Fagan v. Walters

• Citation: 115 Wash. 454,197 P. 635
• Decision Date: 15 April 1921
• Docket Number: 16153.
• Court: United States State Supreme Court of Washington
• Parties: FAGAN et ux. v. WALTERS et al.

197 P. 635

115 Wash. 454

FAGAN et ux. v. WALTERS et al.

No. 16153.

Supreme Court of Washington

April 15, 1921

Department 2.

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

Action by Edmund H. Fagan and Mabel Fagan, his wife, against A. C Walters and others. From a judgment of dismissal following the granting of a nonsuit on both causes of action plaintiffs appeal. Affirmed as to one cause of action, and reversed as to the other, and case remanded.

Ryan &amp Desmond, of Seattle, for appellants.

Poe &amp Falknor and Judson F. Falknor, all of Seattle, for respondents.

TOLMAN, J.

Appellants as plaintiffs brought suit on two causes of action. At the close of their case in chief a nonsuit was granted on both causes of action, followed by judgment of dismissal, from which they appeal.

The first cause of action, as set forth in the complaint and as supported by appellant's evidence, is substantially as follows:

Respondents on the 2d day of October, 1916, for a valuable consideration by a statutory warranty deed, conveyed to appellants the following described real estate:

'Beginning at an initial point, which lies 1,111.68 feet south of and 933.7 feet east of the northwest corner of section 35, township 24 north, range 4 east; thence north 1 degree 8"' west 310.7 feet to the true point of beginning; thence east 230 feet; thence south 1 degree 8"' east 17.7 feet; thence east 500.86 feet to the meander line on Lake Washington; thence northerly along said meander line 90.7 feet north; thence west along the north boundary of land sold and conveyed by William D. Simpson and Annie Simpson, his wife, to Isabelle Gibb on January 4, 1889, and recroded in Volume 62 of Deeds, page 300, to a point which bears north 1 degree 8"' west of the true point of beginning; thence south 1 degree 8"' east 73 feet to the true point of beginning; also all shore lands adjoining and directly in front of the above-described property. All that portion of the above-described property lying south of a line running from a point which lies north 1 degree 8"' west 16 feet from the true point of beginning to a point east 270 feet.'

We have italicized certain portions of this description in order to direct attention to the matters in controversy.

The consideration for this deed was a trade or transfer by appellants of certain real estate owned by them. At the time of the transfer Fagan and White were well acquainted and had enjoyed previous business relations with each other, and each had confidence in the other. Abstracts were furnished continued down to date by the respective parties to the transfer, but they were not examined by either party; the trade being closed by the delivery of the deeds and abstracts to the respective properties at the same time. Prior to the execution of the deed Mr. Fagan had visited the property, saw some evidence that people had driven across a portion of it at some time more or less remote, but the ground was grown up to grass, and there was no particular evidence visible of a right of way in actual or recent use. The real estate broker who negotiated the trade acted for both parties thereto, and he advised Mr. Fagan that there had been an easement over that portion of the property described by the last italicized portion of the description quoted, but that this easement had expired or had been abandoned; and there was evidence that Mr. White told Mr. Fagan substantially the same thing, and Mr. Fagan was advised that upon acquiring title he would have a right to inclose and fence up the entire property. After receiving the deed and taking possession, Mr. Fagan erected a fence which shortly thereafter was torn down, and notices were posted advising him that there was an easement for a right of way over the 16-foot strip described as hereinbefore indicated, and referring to the volume and page of the records of King county where the deed reserving the easement was recorded. Appellants contend that respondents did not have an indefeasible estate in fee simple, and that the property was not free from all incumbrances, and that by reason of the covenants in the deed, as provided by statute, the grantors were bound to deliver an indefeasible title in fee simple; that the easement was a breach by reason of which appellants are damaged to the extent of $500.

It is conceded by respondents that an easement is an incumbrance, and the existence of such easement ordinarily constitutes such a breach of the covenants of a warranty deed as to entitle the grantee therein to maintain an action; but it is contended that the ambiguity and uncertainty of the final clause in the description quoted, together with the circumstances surrounding the transaction, were sufficient to put the grantees on notice of the former deeds in the chain of title shown in the abstract furnished them, which former deeds, they contend, explain and correct the ambiguity and uncertainty and make clear the intention of the grantors to except the easement from the warranty. It seems to be settled, however, that ordinarily knowledge on the part of a grantee at the time of the existence of an incumbrance upon the land or a defect in the grantor's title does not militate against the covenants in the deed, as such covenants warrant against known as well as unknown defects and incumbrances, and a grantee with knowledge of an incumbrance may rely upon the covenants in the deed for his protection. West Coast M. & I. Co. v. West Coast Imp. Co., 25 Wash. 627, 66 P. 97, 62 L. R. A. 763; Williams v. Hewitt, 57 Wash. 62, 106 P. 496, 135 Am. St. Rep. 971; McDonald v. Ward, 99 Wash. 354, 169 P. 851, L. R. A. 1918F, 662. And indeed the weight of authority seems to be to the effect that----

'It is a well-settled rule that knowledge by the grantee at the time of the conveyance of the existence of an incumbrance on the land or a defect in the grantor's title does not control the force and effect of the express covenants in the deed, or affect the question of breach.' 8 Am. & Eng. Enc. of Law. (2d Ed.) 86.

The trial court seems to have taken the view that the last clause of the description was meaningless in itself, and that it was appellant's duty to have submitted the deed and abstract to an attorney for examination, and that, if this had been done, the incumbrance would have been discovered, and the difficulty avoided; but, in view of the authorities just referred to, we think this is immaterial and beside the question. There was no mutual mistake involved. Mr. Fagan testified that he did not know of the existence of the easement, but, even though he did, he was told that it cut no figure, and that it had expired, and, since he did not agree to accept the title subject to the easement, he had a right to rely upon the covenants in the deed to protect him therefrom unless the language used in the description can be construed as excepting the easement from the warranty.

It will be observed that the last sentence of the description quoted from the deed, while complete in itself, is absolutely meaningless:

'All that portion of the above-described property lying south of a line running from a point which lies north 1 degree 8"' west 16 feet from the true point of beginning to a point east 270 feet.'

This is obviously a redescription of a portion of the property already described, which, as it stands, is mere surplusage, and, unless it can be construed so as to add thereto words which will make that portion of the property subject to the easement for right of way purposes, then it must be held to be of no effect. In discussing latent and patent ambiguities in 17 Cyc. p. 675, it is said:

'It was

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