24 Wash. 225 | Wash. | 1901
The opinion of the court was delivered hy
In December, 1872, Henry L. Tesler was the owner of the premises in controversy and platted the land into Terry’s Second Addition to the Town of Seattle.
The first assignment of error is that the court abused its discretion in allowing an amendment to the complaint on the trial, by interlineation, alleging that the plaintiff’s grantor, S. Newman, paid all the taxes legally assessed against the property from 1887 to 1894, inclusive. It is alleged by the appellant that he was taken by surprise, and should have been allowed time to have investigated and secured copies-of the records of assessments. We think this contention was fairly answered by the court, upon the objection made at the time, when it said: “The defendant seems to set up the affirmative here, — the defense that they have paid all the taxes that were ever assessed against the property. They must have known something about the question of taxes, or they wouldn’t have made that allegation.” In addition to this, the amendment of pleadings is a matter so largely delegated to the discretion of the trial court that, unless there is a plain abuse of such discretion, it will not be interfered with by this court, and in this case we think the action of the court was not conducive, to the injury of appellant.
The second allegation is that the court erred in admitting the testimony of Everett Smith relating to Yesler
“In an action or. proceeding where the adverse party sues or defends as executor, administrator, or legal representative of any deceased person, or as deriving right or title by, through, or from any deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or any statement made to him by any such deceased or insane person, or by any such minor under the age of fourteen years.”
Without deciding whether the statute was intended to apply to a case of this kind, it is sufficient to say, in the first instance, that the testimony was admitted without objection, that the appellant entered into a rigid cross-examination of the witness on the subject involved, and that it was not until some days after that a motion was made to strike the testimony for the reason alleged. It is stated by the appellant, in an affidavit which appears in the record, that the reason he did not object was that he was taken by surprise, and that the testimony was given •so rapidly that he did not think to object. But the appellant must have been notified of the interest that Smith had, if any, in the result of this suit, for the complaint discloses it, by alleging that the title of the respondent
The same may be said in relation to the third assignment,- — that the court erred in the admission of testimony by witnesses Lowman and Everett Smith relating to what was intended to be conveyed by the deed by said Yeslerto said Smith, and also in refusing to strike said testimony. It is insisted that parol evidence is not admissible to vary or explain the description of a deed where there is no ambiguity, and cases are cited by appellants to sustain this proposition. The correctness of this rule will not be disputed, and it is evident that there is no ambiguity in this deed itself. But the rule is different where the ambiguity arises outside of the deed. In such instance, parol evidence is admissible to explain it. Said Mr. G-reenleaf, in vol. 1, § 277, of his work on Evidence:
“The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used. ■ It is merely a duty of interpretation; that is, to find out the true sense of the written words, as the parties used them; and of construction, that is, when the true sense is ascertained/ to subject the instrument, in its operation, to the established rules of law.”
And in § 282 it is said:
“To ascertain the meaning of these words, it is obvious that parol evidence of extraneous facts and circumstances may in some cases be admitted to a very great ex*230 tent, without in any wise infringing the spirit of the rule under consideration.”
It seems to us that this is a case which falls within the announcement just quoted, where parol testimony should he admitted, not to show that it was not the intention of the grantor and grantee to convey lot 6, but that by the use of the words “lot 6,” which they employed in the written instrument, the intention was to convey the triangular piece of land adjoining lot 6, and which it was supposed was embraced in the description “lot 6.” Parol evidence is, and must of necessity be always, admissible to identify the property described in and conveyed by a deed, to ascertain to what property the particulars of description in the deed apply. Ames v. Lowry, 30 Minn. 283 (15 M. W. 247).
See, also, Hicklin v. McClear, 18 Ore. 126 (22 Pac. 1057); Sengfelder v. Hill, 21 Wash 371 (58 Pac. 250).
USTo prejudicial error was committed by the admission of the abstract of title.
In answer to the fifth assignment, that the evidence adduced at the trial did not justify the findings of fact, wo will say, without specially reviewing the testimony, that an examination of the statement of facts convinces us that the findings were justified. The equities in this case seem to be with the respondent, and the judgment is affirmed.
Reavis, O. J., and Puleerton and Anders, JJ., concur.