Double L. Properties, Inc. v. Crandall
| Decision Date | 24 March 1988 |
| Docket Number | No. 8413-2-III,8413-2-III |
| Citation | 751 P.2d 1208,51 Wn.App. 149 |
| Parties | DOUBLE L. PROPERTIES, INC., a Washington corporation; Eloise H. Lee and John Doe Lee, husband and wife; John E. Lynch and Dorothy Lynch, husband and wife; Willis Edward James and Euretta M. James, husband and wife; Don C. Woods and Jane Doe Woods, husband and wife, Bens Leasing Corporation, a California corporation; Bank of America, N.A.; the Wing on Bank Limited, a corporation under the laws of the Common Wealth of Hong Kong; Rainier National Bank, N.A.; State of Washington Employment Security Department; William J. Johnson and Jane Doe Johnson, husband and wife; Bernice A. Smith and John Doe Smith, husband and wife; Henbit, Ltd., Plaintiffs, v. Gary J. CRANDALL and Jane Doe Crandall, husband and wife, Appellants, Viewmont Properties, a general partnership, Allan Hardan and Constance M. Hardan, husband and wife; Donald R. Boyles and Virginia L. Boyles, husband and wife; James W. Sullivan and Kathleen G. Sullivan, husband and wife, Respondents and Cross Appellants, Richard E. Alquist and Janis R. Alquist, husband and wife; William J. Robinson and Jane Doe Robinson, husband and wife, Larry W. Purnell and Anne R.H. Purnell, husband and wife; also all other persons or parties unknown claiming any right, title, estate, lien or interest in the real estate described herein, Defendants. |
| Court | Washington Court of Appeals |
John Zeimantz, Spokane, for appellants.
Dennis Lynch, Witherspoon, Kelley, Davenport & Toole, Spokane, for respondents.
Gary Crandall appeals the superior court's refusal to order his vendor, Viewmont Properties, to pay him attorney fees as damages for Viewmont's alleged breach of the covenant of seisin. He incurred the fees during his successful defense of a claim by Double L Properties, Inc., to approximately 10 acres of a parcel sold by Viewmont to Mr. Crandall. Viewmont cross-appeals from the portion of the judgment denying it attorney fees. It relies on a provision in the real estate contract which provides that the prevailing party is entitled to fees in actions arising out of the contract.
The superior court found on stipulated facts that Mr. Crandall purchased the property by virtue of a real estate contract dated December 31, 1980. Additionally, a statutory warranty deed was placed in escrow. The real estate contract provided:
The Seller warrants and states that it is well seised of the property which is the subject of this contract and has good right, title and lawful authority to sell and convey the same. Further, the Seller herein has made a good and sufficient Deed conveying said property to the Buyers free and clear of all liens and encumbrances except for easements, restrictions and assessments of record.
* * *
In the event of any litigation arising out of this contract, the prevailing party shall be paid reasonable attorney fees and costs and disbursements relating thereto.
Double L Properties had constructed a fence along the south and west portions of Mr. Crandall's purchase, which encroached on approximately 10 acres. It was in existence, at least along the southern boundary, at the time the real estate contract was executed, and generally followed the path of an old fence then in disrepair which had been erected by parties unknown. Although both Viewmont and Mr. Crandall were aware of the fence at the time of the sale, neither were aware that the fence constituted an encroachment. A survey conducted in December 1981 revealed the encroachment.
On June 5, 1985, Double L brought an action against Mr. Crandall, claiming the property by virtue of adverse possession, estoppel and establishment of boundary by common grantor. Mr. Crandall tendered defense of the action to Viewmont, claiming the right to indemnification. When Viewmont declined to defend, Mr. Crandall joined it as a party and cross-claimed against it. Mr. Crandall also counterclaimed against Double L seeking ejectment and quiet title.
Mr. Crandall moved for summary judgment against Double L. The superior court, in a memorandum opinion, ruled that Double L had failed to establish adverse possession for the statutorily required time period. The parties then agreed to a stipulated order of dismissal of all the claims except for the cross claims between Mr. Crandall and Viewmont for indemnification for attorney fees and costs.
Up to the time of the stipulated dismissal, Mr. Crandall had expended attorney fees of $8,993 and costs of $756.99, three-quarters of which were spent defending against the Double L claim. Subsequent to the dismissal, he incurred another $935 in attorney fees pursuing his claim against Viewmont. Viewmont spent $3,420.65 in costs and fees attributable to defending against the Double L claim and against Mr. Crandall's cross claim for indemnification. The superior court denied Mr. Crandall's claim for fees and costs, concluding:
2. [Viewmont's] duty to defend [Mr. Crandall's] title is limited solely to lawful, valid claims ... which affect [his] title ... and [his] right to indemnification for defense costs ... arises only when a claim which would negate or affect that title is upheld. Since the claim of the plaintiff [Double L Properties] has been dismissed, no valid, lawful claim exists.
3. [Viewmont] was seised of the property conveyed as record owner of said property, and once seisin is established in the owner of land, it continues until adverse possession is established, thereby dislodging the claim of seisin.
4. Absent any overt act on the part of [Viewmont], which is the proximate cause of [Double L's] claim, the burden is upon [Mr. Crandall] to establish paramount title in [Double L] in order to prevail.
5. [Mr. Crandall] has failed to establish paramount title in [Double L] since [its] claims have been dismissed.
...
7. [Mr. Crandall] has failed to prove any breach of warranty in the real estate contract or in the warranty deed.
The court also denied Viewmont's claim for fees.
Mr. Crandall contends Viewmont is responsible for his fees and costs because, inter alia, it breached its warranty of seisin.
As noted above, Viewmont promised in the real estate contract that it was "well seised" of the property. It also executed a statutory warranty deed to the land and delivered it to the designated escrow. Under RCW 64.04.030, the grantor who executes such a deed warrants:
(1) That at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he warrants to the grantee ... the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same,
* * *
The first of these covenants, i.e., the covenant of ownership in fee simple, is the covenant of seisin, and is broken the moment it is made if there can be no seisin by the grantee. Whatcom Timber Co. v. Wright, 102 Wash. 566, 567, 173 P. 724 (1918); Wick v. Rea, 54 Wash. 424, 428, 103 P. 462 (1909).
"One can wade in the sea of adjudicated cases in order to discover what is meant by the word 'seisin' until he is totally submerged and lost." Lakelands, Inc. v. Chippewa & Flambeau Imp. Co., 237 Wis. 326, 295 N.W. 919, 926 (1941). The covenant of seisin has been described as a promise by the covenantor that is broken if he "has not the possession, the right of possession, and the complete legal title" of the conveyed property. 7 G. Thompson, Real Property § 3178, at 240 (1962 repl.) Possession may be either actual or constructive, i.e., although the covenantor is not in actual possession, "he claims the right of exclusive occupation, and no person is in occupation opposing his claim." 1 H. Tiffany, Real Property § 20, at 27 (3d ed. 1939).
The court in Lakelands, at 926, concluded that:
[A]s [a] matter of common sense, ... a covenant of seisin implies that the covenantor is in possession of the land conveyed and all of it, and that if anyone is actually in possession claiming adversely to the covenantor, the covenant of seisin is broken,
* * *
See also Mellenthin v. Brantman, 211 Minn. 336, 1 N.W.2d 141, 143 (1941). The court emphasized that a finding of breach of the covenant of seisin is not dependent on whether the adverse claim of the one actually in possession is lawful; an unlawful claim also works a disseisin. Lakelands, Inc. v. Chippewa & Flambeau Imp. Co., supra. See also Williams v. Azar, 47 So.2d 624 (Fla.1950); Nelson v. Growers Ford Tractor Co., 282 So.2d 664, 666 (Fla.Dist.Ct.App.1973); Lasswell Land & Lumber Co. v. Langdon, 204 S.W. 812, 813 (Mo.Ct.App.1918); and 20 Am.Jur.2d Covenants § 75, at 641 (1965). These same authorities hold that a grantee is entitled to recover from his grantor the necessary expenses of a suit prosecuted by the grantee to recover possession of property from an adverse claimant. See also Annot., Liability of Grantor in Deed with Covenants, for Expense of Grantee's Successful Litigation With Third Party, 105 A.L.R. 729, 737 (1936).
Viewmont argues that language in Balch v. Smith, 4 Wash. 497, 499, 30 P. 648 (1892), and Hoyt v. Rothe, 95 Wash. 369, 163 P. 925 (1917), indicates Washington subscribes to a different view.
The flaw in Viewmont's reliance on Balch is that Balch did not address the question of what constitutes a breach of the covenant of seisin; it was concerned with whether the wording of the statute then in effect governing the maintenance of actions for the recovery of real property required the plaintiff to allege actual possession of the premises within the statutory period. Balch held that the statute made no such requirement, stating, 4 Wash. at 499, 30 P. 648, that the rightful owner of real estate is presumed seised of the same, whether or not...
To continue reading
Request your trial
-
Friends of Columbia River v. U.S. Forest Service
... 546 F.Supp.2d 1088 ... FRIENDS OF the COLUMBIA RIVER GORGE, INC., an Oregon non-profit corporation, Plaintiff, ... UNITED STATES FOREST ... indicator that ANILCA is intended to apply only to landlocked properties," and that "ANILCA's legislative history supports [that] common sense ... seasonal use if such use would be normal for that dock), quoting Double L. Properties, Inc. v. Crandall, 51 Wash.App. 149, 158, 751 P.2d 1208 ... ...
-
Holmes Development, LLC v. Cook, 20000745.
... ... Ault, 2002 UT 33 at ¶ 15; SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 9, 28 ... 391, 388 S.E.2d 573, 578 (1990) ; Double L. Props., Inc. v. Crandall, 51 Wash. App. 149, 751 P.2d 1208, 1210-11 ... ...
- Haley v. Hume
-
GRANITE BEACH HOLDINGS, v. State
... ... Land Conservancy of Seattle and King County; and Manke Lumber Company, Inc., a Washington Corporation, Respondents ... No. 44902-8-I ... Court ... (Manke) hold properties with easement rights to cross State land; however, these easements did not ... The appellants' reliance on Double L. Props., Inc. v. Crandall, 51 Wash.App. 149, 751 P.2d 1208 (1988), is ... ...
-
Table of Cases
...966 (1986): 5.8(5) Donovick v. Seattle-First Nat'l Bank, 111 Wn.2d 413, 757 P.2d 1378 (1988): 21.11(6) Double L Props., Inc. v. Crandall, 51 Wn.App. 149, 751 P.2d 1208 (1988): 5.4(3) Douglas v. Jepson, 88 Wn.App. 342, 945 P.2d 244 (1997), review denied, 134 Wn.2d 1026 (1998): 3.2(3) Dowgial......
-
§5.4 - Covenants and Warranties of Title
...118 P. 623 (1911). Also, a breach of warranty is not dependent on whether the adverse claim is lawful. Double L Props., Inc. v. Crandall, 51 Wn.App. 149, 751 P.2d 1208 The grantee need not await foreclosure of a lien or entry of a judgment enforcing a superior title, however, but may take r......