121 Wash. 624 | Wash. | 1922
This is an action to quiet title to real property. As originally instituted, the appellant Threlkeld was plaintiff in the action and Everett Conway and others defendants. After the institution of the action, the respondents Hintz "intervened therein. Subsequently, the defendants named made default, and the contest was waged between the plaintiff and the interveners.
The facts of the case, as we gather them from the record, are in substance these: Sometime prior to the year 1890, certain owners of land in Whatcom county platted the same into lots and blocks with streets and alleys as a townsite, under the name of North What-com. Block seven of the plat, the land here in controversy, was divided into sixteen lots; lots one to eight, inclusive, forming the east half of the block, and lots nine to sixteen, inclusive, forming the west half. One of the alleys delineated on the plat extended north and south through the center of the block. At the time named, and for sometime prior thereto, the Belling-ham Bay Syndicate, a corporation, had title in fee to the west half of the block, the title to the east half
The respondents, as we gather from their testimony, first openly made claim to the lots in the east half of the block, other than lot eight, in 1906. At that time, the respondent Fred Hintz told Dyson, the first of the Japanese to occupy the west half, that he had a claim on the east half of the block and that he (Dyson) would have to pay a little rent for traveling over it. In 1908, he purchased lot eight from the record owner, taking a deed from the owner. This deed, however, he did not record until after the commencement of the present action. He also testified that he made the same claim to the west half of the block and that the Japanese occupying it, subsequent to one who procured the fifty-year lease, paid him a nominal rent for it. He also testified that he had done some clearing on the land during this period, had pastured it, and at one time had planted a small part of it to potatoes and had harvested the crop grown therefrom.
In 1913, the streets and alleys in the block were vacated by an order of the county commissioners. The respondent Fred Hintz signed the petition for the vacation, representing himself to be the owner of “a part of block seven.” He gives as a reason why he did not then lay claim to the entire block that his title by adverse possession had not then ripened. From the departure of the last of the Japanese in 1912, until he was interrupted by the acts of the appellant in 1920, he probably exercised acts of ownership over the entire block, save that he did not pay the taxes assessed against the west half; in fact, he paid no taxes on that half of the block at any time.
The present action was begun in April, 1920. It was tried by the court sitting without a jury. At the trial the appellant waived any claim to the property in the east half of the block, except the claim to have the water course kept open through that part of the block. The court found the course to be a natural water course; finding further, however, that the matter was not a subject of controversy and could not be made the subject of any finding or judgment of the court. On the part of the respondents, it found that they had been “in open, notorious, continuous adverse possession” of the entire block “for the following periods of time: The east half of said block 7 since the year 1891, and said plaintiffs in intervention [respondents] are now in open, adverse possession of said east half of said block 7; the west half of said block 7, and the vacated streets bounding the same and of lots 9 to 16, both inclusive, therein since the year 1906, and had maintained continuous, notorious, open and adverse possession of said west half of said block from said year 1906 until about the 20th day of April 1920, at which time the plaintiff, C. D. Threlkeld, entered into and upon said west half of said block 7.....” Further finding that the respondents entered into pos
The appellant questions the sufficiency of the evidence to justify the conclusion that the respondents have title to the leasehold interest acquired by C. Yokoyama. With this contention we are constrained to agree. The evidence concerning the respondents’ rights therein rests entirely in the testimony of the respondent Fred Hintz, and his testimony shows conclusively that he had no assignment of the lease, either orally or in writing. His claim is, and the court found, that' he acquired this right by oral assignment from Dyson and C. Yokoyama. But Dyson had no interest in the lease; his was a mere temporary right of occupancy, and he could confer no higher right on the respondents. From C. Yokoyama, he does not even testify to having acquired any such right. Concerning Yokoyama, his testimony is that he left the place suddenly, without informing anyone of his intention to leave. Moreover, if the date the respondent gives as to the time he left the premises be correct, Yokoyama had at that time assigned in writing his lease to K. Katayama, the person from whom the appellant pur
But is it contended that the respondents have a right of possession for the unexpired term of the lease in virtue of the statute of limitations. But we think this claim likewise without foundation. In our opinion, the evidence does not justify the conclusion that such possession as the respondents exercised over the premises was adverse to the Japanese occupants. The Japanese moved on the premises and occupied them without let or hindrance from respondents. Conceding the respondents’ testimony to the effect that a nominal rental was exacted from the Japanese who occupied subsequently to the second Yokoyama, adverse possession is not thereby established. The possession was neither open nor notorious. On the contrary, there was a very apparent attempt to conceal the claim whenever to do so would make the claim known publicly, or make it known to the holder of the lease. The
The respondent invokes the rulé that the appellant must recover on the strength of his own title, not on the weakness of his adversary’s, and contends that he has not shown title to the lease in himself. The contention that no title to the leasehold interest is shown has its foundation in the instrument of assignment from O. Yokoyama to K. Katayama. This instrument was in form an absolute conveyance, followed by a condition to the effect that if the assignor made a certain payment to the assignee in accordance with the terms of a certain promissory note, “then and in that event the said K. Katayama will re-transfer and re-assign the interest hereby acquired unto said undersigned (C. Yokoyama) and not otherwise.” The argument is that the instrument is on its face a mortgage and not an assignment, and hence a subsequent assignment of the lease to the appellant by Katayama passed no title in it to him. But the instrument is on its face a conveyance with a defeasance clause, and not a. mortgage. Possibly, under certain circumstances, extrinsic evidence would be admissible to show that it was intended
Our conclusion is that the appellant has title in fee to the west half of the block, free and clear of any claim of the respondents, and is entitled to have his title quieted.
The judgment is reversed, with instructions to enter a judgment accordingly.
Parker, C. J., Mitchell, Tolman, and Bridges, JJ., concur.