Gray v. Granger

• Decision Date: 11 February 1908
• Citation: 48 Wash. 442,93 P. 912
• Parties: GRAY v. GRANGER et ux.
• Court: Washington Supreme Court

93 P. 912

48 Wash. 442

GRAY v. GRANGER et ux.

Supreme Court of Washington

February 11, 1908

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by James B. Gray against H. H. Granger and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

E. T White, Cordiner & Cordiner, and John C. Kleber, for appellant.

Neal Sessions & Myers, for respondents.

DUNBAR J.

Epitomizing the pleadings in this case, the complaint alleged that at the time of the commencement of the action, and for more than 15 years immediately prior thereto, plaintiff had been in possession of certain lands described therein; that theretofore the plaintiff had purchased said lands from the Northern Pacific Railroad Company, receiving therefor a land contract, and that the said land contract was duly paid by the said plaintiff to the said railroad company as therein provided; that subsequently the plaintiff borrowed from the Big Bend National Bank of Davenport the sum of $610.24, and gave a note to said bank as evidence of such loan; that, in order to secure the payment of the said loan plaintiff, concurrently with the execution of said note assigned the said contract to the said bank for security, and as security only; that subsequently the bank procured from the railroad company, under and pursuant to the terms and provisions of the contract aforesaid, a deed to said land; that the said assignment of the said contract and the said deed made under said contract were given, accepted, and held by the said bank as security for said loan only, and that the real title to said land always did, and now does, vest in the plaintiff; that thereafter, to wit, on November 25, 1904, the said bank became insolvent, and one Eugene T. Wilson, as receiver, took charge of its assets, and thereafter, without foreclosing the security given it by the plaintiff and without any proceedings upon the note which had been renewed, to enforce the payment of the same and to condemn the said land for the payment of the same, conveyed the same to the defendants, and alleged that such sale was null and void, and that the claim of the defendants to the land in question was without any right whatever, and that the said defendants had no estate, right, title, or interest whatsoever in or to such land or premises, or any part thereof, and prayed judgment that the plaintiff be pronounced the real owner of the land; that the bank be held to have held such lands as security only for the payment of the note; that the deed by the said receiver to the defendants be declared null and void; that the said defendants be decreed to make, execute, and deliver to plaintiff a deed of conveyance to all of their right, title, and interest in said lands, or, if they fail to do so, that some person be appointed by the court to execute such deed, and in the meantime that the defendants be enjoined from selling, conveying, mortgaging, or otherwise interfering with said lands. The answer denied the material allegations of the complaint, and for an affirmative answer alleged that the defendants since the 14th day of October, 1905, had been the owner in fee simple of the property described in the complaint, and that since said time had been in the actual, open, and notorious possession thereof, and alleged the execution of the deed by the bank to the defendants; that the actual value of the property had been paid by the defendants for the land; that at the time of the purchase there were no improvements upon said premises; that the same were unfenced and unoccupied by plaintiff or any one else; that defendants prior to the purchase of said land went over said land, and examined the same, and ascertained that the same was not in the possession of any person whomsoever; that defendants nor either of them had any knowledge or information of any character from any source whatever of any claim on the part of plaintiff or any other person; that the land was purchased in good faith for a fair and reasonable consideration, relying upon the record title as shown by the county auditor's office of said county, and prayed that plaintiff take nothing by the action; that defendants be decreed to be the absolute owners of said land; that all clouds upon the title of defendants on said property by reason of any claims to said premises be removed, and that defendants' title to said property be purged of all claims whatever by plaintiff against said property. The reply denied the affirmative matter set up in the answer. When the case came on for trial, the plaintiff asked for a continuance, which was denied, and he then moved to dismiss this action, which was also denied by the court. The case then proceeded to trial; both the plaintiff and defendants offering testimony. Judgment was rendered in favor of the defendant. The plaintiff appeals from such judgment, assigning that the court erred...