29 Wash. 245 | Wash. | 1902
The opinion of the court was delivered by
This suit was brought by respondent against appellants to recover possession of certain real property in .Kittitas county, together with alleged accrued rents and profits for the use and occupation thereof. In the complaint'it is alleged, in substance, that at the time of the entry of the judgment in favor of respondent,’ and of
It is assigned- as error that the court overruled the several demurrers of appellants to. the complaint. It is first insisted that the complaint does not state a cause of action as to- appellant Olsen, for the alleged reason that the complaint shows that said Olsen was a tenant in possession at the time of respondent’s execution sale, and that as such he cannot be ousted by respondent merely by virtue of her rights as &n execution-purchaser. The provisions of § 15, oh. 53, pp-. 93, 94, Session Laws 1899, are invoked in support of this contention. It will be observed ■ that thei statute mentioned 'awards possession to a • tenant in possession holding" tender"an unexpired lease-during the period of redemption from an execution sale. The complaint here,
■ It is further alleged, under the above assignment, that the complaint does not state a cause of action against appellants Briggs and Denny, for the alleged reason that the property was in the possession of Olsen. The complaint in effect alleges a joint possession in all the appellants,, since it avers that they are all in possession. This is supplemented by the further averment that Olsen claims his right to possession by virtue of a tenancy from the others,, but it is not alleged that he is in exclusive possession, or that he claims the right thereto. The complaint states^ a cause of action against both Briggs and Denny, and their demurrers were also properly overruled.
It is next assigned that the cqurt erred in refusing to allow appellants to> show the terms of the lease under which appellant Olsen claims to hold the premises in controversy. It is insisted that the complaint alleges that Olsen claims-to hold from the other appellants as a tenant from month to month, and that no notice to terminate the, tenancy, or demand to* quit at the end of any monthly term, is alleged;.
It is next assigned that the court erred in refusing- to allow appellants to- show an alleged former interest of Dexter Shoudy in the said canal and water right, he being a grantor under whom appellant Denny claims to hold. The refusal of the court to which this assignment is directed related -to the offer of a deed from one Tjossem and
“The said Tjossem never at any time had any legal title to the premises above described, but the legal title thereto was vested in said John A. Shoudy and the only interest which was held by the said E. P. Tjossem was that which he had by reason of his oral partnership agreement with the said John A. Shoudy; and that in the latter part of 1887 the said E-. P. Tjossem and the said John A. Shoudy dissolved their said partnership and partnership! agreement and adjusted their accounts, and the said John A. Shoudy paid to the said E. P. Tjossem the balance due him upon their said accounts and the said E. P. Tjossem withdrew from said partnership agreement, and orally transferred all his interests in the partnership property to and left the said John A. Shoudy vested with full legal and equitable interest, in all of said property.”
The above finding, we think, is sustained by the testimony, and it is based chiefly upon the testimony of Tjossem himself. We do not discover in the testimony a statement of the exact year of the dissolution of the partnership- and settlement of accounts, which the- court found to be the latter part, of 1887, but it does- appear from, the testimony of Tjossem that the deed from him to Dexter Shoudy, offered in evidence, was executed after said dissolution and settlement. The deed bears date the 27th day of December, 1887, and was acknowledged August 24,. 1888. The finding as to> the date of partnership- settlement was therefore justified by the evidence. It thus appears that when Tjossem made this deed he had no interest in the property. He never held any legal title to- it. John A. Shoudy held the- legal title at all times, and when the
It is next assigned that the court erred in holding that John A. Shoudy was the owner in fee of the property in -question at the time of the execution sale under respond-
“Nothing can be founded upon an act or transaction that is absolutely void, but from such as are merely voidable, good titles may spring. And every stranger may take advantage of a void act, but not so of a voidable one.” 28 Am. & Eng. Enc. Law, p,. 474.
“A voidable sale passes the legal title subject to be avoided by a direct proceeding for that purpose, and it is not subject, to a collateral attack. It may be ratified. But a. void sale conveys no' title, is incapable of ratification, and may be shown to be a nullity even in a collateral proceeding.” Moody’s Heirs v. Moeller, 72 Tex. 635 (13 Am. St. Rep. 839, 841, 10 S. W. 727).
Appellants cite a number of cases which, they urge, support their contention that a void execution sale may be ratified by the parties interested, or that their conduct may estopi them from questioning its validity. A number of these cases relate to execution sales of personal property, where the owner stood by, and the sale was made with his consent, and by his implied authority. In such cases, the authority of the sheriff as agent, of the owner would doubtless be sufficient to- pass the title upon delivery with the owner’s consent. Such is the rule as to personal property; and no statute of frauds intervenes as in the case of real estate. Referring to the other cases cited, we find that in Parson v. Henry, 43 La. An. 307 (8 South. 918), real estate was sold, and it was claimed that payments had been made upon the judgment, and that it was therefore satisfied. It does not appear, however, that such satisfaction was, entered of record, and for aught that appears the execution was regular in form, and issued from the proper court. Such a sale might have been voidable,
It having been determined that the execution was void, and passed no title, then, if title passed at all, it must have been by virtue of Shoudy’s consent and oral agreement with Briggs, and in conflict with the statute of frauds. Certainly, the doctrine of estoppel should not be held to create title to land unless strong equitable reasons exist in support of it.
“The doctrine of estoppel m pais should not be too readily extended when the effect of it is to- divest men of their estates in lands. It should be remembered that we have a statute which makes a writing essential to the assignment or creation of an estate in real property, and that one of the objects of such statute was to- render estates secure. In Parker v. Parker, (2 Met. 423,) the supreme court of Massachusetts held that a parol stipulation made by one party and acted on by the other, will not constitute an estoppel with reference to land unless it be attended by actual fraud or concealment. (5 Met. 461 and 478.)” Davis v. Davis, 26 Cal. 23, 42 (85 Am. Dec. 157).
In Boggs v. Merced Miming Co., 14 Cal. 279, 367, 368, Mr. Chief Justice Bielb states the rule as follows:
“It is undoubtedly true that a party will, in many instances be concluded by Ms declarations or conduct, which have influenced the conduct of another to his injury. The*260 party is said, in such cases, to he estopped from denying the truth of his admissions. But to the application of this principle with respect to the title of property, it must appear, first, that the party making- the admission by his declarations or conduct, was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge, and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.”
Tested by the above rule so clearly stated, we think title was not created by estoppel under the facts of the case at bar.
A further element also exists in this case. The evidence! shows that, at the time of this sale, Mr. Shoudy was heavily indebted, and in failing circumstances. The attempted levy was upon all his real estate. It was held' in Succession of Hiligsberg, 1 La. An. 340, that a debtor, under such circumstances, cannot waive any of the formalities established by law for the sale of property under execution. We think the rule there announced is wholesome and correct. The sale being void the execution creditor, having paid no. money, and having parted with nothing, is reinstated to all his rights under the judgment. Borer, Judicial Sales (2d ed.), §§ 864, 865.
It is next contended that the canal and water right is not appurtenant to the mill property. We think it is clearly appurtenant. It was constructed by the1 owners of the mill property, and has always been used, since its construction, for the benefit of the mill. The mill property, as the principal thing, is dependent upon it, and, as a thing incident to the principal thing, the canal passes
The judgment is affirmed.
E-eavis, O'. J., and Fullerton, White, Anders, Mount and Dunbar, JJ., concur.