57 Wash. 62 | Wash. | 1910
In 1906 the appellant conveyed to the respondent a lot in the city of Seattle, by a statutory warranty deed.
It is first contended that the clause should be treated as surplusage, or as a condition subsequent, and not as an incumbrance. We think the clause is an incumbrance.
“Any right existing in another to use the land, or whereby the use of the owner is restricted, is an incumbrance.” Wetmore v. Bruce, 118 N. Y. 319, 28 N. E. 303.
“If the right or interest of the third person is such that the owner of the servient estate has not so complete and absolute an ownership and property in his land as he would have if the right or interest spoken of did not exist, his land is, in' law, diminished in value and incumbered.” Mackey v. Harmon, 84 Minn. 168, 24 N. W. 702.
“A building restriction constitutes an incumbrance upon the title, and its imposition is a breach of the covenant against incumbrances.” 5 Am. & Eng. Ency. Law (2d ed.), 6.
See, also, Streeper v. Abeln, 59 Mo. App. 485.
It is further urged that no damages arise until some right is asserted under the restrictive clause, and that the evidence does not show that any right has been claimed. Leddy v. Enos, 6 Wash. 247, 88 Pac. 508, 34 Pac. 665, is cited in support of this contention. In that case it was held that, under the terms of a deed which was not a statutory warranty, the covenant was one for quiet enjoyment, and that
The point is made that, if the clause is an incumbrance, the damages are not susceptible of ascertainment, and that there can be no recovery. This contention is equally without merit. It is obvious that relief cannot be denied because the action is of such a nature that the extent of the liability cannot be determined with mathematical accuracy. The rule contended for would result in an exemption from liability in all cases of unliquidated damages. The case in this respect is analogous
It is also contended that there can be no recovery because the deed containing the restrictive clause was of record at the time of the execution and delivery of the respondent’s deed; that he had constructive notice, and that the warranty does not include a known incumbrance. This rule has been adopted by some courts where the incumbrance was an easement in the property, such as a public highway, a driveway, or a canal, which was open and visible and of a continuous character at the time of the passing of the title. We are not called upon to determine what the rule would be in such cases. In West Coast Mfg. & Inv. Co. v. West Coast Imp. Co., supra, it was held that, where the grantor conveys land by metes and bounds with full covenants of warranty, he is bound by his covenant as to the whole tract, although a portion of it was plainly and notoriously tide land claimed by the state. In Barlow v. Delaney, 40 Fed. 97, it was contended that the covenants in the deed were not broken by an incumbrance disclosed by the public records, the precise point urged here. In discussing this question, the court, speaking through Judge Brewer, said:
“The very purpose of the covenant is protection against defects; and to hold that one can be protected only against
See, also, O’Connor v. Enos, 56 Wash. 448, 105 Pac. 1039. We deem the logic of this view controlling in this case.
The respondent was permitted to testify that he had a tentative contract for the sale of the property upon which earnest money to the extent of $400 had been paid, and that the title was rejected and the money returned on account of the restrictive clause. This testimony was corroborated by the purchaser. The admission of this testimony is assigned as error, and it is further contended that the judgment is not supported by the evidence. These questions will receive attention in the order stated.
The courts have unanimously condemned this character of testimony, on the ground that it is too uncertain, speculative, and unreliable to form any basis for determining value. As was said in Sharp v. United States, 191 U. S. 341, 349, in discussing the admissibility of such evidence:
“In our judgment they do not tend to show value, and they are unsatisfactory, easy of fabrication and even dangerous in their character as evidence upon this subject.”
The same view was announced by this court. Parke v. Seattle, 8 Wash. 78, 35 Pac. 594; Chicago, M. & St. P. R. Co. v. Alexander, 47 Wash. 131, 91 Pac. 626. The testimony should have been rejected. Indeed, the learned trial court expressed a doubt as to its materiality and admissibility. The error, however, was harmless. There is abundant competent evidence tending to show that the property was damaged from eighteen to twenty-five per cent, or to the extent of $1,000 or $1,500. It is true that there is a conflict upon this issue. The practical, common sense view, however, is that a clause in a chain of title which limits the
We are of the opinion that the judgment is supported by the evidence, and it is affirmed.
Rudkin, C. J., Fullerton, Chadwick, and Morris, JJ., concur.