Fay v. Best

• Decision Date: 08 December 1925
• Docket Number: 19346.
• Citation: 241 P. 354,137 Wash. 1
• Court: Washington Supreme Court
• Parties: FAY et ux. v. BEST et al.

241 P. 354

137 Wash. 1

FAY et ux. v. BEST et al.

No. 19346.

Supreme Court of Washington

December 8, 1925

Department 1.

Appeal from Superior Court, King County; Thos. M. Askren, Judge pro tem.

Ejectment by Irwin A. Fay and wife against Rebecca Best and husband. Judgment for defendants, and plaintiffs appeal. Affirmed.

Thos. R. Horner, of Seattle, for appellants.

Wright Froude, Allen & Hilen, of Seattle, for respondents.

HOLCOMB J.

This is an action in ejectment by appellants to recover a strip 3 feet wide and 120 feet long on the east side of lot 4, in block 58, Denny and Hoyt's addition to Seattle, of a value of about $75.

After some negotiations prior to April 29, 1918, on that day respondents and appellants consummated the deal whereby respondents were to purchase lot 5, block 58, in the above addition, for $2,000, of which $150 was paid in cash, and the residue was to be paid in installments. Two instruments were executed--one a real estate contract, and the other a deed in the usual form, which were placed in escrow in a bank to be delivered to the purchasers when the payments were completed. The 3-foot strip adjoined lot 5 on the west, being a strip on the east side of lot 4. It was inclosed by a fence on the west side of the 3-foot strip. Both the pleadings and the testimony show that appellants had legal title to the 3-foot strip for which this action is brought. Respondents, however interposed two affirmative equitable defenses.

The first was that appellant, the husband, had represented to respondents that the property to be sold and conveyed to them was 33 feet in width and 120 feet in length, and not 30 by 120, the platted size of the lots; that through an error in the description, and error and omission of the parties, and by error of the scrivener, the easterly 3 feet of lot 4 was omitted from the real estate contract and the deed, which was not known to respondents at the time, and which they first discovered about 15 months prior to the beginning of this action by appellants.

The second affirmative defense is by way of an alternative defense and cross-complaint, in the event reformation in the first defense and cross-complaint is refused, alleging that appellants were the owners of the real estate described in the complaint and in the answer, and that the tract of land was occupied and used in connection with the residence thereon 33 feet wide and 120 feet long; that appellants induced respondents to purchase the residence and land used in connection therewith for the consideration of $2,000, by representing that the tract of land to be conveyed with the house situated thereon was 33 feet wide and 120 feet long that respondents relied upon the representations by appellants as to the size of the lot, paid the full purchase price of $2,000 upon the agreed consideration that the lot was 33 feet wide by 120 feet long, but that appellants conveyed a tract of land which was only 30 feet by 120 feet, and refused to include the additional 3 feet, to respondents' damage in the sum of $500; that respondents first learned that the tract of land conveyed was only 30 feet by 120 feet about 15 months prior to the commencement of this action.

Upon conflicting evidence, as shown by the record, the trial court resolved the facts in favor of respondents. The record shows there is ample support in the testimony for the findings in favor of respondents. They introduced evidence to the effect that the width of the ground appellants were to sell respondents was 33 feet. All the lots in the block were 120 feet long. The testimony conflicting with that of appellants was that Mr. Fay showed the lot and house to respondents and told them that the lot was 3 feet wider than the other lots in the block, which were all 30 feet in width that it extended to the fence on the west; that the preceding year, when the house had been built on the lot in question, appellants had acquired the east 3 feet of lot 4, and inclosed it with lot 5 by a fence; he had built, and there was partly on the strip at the time of the purchase a wooden walk; the front steps at the street were on this 3-foot strip; the same vegetation was growing on the 3-foot strip as on the rest of the tract. No copy of the contract was given to respondents nor did they have the contract or deed in their possession, but these instruments were left at the bank to be delivered when the property was fully paid for. Shortly after...