Bates v. Drake

• Decision Date: 26 April 1902
• Citation: 28 Wash. 447,68 P. 961
• Court: Washington Supreme Court
• Parties: BATES et al. v. DRAKE et al.

68 P. 961

28 Wash. 447

BATES et al. v. DRAKE et al.

Supreme Court of Washington

April 26, 1902

Appeal from superiro court, Pierce county; O. V. Linn, Judge.

Action by Charles O. Bates and others against C. M. Drake and others to establish title to certain realty. There was a decree in favor of defendants, and plaintiffs appeal. Reversed.

Bates &amp Murray and John H. McDaniels, for appellants.

Eric Edw. Rosling, for respondents.

FULLERTON J.

In December, 1893, one Alexander S. Bailey and Amanda E. Bailey his wife, were the owners of certain lots in the city of Tacoma, in this state, the title to which stood in the name of Amanda E. Bailey. At the same time the respondent C. M. Drake claimed to be the owner of certain parcels of land situate in Los Angeles county, state of California. The several properties were valued by the parties at $12,000. On the 30th day of that month the parties agreed to exchange the properties one for the other, and in pursuance of that agreement the Baileys on that day executed and delivered to C. M. Drake a deed to the property in the state of Washington, and put him in the possession of the same. The Drakes at the same time executed to Amanda E Bailey a deed to the property in California. This deed was put in escrow, to be delivered when the Baileys should release the Washington property from certain liens then existing against it, and which, in the agreement of exchange, they had contracted to pay. The Baileys were put in possession of the California property at the time of the execution of the deed, but were unable or unwilling to pay the liens on the Washington property, because, they claimed, Drake's title to the California property was defective, and they were unable to obtain a loan thereon. Some litigation was had between the parties in the courts of both states over the properties, the precise nature of which does not clearly appear. The final result, however, was that the Drakes regained possession of the property in California, and the deed to the same, which they had deposited in escrow; thereafter having possession and the legal title, at least, to both tracts. While these matters were pending, C. M. Drake, for a recited consideration of $3,000, conveyed to his wife, Maria S. Drake, all his interest in the property in Washington, reciting in the deed therefor the following: 'The intention of the grantor herein being to convey to grantee, his wife, all of his right, title, and interest and estate, including any community interest that he may have therein, and vests the title thereto in grantee as her separate property.' Afterwards Alexander and Amanda Bailey began an action in the superior court of Pierce county, in this state, against C. M. Drake, in their complaint in which they recited the transaction between the parties, averred they had been damaged thereby in the sum of $10,368, and recovered a judgment for the full sum demanded. Execution was issued upon this judgment, and the property in this state levied upon and sold to the Baileys for $5,000, and a certificate of sale issued to them by the sheriff. This certificate was sold and assigned to the appellants in this action prior to the time for redemption had expired. The present action was instituted by the appellants while they held only the certificate of sale. In their complaint they alleged the agreement to exchange properties between the Baileys and C. M. Drake; the exchange of the properties thereunder; that C. M. Drake, as an inducement to the making of the exchange, represented and stated that he was the owner of and had perfect title to the property sought by him to be exchanged for the property of the Baileys,--all of which was well known to the respondent Maria S. Drake. They allege the recovery of the judgment against C. M. Drake arising out of the exchange of the properties; that C. M. Drake had no other property in this state out of which the judgment could be made other than the property mentioned; the execution upon the judgment; the sale of the property thereunder by the sheriff to the Baileys, and the assignment of the certificate of sale to them. They alleged that the deed made by C. M. Drake to his wife was made without consideration, and with the intent to hinder, delay, and defraud their creditors, and especially the Baileys and their assignees, and that the wife received the conveyance with such intent, and without paying any consideration therefor. They prayed that the deed from C. M. Drake to Maria S. Drake be canceled, set aside, and held for naught; that it be adjudged that neither of the parties thereto had any interest in the property so conveyed other than the right to redeem from the sheriff's sale, and that the appellants have such general relief as to the court should seem meet and equitable. After issue had been joined on the allegations of the complaint, but prior to the trial of the cause, the appellants received a sheriff's deed to the property, whereupon they filed a supplemental complaint setting up that fact, and further praying that they be adjudged the owners in fee simple thereof. The respondents filed a general demurrer to the original complaint, which the trial court overruled. They thereupon answered separately, each denying all of the allegations of the complaint save the exchange of the properties between C. M. Drake and the Baileys, and that he had conveyed the property received in the exchange to his wife, Maria S. Drake. For a further and separate defense the respondent C. M. Drake alleged that he never at any time had any interest in the property in question, but held the same in trust for his wife, who furnished the consideration for its purchase from the proceeds of her own separate funds and property acquired by her prior to her marriage with him. He also pleaded as res judicata another action between the same parties, brought to eject them from the premises, which was dismissed without prejudice by the court at the conclusion of the evidence. The respondent Maria S. Drake filed an answer containing substantially the denials and allegations set up by her codefendant; further alleging, however, that the sale made by the sheriff of the property in suit was a cloud upon her title, and prayed that her title be adjudged good and valid, that the sale and muniments of title relied upon by the appellants be held void, that they be enjoined from in any manner asserting title to the premises adverse to her, and for general relief. The allegations of the affirmative answers were put in issue by replies. The trial court, after a hearing, found that the deed from C. M. Drake to his wife was made for a valuable consideration, and without any intent to hinder, delay, or defraud creditors, and was received by the wife without any such intent. A decree was entered accordingly, holding for naught the appellants' muniments of title, enjoining them from asserting any claim to the property by reason thereof, and quieting the title to the premises in the respondent Maria S. Drake. This appeal is from that decree.

As a preliminary question, the respondents insist that the appellants cannot maintain this action. It is said that, as their complaint does not allege, and it was not shown by the evidence, that the land in controversy was in the possession of the appellants, or that the same was vacant, at the time the suit was instituted, the appellants cannot recover because a plaintiff must allege and prove one or the other of these facts before he can maintain an action to quiet or remove a cloud from title. Spithill v. Jones, 3 Wash. St. 290, 28 P. 531, is cited as sustaining this contention. This court in that case did hold that an action to quiet title should be dismissed for want of equity where the proofs failed to show that the plaintiff was in possession of the lands the title to which was sought to be quieted, or that the same was unoccupied by any person. It spoke also as if the question was one of the jurisdiction of the court. It is clear, however, from the opinion as a whole, that the court did not mean by its use of this term that it was without jurisdiction or power to determine the subject-matter of the controversy between the parties, or that a judgment entered therein would have been void, but meant rather that equity would not entertain a suit to quiet title when the plaintiff had an adequate remedy at law, and that he had such adequate remedy in that case by an action of ejectment against the person in possession. In other words, it was held that plaintiff had mistaken his form of action, and the court would not permit him to maintain it over the objection of the defendant. And this must be so from the nature of the objection. The fact that the plaintiff is or is not in possession, or that the land is or is not vacant, does not affect the jurisdiction of the court to determine...