Carruthers v. Whitney

• Decision Date: 14 December 1909
• Citation: 56 Wash. 327,105 P. 831
• Parties: CARRUTHERS v. WHITNEY et ux.
• Court: Washington Supreme Court

105 P. 831

56 Wash. 327

CARRUTHERS v. WHITNEY et ux.

Supreme Court of Washington

December 14, 1909

Department 2. Appeal from Superior Court, Whatcom County; E. E. Hardin Judge.

Action by Christopher Carruthers against O. B. Whitney and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Merrick & Mills, for appellants.

Robert McMurchie, for respondent.

DUNBAR J.

This is an action to determine adverse claims to a tract of land in Whatcom county, Wash.; the action being brought by the respondent to quiet title to the same. Upon the trial of the case, the court found in favor of the plaintiff, judgment was entered in accordance with the prayer of the complaint, and appeal followed.

Both parties claim under one Emil Freiner, who died intestate in Snohomish county, Wash. The premises in controversy were concededly acquired by Emil Freiner under the homestead laws of the United States, patent therefor being issued to him September 28, 1898, and duly recorded. On November 4, 1903, Freiner executed and delivered to his wife Frances, a deed conveying the premises in controversy, which deed was duly recorded. After Freiner's death a petition for the probate of his estate was filed in the superior court of Snohomish county, and letters of administration were issued to Frances by said court. An inventory was made by the administratrix, and filed in the superior court of Snohomish county August 9, 1904. On September 28, 1904, the administratrix filed in such superior court a petition to sell real estate. The inventory included the lands in controversy. There was some question about the description of the land, which was afterwards cured, and it is now a conceded fact that all the lands in controversy were included in the order of sale, and were intended to have been included in the inventory and petition. On the 1st day of October 1904, the superior court issued its order to show cause why an order should not be granted to sell certain real estate at private sale, and on the 19th of October an order was made directing the giving of notice to creditors. Notice of sale of real estate was given, and the same was published. Thereafter the administratrix made her report of sale to the court, and the court fixed a date for hearing. Notice was given of such return day. Thereafter on the 24th day of November, 1905, an order was made confirming the sale of such real estate, being the real estate in controversy here, to one Daniel Neeson, who paid to the administratrix the sum of $650 for said land, and the administratrix executed and delivered certain deeds conveying the said land in statutory form. The court found the facts which we have briefly recited, that the administratrix had petitioned and prayed for authority to sell the real estate in controversy, that it was sold and confirmed, and that the deeds were made to Neeson as aforesaid; also found that the defendant O. B Whitney, subsequent to the conveyances aforesaid, obtained for a consideration of $5 a quitclaim deed from the said Frances Freiner to the land in controversy, which said quitclaim deed was duly filed in the auditor's office of Whatcom county; that at and prior to the taking of the quitclaim deed the defendant Whitney knew of the execution and delivery by said administratrix of the deeds aforesaid to the said Neeson, and of the subsequent conveyance to the Keith Investment Company by said Neeson. It appears in the proceedings that the Keith Investment Company sold the said land to the respondent. The court found that the said Frances Freiner never took under the deed from Emil Freiner, and never made any claim individually to said real estate, and that prior to the sale thereof by her as administratrix she had a conversation with Daniel Neeson, the purchaser at such sale, in which she represented to said Neeson that she was selling the whole of such real estate as the property of the estate of Emil Freiner, deceased.

Many exceptions are taken to the findings of the court by counsel for appellants, but there is only one pertinent proposition in this case, and that is whether the administratrix is estopped from raising the question of the validity of the sale to Neeson. It must be conceded that Whitney can take no better title to the land than his grantor, Mrs. Frances Freiner, had. The findings of the court, we think, are substantiated by the record in the case, most of which is documentary. It is the contention of the appellants that the status of this property as community property continued until, by reason of some act of the parties or by reason of the law, such status changed, and that such change occurred upon the execution and delivery of the deed from Emil Freiner to Frances Freiner; that the court had no jurisdiction to order the sale of the property which by public record appeared to be the property of Frances Freiner; that it is a fact which exists that gives the court jurisdiction to sell real estate, and not the representations made in the declaration of the administratrix through the inventory filed. Many cases are cited by counsel for appellants to the effect that an administrator who sells his own property as property of the decedent is not estopped from claiming title to his own property notwithstanding such sale, and no doubt there are many authorities to this effect as a general proposition.

The first case which is strongly relied upon by the appellants is Anthony v. Chapman, 65 Cal. 73, 2 P. 889. In that case the general doctrine contended for was no doubt announced in the syllabus, viz., that an executor who represents in his potition for letters testamentary that certain property belonged to the estate of the decedent, and files an inventory including such property, is not thereafter estopped from claiming the property as his own. But, upon an examination of the case itself, the syllabus may be considered as too broad. In that case the property did not go to sale. The plaintiff claimed under a conveyance from one Bird to Mary A. Smith. The defendants claimed that this conveyance was made to Mary A. Smith in trust for one J. P Smith, who, they claimed, paid the consideration therefor, and from whom they derived title. Mary A. Smith left a will appointing J. P. Smith her executor. He applied for letters testamentary, and in his petition represented that the property in...