Hallin v. Bode, 18118

• Decision Date: 25 May 1961
• Docket Number: A,No. 35510,No. 18118,18118,35510
• Parties: David B. HALLIN, as Trustee in Bankruptcy in the matter of Tony Fernandez (also known as Anthony (Fernandez) and Marjorie Fernandez, husband and wife, as a marital community, in United States District Court for the Western District of Washington, Southern Division, in Bankruptcyppellant, v. Lottie BODE, a single woman, Respondent.
• Court: Washington Supreme Court

Page 280

58 Wn.2d 280

362 P.2d 242

David B. HALLIN, as Trustee in Bankruptcy in the matter of

Tony Fernandez (also known as Anthony (Fernandez) and

Marjorie Fernandez, husband and wife, as a marital

community, in United States District Court for the Western

District of Washington, Southern Division, in Bankruptcy No.

18118, Appellant,

v.

Lottie BODE, a single woman, Respondent.

No. 35510.

Supreme Court of Washington, Department 1.

May 25, 1961.

Frank L. Cathersal, Tacoma, Reuben Lenske, Portland, Or., for appellant.

Stanley J. Krause, Aberdeen, for respondent.

WEAVER, Judge.

Plaintiff (appellant), as trustee in bankruptcy of Tony Fernadez, commenced this action against defendant to quiet title to eight hundred forty acres of timber land in Pacific county. Plaintiff's claim is based upon a purported deed from defendant to Mr. Fernadez, dated February 21, 1955, filed for record on March 8, 1956, and recorded in book 168, page 289.

March 17, 1956, defendant recorded an affidavit in the office of the auditor of Pacific county, appearing in book 168, page 328, in which she stated:

'* * * That I never signed the instrument described on said page 289 of Vol. 168. That I never received any consideration from Tony Fernandez for any property whatever. * * *'

Plaintiff's counsel was accurate when he stated at the opening of the trial that

'* * * the pleadings in this case indicate a dispute over the execution of an instrument denominated Exhibit A in the Complaint. * * * The difference of opinion lies in the denial * * * that this transaction occurred.'

To set forth in detail the conflicting testimony of Mr. Fernandez, the notary public on the purported deed, and the defendant would serve no useful purpose.

The crux of this case is found in the findings of fact, which state:

'That after obtaining the signature of the defendant Lottie Bode, on blank pieces of paper as set forth in paragraphs V and VI above, and without the knowledge, consent and approval of Lottie Bode, Tony Fernandez, or some person in behalf of Tony Fernandez, typed the purported instrument as set forth in paragraph IV above. That the instrument was signed and sealed by the Notary Public after the insertion of the typing without the instrument being acknowledged by Lottie Bode as her free and voluntary act and deed.' Finding of Fact VII.

'* * * That said purported instrument was never executed or acknowledged or signed by defendant, Lottie Bode, nor was it delivered by Lottie Bode, or someone on her behalf, to Tony Fernandez, or someone on his behalf.' Finding of Fact IV.

The trial court concluded that the deed in question 'is a forgery and is void.'

This case is a striking example...