Crowley v. Byrne

• Decision Date: 28 December 1912
• Citation: 71 Wash. 444,129 P. 113
• Parties: CROWLEY v. BYRNE et ux.
• Court: Washington Supreme Court

129 P. 113

71 Wash. 444

CROWLEY v. BYRNE et ux.

Supreme Court of Washington

December 28, 1912

Department 1. Appeal from Superior Court, Jefferson County; Lester Still, Judge.

Action by H. G. Crowley against L. R. Byrne and wife. Judgment for defendants, and plaintiff appeals. Reversed.

Edwin H. Flick, of Seattle, Allan H. Trumbull, of Port Townsend, and C. E. Hughes, for appellant.

L. R Byrne and A. J. Falknor, both of Seattle, for respondents.

PARKER J.

This is in substance an action to quiet title in plaintiff to an undivided one-half interest in a tract of unoccupied land in Jefferson county, and to obtain partition of the land between the plaintiff and the defendants; though counsel for the defendants seem to proceed upon the theory that it is strictly an action to remove a cloud from plaintiff's title to the land and to obtain partition thereof. The trial court sustained the defendants' demurrer to the plaintiff's third amended complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. Judgment of dismissal was thereupon rendered against him, from which he has appealed.

The controlling facts shown by the allegations of the complaint may be summarized as follows: On March 13, 1909, Sarah J Waits was the owner of the land here involved. On that date she entered into an option contract in writing with appellant for the sale of an undivided one-half interest in the land to him in consideration of the sum of $1, whereby she agreed to sell and convey to him an undivided one-half interest in the land at any time within two years thereafter, for the sum of $1,250. Thereafter on January 3, 1910, the contract was filed for record in the office of the auditor of Jefferson county. Thereafter on January 5, 1910, appellant paid to Sarah J Waits the full amount of the purchase price for the land, as agreed upon in the contract, but did not then receive a deed of conveyance from her. Thereafter on the same day Sarah J Waits executed and delivered to respondent L. R. Byrne a quitclaim deed purporting to convey to him the entire thact of land. Respondents claim the whole of the land, evidently under this deed. Before Byrne received this quitclaim deed and before he paid any part of the consideration thereof, he had actual knowledge of the existence of appellant's option contract to purchase an undivided one-half interest in the land, and also constructive knowledge thereof by reason of its prior recording, and also had then actual knowledge of the fact that appellant had paid to Sarah J. Waits the full amount of the purchase price of the land under his option contract. Thereafter on March 1, 1911, before the expiration of the two years specified in the contract for the exercising of appellant's option, Sarah J. Waits executed and delivered to him, in pursuance of the option contract, a warranty deed for an undivided half interest in the land. The land is unoccupied. Other facts appearing by the allegations of the complaint, touching an alleged oral agreement made by respondent L. R. Byrne with Sarah J. Waits at the time of receiving the quitclaim deed from her, by which he was to hold an undivided interest in the land in trust for appellant and convey it to him, we need not notice. Some conditions other than those we have noticed were contained in the contract, but they are not material here. We will for argument's sake regard the contract as a pure option. This view of the contract is the most favorable to respondents' contentions.

Our conclusions render it more appropriate to notice the contentions made by counsel for respondents against the sufficiency of this complaint to state a cause of action, than to notice the contentions of appellant to the contrary. Counsel for respondents, proceeding evidently upon the theory that this is strictly an action to remove a cloud only, consisting solely of the quitclaim deed given by Sarah J. Waits to respondent L. R. Ryrne, contend that, since there is no allegation of the recording of that deed, it is not such a cloud upon appellant's title as a court of equity will concern itself with removing. The decisions of the courts have heretofore given countenance to the view that there is a substantial distinction between an action to quiet title as against an asserted claim of title by another, and an action to remove a cloud consisting of some specific instrument; and that in the latter case a defendant may successfully defend upon the ground that the instrument constituting the alleged cloud is in fact not a cloud. This doctrine seems to be recognized in Lemon v. Waterman, 2 Wash. T. 485, 7 P. 899, and Watson v. Glover, 21 Wash. 677, 59 P. 516, though it seems to have been unnecessary to the decision of either of those cases. There is, however, room for arguing that this doctrine is materially weakened, if indeed not rendered obsolete in this state, by our decisions and statutes relating to actions for the trial of title to land.

However this may be, it is manifest here that this is not solely an action to remove a cloud created by the quitclaim deed of Sarah J. Waits to respondent upon appellant's title, but it is an action to quiet the title of appellant as against the claim of title made by respondents under that deed, as well as for partition. It seems clear to us that respondents cannot be heard to say that this quitclaim deed is not a cloud upon appellant's title and at the same time claim title thereunder, as the allegations of this complaint show.

It has been held both by the territorial court and by this court that a decree quieting title may be had notwithstanding the absolute invalidity of the claim or estate moved against. Lemon v. Waterman, 2 Wash. T. 485, 495, 7 P. 899; Watson v. Glover, 21 Wash. 677, 680, 59 P. 516; McGuinness v. Hargiss, 56 Wash. 162, 105 P. 233, 21 Ann. Cas. 220. It is true that the holdings in those cases had particular reference to actions prosecuted under section 809, Rem. & Bal. Code, and it is insisted by counsel for respondents that the allegations of this complaint are not sufficient to constitute a cause of action under that section. However, the facts pleaded are sufficient to constitute a cause of action under section 785, Rem. & Bal. Code, which provides: 'Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff's title.' And we think the doctrine announced in the cases cited is of equal force and applicability to actions under this section. Dolan v. Jones, 37 Wash. 176...