Healy v. Seward

• Decision Date: 05 December 1892
• Parties: HEALY v. SEWARD.
• Court: Washington Supreme Court

31 P. 874

5 Wash. 319

HEALY v. SEWARD.

Supreme Court of Washington

December 5, 1892

Appeal from superior court, Clark county; N.H. BLOOMFIELD, Judge.

Action by J. J. Healy against Orson M. Seward to cancel a deed as a cloud on complainant's title. From a judgment in defendant's favor, plaintiff appeals. Reversed.

Wiswall & McCredie, for appellant.

Metcalf & Metcalf, for respondent.

STILES J.

This was an equitable action, and the respondent moves to dismiss the appeal upon a number of grounds, none of which we find to be sufficient. We shall notice but one or two of them. The court below found in favor of the appellant as to the undivided one eighth of the land in controversy and against him as to the other seven eighths. The appeal was taken only from that part of the judgment which was against the appellant, and the respondent finds fault with his so doing. This is exactly what the law contemplates a party may and should do in every such case.

The cause was referred to a referee for trial. The referee reported the testimony taken by him, with the exhibits introduced, and his findings annexed. These were filed in the cause with the clerk, and the court re-examined the case upon the report, and, after setting aside the conclusions of law, rendered judgment. In preparing his statement of facts on appeal, the appellant did not file anew with the clerk a copy of the testimony and exhibits, but merely asked that they be made a part of the proposed statement. This makes a new case among the many which we have had to pass upon in connection with this matter of statements of fact. We are inclined to hold that the referee's report, when made and filed for the purpose of an appeal, is covered by Code Proc. § 1424. ^[1] It is duly certified by the judge who reviewed the case upon the report, and by the clerk of the court. It contained the whole case, and included the evidence submitted, taken in the form of depositions, by question and answer, and signed by each witness.

The other grounds of objection are of so general a character that they are not entitled to consideration. For example, the fifth ground is "because the bond on appeal is defective in not complying with the requirements of law." This points out no specific defect, and gives neither the respondent nor the court any notice of the particular in which it is alleged to be defective. Other grounds are stated with the same want of precision, and must be disregarded.

The parties to this appeal substantially agree as to the facts and the law of the case; their only disagreement is with regard to the application of the law to the facts.

In 1887, Ansil S. Marble and Louisa G. Marble, husband and wife were the owners of a certain tract of land in the city of Vancouver, Clark county, which in that year they conveyed to their eight children, by warranty deed. The respondent held a mortgage upon the land, which at the time this controversy arose, with interest, amounted to about $1,700. In April, 1891, respondent threatened to foreclose his mortgage unless it should be paid at once. After some negotiation, he and Marble agreed that Marble and wife should convey the land to the respondent, and receive therefor a satisfaction of the mortgage, and respondent's note for $300, due in one year, making the consideration for the conveyance $2,000. Marble and wife went to the office of one Gridley, who was a notary, on the 27th day of April, 1891, and executed a warranty deed for the land to respondent, intending to deliver it. But before the transaction was completed by the delivery of the deed, on one side, and the surrender of the mortgage and the execution and delivery of respondent's note for $300, on the other side, it was discovered by Gridley, who was also an abstracter of titles, that the Marbles had conveyed the land to their children by the deed of 1887. Thereupon the transaction stopped, and a new plan was adopted, viz. that the Marble children should be induced to convey to respondent for the same consideration before agreed upon. Gridley was employed to draft a deed for that purpose, which deed was started on its way to Oregon, and elsewhere, where the Marble children resided. It was understood that, as soon as the signatures of the children were obtained, the transaction should be completed. On the 18th of May, 1891, the deed had been executed by seven of the Marble children, and lay in the office of Gridley, awaiting execution by the eighth child, after which the respondent expected the transaction to be closed. But in the mean time appellant had obtained information that the property was for sale, and bargained with Marble, Sr., for the purchase of it at $2,500. He had been informed, also, that negotiations were pending between the Marbles and respondent for the transfer of the property to the latter. Proper deeds were executed by Marble and wife and seven of the children, and were delivered to appellant on the date last named, and were recorded by him; and he took possession of the property, and the whole thereof, as tenant in common with the eighth of the Marble children. One of the Marble children who had not joined in the deed to respondent now conveyed to appellant, so that the deed to respondent could not be completed. On the 19th day of May, respondent procured from Gridley the uncompleted deed of the Marble children, executed by seven of them, but not by the eighth, and placed it upon record. This action was brought by appellant to have the cloud made by this last deed upon his title removed, and he has also brought into court...