Hoover v. Chambers

• Decision Date: 08 January 1887
• Citation: 13 P. 547,3 Wash.Terr. 26
• Parties: HOOVER v. CHAMBERS.
• Court: Washington Supreme Court

13 P. 547

3 Wash.Terr. 26

HOOVER v. CHAMBERS.

Supreme Court of Territory of Washington

January 8, 1887

Porter & Robinson, for appellant.

Judson & Reed, for appellee.

GREENE, C.J.

This is an appeal from a final decree of the district court, rendered upon overruling a demurrer to an affirmative defense to a complaint in equity. Suit was brought to compel the defendant to comply with an alleged agreement of his to execute to the plaintiff a lease of a certain farm. To the allegations of the complaint the defendant, after denials pleaded "that the premises described in plaintiff's complaint is community property, belonging to the defendant and his wife, Elizabeth Chambers; that prior to making the lease to plaintiff, and at the time of making said lease, the plaintiff knew that defendant was a married man, living with his wife, and that the premises so described was community property." To this the defendant demurred. A single question is decisive of this demurrer, namely: Is a lease in this territory an incumbrance upon real estate? For, if it be such an incumbrance, then this case falls within the decision in Holyoke v. Jackson, 3 P. 841 and the district judge was right in overruling the demurrer but, if it be not such, then the affirmative matter of the answer was no defense, and the judgment based upon it is erroneous.

In Prescott v. Trueman, 4 Mass. 627 an action brought upon a covenant that certain land was free from incumbrances, Chief Justice PARSONS defines an incumbrance to be "every right to or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it," and he illustrates by instancing "an easement" and "a claim of dower." This definition is drawn from older cases and writers on the law of real property, and is of general acceptation. From it we are able to see that in England, under the common aaw, and since the statute of 32 Henry VIII., and in the condition of things there prevailing land being mostly accumulated into large holdings, and hence under lease, and the value of it slowly, if at all, appreciating, and dependent upon and estimated from its rent roll, a lease would not necessarily, nor even ordinarily, be deemed an incumbrance, but the contrary. Whether or not it was an incumbrance would there depend upon circumstances, and might, we should suppose, in a particular case, become a question of fact. Thus, a note to the fifth volume of Powell on Conveyances, 24, cited in Grice v. Scarborough, 2 Spear, 649, says that "leases outstanding at rack-rent are not incumbrances on large estates, because the income principally depends upon occupiers. Contra of a small estate, where there is but one tenant; there possession may be the main object." And the covenant formerly, and perhaps still, inserted in...