Brodsky v. Nelson

• Decision Date: 25 March 1910
• Citation: 107 P. 840,57 Wash. 671
• Parties: BRODSKY v. NELSON et al.
• Court: Washington Supreme Court

107 P. 840

57 Wash. 671

BRODSKY v. NELSON et al.

Supreme Court of Washington

March 25, 1910

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Harry Brodsky against Magnus Nelson and others. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded for new trial.

Judd &amp Olson, for appellant.

Revelle Revelle & Revelle, for respondents.

FULLERTON J.

In this action the appellant, claiming to be the owner of a tract of land described as the N. 1/2 of the N.W. 1/4 of the S.W. 1/4 of section 22, in township 22 N., of range 5 E., of the Willamette Meridian, in King county, Wash., sought to have canceled as a cloud upon his title a tax deed thereof issued by the county treasurer. In his complaint the appellant alleged his ownership of the property, that the respondents held a tax deed thereto, that he had tendered to them the full amount of the taxes levied by the taxing officers and paid by them to the county, and facts tending to show that the tax deed was void. Issue was taken on the complaint and a trial entered upon, in which the appellant sought to show his capacity to sue by deraigning his title from the government of the United States. He put in evidence a chain of mesne conveyances showing title from the government to one J. Wilfred Stockton, and then offered a quitclaim deed properly executed and acknowledged from Stockton to himself executed prior to the commencement of the action, in which the land conveyed was described as follows: 'The west half of the south of the southwest, section twenty-two,' etc. On this being rejected, he offered in connection therewith another quitclaim deed also duly executed and acknowledged which properly described the property, but of a date subsequent to the commencement of the action. The latter deed contained a recital to the effect that it was executed to make definite and certain the deed between the same parties above mentioned containing the defective description. This offer was also rejected, whereupon the appellant announced that he had no further record evidence to offer tending to prove his capacity to sue. The court thereupon directed a dismissal of the action on the ground that the appellant had no capacity to sue at the time of its commencement and entered a judgment accordingly.

The appellant undertakes to show by eliminating what he deems surplusage in the description that the deed first offered in evidence is sufficient to pass the legal title to the property sued for from Stockton to himself, but, without following his argument in detail, we think it wholly insufficient for that purpose. By striking out all that precedes the words 'section twenty-two.' it could be said that the deed contained a sufficient description of section 22, and, on the principle that the whole includes the part, that it conveyed to the appellant the fractional quarter section described in his complaint. But we know of no rule of construction that would permit this. Manifestly the grantors named in the deed intended to convey some fractional part of the section, not the whole of it, and, since that fractional part is not made certain, it must be held that the deed is insufficient to convey a legal title to any part of the section.

But we do not think the appellant's action should fail merely because he failed to show a legal title to the property. In this state, it is provided by statute that any person having a valid subsisting interest in real property may recover the same or have a judgment quieting or removing a cloud from his title, notwithstanding he may not hold the strict legal title. It is enough for that purpose that he have an equitable title to the property if the title he holds be the superior title. Ballinger's Code, §§ 5500, 5508 (Pierce's Code, §§ 1142, 1144). In this instance...