all necessary steps to perfect the Richardson entry, or notify the respondents or Richardson so to do, and that by reason
On the second cause of action little need be said. It was shown that the appellant caused the title to another tract of land purchased at or about the same time to be perfected, at the special instance and request of the respondents, and that it paid the sum of $55 therefor. One of the respondents admitted on the witness stand that he had promised to pay the amount, that he delivered the money to his attorney to make payment, and that payment would have been made had it not been for the commencement of this action. While the testimony on the part of the appellant as to the reasonable value of the services rendered was very “slight, yet the promise of the respondents to pay the bill supplied any defect in the appellant’s proof, and judgment on the second cause of action should have been in favor of the appellant instead of the respondents.
The judgment is reversed, and upon a retrial the appellant will be entitled to a verdict in its favor for the amount of the consideration paid, with legal interest from the date of payment, unless the respondents show by competent proof, either (1) that the appellant agree to look after and perfect the title itself or to notify the respondents or Richardson
Hadley, C. J., Fullerton, Dunbar, Mount, Root, and Crow, JJ., concur.