Daly v. Rizzutto

• Decision Date: 16 June 1910
• Citation: 59 Wash. 62,109 P. 276
• Parties: DALY v. RIZZUTTO et ux.
• Court: Washington Supreme Court

109 P. 276

59 Wash. 62

DALY v. RIZZUTTO et ux.

Supreme Court of Washington

June 16, 1910

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Julia Daly against S. Rizzutto and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

Heber McHugh, John T. Casey, and Milo A. Root, for appellant.

Gill Hoyt & Frye and R. L. Blewett, for respondents.

CHADWICK J.

Plaintiff Julia Daly, and Joseph P. Daly were married at Chicago, Ill., in December, 1888. About May 15, 1903, Joseph P. Daly deserted his wife and family and came to Seattle. He did not make his whereabouts known to his wife, but in August, 1904, his wife found him to be working for the Northern Pacific Railway Company as a switchman. From that time on he corresponded with his children, and wrote a few letters to his wife evidently in answer to letters received from her with reference to the children and the home in Chicago which was under mortgage and about to be sold. The defendant Daly at all times seems to have desired that his children be sent to Seattle. He finally obtained transportation for them, but plaintiff returned it because she did not want the children to travel alone. He never sent plaintiff any money, although the testimony shows that he was in funds, having paid $650 for a team of horses. His wages were about $6 a day. Mrs. Daly came to Seattle in April or May, 1905, and stayed about one month, when she returned to Chicago. In August, 1907, she came to Seattle with her children, and has since resided there. Several of the employés in the Northern Pacific yard testified that they and others employed with Daly knew him to be a married man. On February 20, 1906, defendant Daly purchased from the Hill Tract Improvement Company a lot in the city of Seattle. On November 16, 1906, he conveyed this property, describing himself as a single and unmarried man. On the 17th day of November, 1906, his grantee sold and conveyed the property to the defendants, Rizzutto, who are now in possession of the property. Mrs. Daly was in Seattle about one year when, at the suggestion of others that her husband had bought property, she caused inquiry to be made which developed the facts as we have related them. Mrs. Daly brought this action to recover possession of the property, asserting it to be community property. Her husband refusing to join as a plaintiff was made a defendant. Upon a trial a nonsuit was granted, and plaintiff has appealed. We shall refer to defendants Rizzutto as respondents.

Appellant relies upon the cases of Dane v. Daniel, 23 Wash. 379, 63 P. 268, and Adams v. Black, 6 Wash. 528, 33 P. 1074, while respondents rely upon Sadler v. Niesz, 5 Wash. 182, 31 P. 630, 1030, and section 8771, Rem. & Bal. Code. In Dane v. Daniel, it was held that failure to assert a claim to community property held in the name of a husband did not estop the wife from claiming an interest therein, except as against such bona fide purchasers as purchased without knowledge of the existence of the marriage relation, or who could not by the exercise of reasonable diligence have obtained such knowledge. In Sadler v. Niesz, the wife was denied an interest in the property claimed to be community property. The parties had been married in 1863. They lived together for eight years, when the husband came to the Pacific Coast, taking up his residence in Kitsap county. Sadler's family remained in the East, and the fact that he was married was unknown to his associates and acquaintances. He represented himself to be a widower. In 1883 he acquired the lands which became the subject of the suit. In 1889 Mrs. Sadler appeared and asserted her claim to the land. While the result of that case is certain, the ground upon which the decision should properly be made to rest has been the subject of debate and controversy by the bar, and the occasion of much doubt on the part of the courts. The question has been put to this court in subsequent cases, but, it being possible to decide the particular case on other grounds, it has not been answered. It is sufficient to say that, up to this time, no absolute rule has been laid down by this court, but each case has been met by reference to its own facts.

The facts in this case in our judgment are wholly insufficient to put respondents or their grantors upon notice. The record title stood in the name of Joseph P. Daly. The community had never occupied the property, nor had there been any conveyances or instruments of record which would indicate any ownership other than that of Daly, and he had by the most solemn assurance represented and acknowledged himself to be a single man. It is not shown that respondents or their grantors knew that Daly was employed as a switchman in the Northern Pacific yards, and, even though the testimony showed this fact, it would not be enough to put them upon notice, for it in no way suggested to a stranger anything with reference to his domestic status, or gave the slightest clue for inquiry upon the subject-matter of the transfer. In this class of cases, and particularly so since the enactment of our statute, the term 'notice' must be taken in its full legal sense. It need not be actual, nor amount to full knowledge, but it should be such 'information from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make inquiry.' Bryant v. Booze, 55 Ga. 438; Phillips v. Reitz, 16 Kan. 396. It follows, then, that it is not enough to say that diligent inquiry would have led to a discovery, but it must be shown that the purchaser had, or should have had, knowledge of some fact or circumstance which would raise a duty to inquire. Implied notice arises from knowledge and not from ignorance, unless the law charges notice by registry or other token. McCallum v. Corn Products Co., 131 A.D. 617, 116 N.Y.S. 118. 'There must appear to be, in...