Bjmerland v. Eley

• Decision Date: 06 July 1896
• Citation: 45 P. 730,15 Wash. 101
• Parties: BJMERLAND ET AL. v. ELEY ET AL.
• Court: Washington Supreme Court

45 P. 730

15 Wash. 101

BJMERLAND ET AL. v. ELEY ET AL.

Supreme Court of Washington

July 6, 1896

Appeal from superior court, Kitsap county; John C. Denney, Judge.

Action to quiet title by Martin Bjmerland and others against Amy Eley and others. There was a judgment for plaintiffs, and defendants appeal. Reversed.

William Martin, for appellants.

John F. Dore and Daniel T. Cross, for respondents.

DUNBAR J.

The land in dispute was the community property of Henry Eley and Lucy Eley. After the death of Lucy Eley, it was conveyed to the children of Henry Eley, viz. Amy Eley and John Eley, by their father. This deed was executed on the 13th day of January, 1883, with the express consideration of the love and affection the father had for the children, the appellants in this case. The deed was a quitclaim deed, and was recorded in the office of the auditor of Kitsap county on the 13th day of January, 1883. On the 4th day of the subsequent December Henry Eley conveyed the same land by warranty deed to Henry Nesbitt and James J. Hallan. This deed was duly recorded, and Nesbitt and Hallan subsequently conveyed the property by warranty deed to the respondents. The respondents took possession of the land several years ago, and, according to the testimony, have placed upon it about $5,000 worth of improvements. Shortly after the discovery by the respondents of the fact that the deed had been executed by Henry Eley to the appellants, this action was brought to quiet the respondents' title, and to enjoin appellants from asserting any claim whatever to said land, adversely to the respondents' interests. A demurrer was interposed to the complaint, to the effect that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled. The appellants answered, and a trial was had which resulted in the court's decreeing to the respondents the relief prayed for. From this judgment an appeal is taken to this court.

It is doubtful if the complaint in this action states facts sufficient to constitute a cause of action, the principal allegation being that the appellants Amy and John Eley are minors and children of Henry Eley, and that Henry Eley, on the 13th day of January, 1883, in said Kitsap county attempted to convey the property hereinbefore described without consideration, to said Amy and said John Eley, for the purpose of defrauding his (said Henry Eley's) creditors, and that there has not been any delivery of the said deed from said Henry Eley to the said Amy and John Eley. But, however this may be, upon the trial of the cause there was no attempt to introduce any testimony showing that Henry Eley had any creditors at the time of the execution of the deed; while the testimony shows conclusively, and in fact it is conceded, that the deed from Henry Eley to his children, the appellants here, was on record at the time of and prior to the purchase of the land by Hallan and Nesbitt, and at the time of the execution of the deed to them.

There are two principal contentions here by the respondents. One is that placing a deed on record does not work a delivery of the same, and the other is that, under the testimony in this case, it should be held that the sale to Hallan and Nesbitt was for the benefit of the heirs of the estate, and that that sale should now, in effect, be confirmed by this court although it was not made by order of the probate court. But however desirable it might be to make such a ruling in this particular case, where it unquestionably appears that the grantor, Henry Eley, has acted dishonestly, and in fact seems to have no comprehension of fair dealing, yet it will not do to lay down and establish a wrong principle of law to meet and obviate the hardships of a particular case; for Henry Eley is not a party to this case. The action is brought against the minors, and they cannot be estopped by any dishonest conduct or actions on the part of their father. The law at that time gave original jurisdiction of the sale of real estate for the benefit of the...