Hoyt v. Rothe

• Decision Date: 24 March 1917
• Docket Number: 13326.
• Citation: 95 Wash. 369,163 P. 925
• Court: Washington Supreme Court
• Parties: HOYT et ux. v. ROTHE et ux.

163 P. 925

95 Wash. 369

HOYT et ux. v. ROTHE et ux.

No. 13326.

Supreme Court of Washington

March 24, 1917

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Suit by Frank Hoyt and wife against L. A. Rothe and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Davis &amp Heil, of Spokane, for appellants.

Mulligan & Bardsley, of Spokane, for respondents.

CHADWICK J.

Respondents were the record owners of a certain tract of land situate in Spokane county and described as follows, to it:

'Beginning at a point on the east line of the southeast quarter of section twenty-four (24), township twenty-seven (27) north, range forty-three (43), E. W. M 825 feet south of the east quarter corner of said section, running thence west 1,584 feet to a point; thence south 825 feet to a point; thence west 176 feet to a point; thence south 495 feet to a point; thence east 880 feet to a point; thence north 495 feet to a point; thence east 880 feet to a point on the east line of said section 984.5 feet north of the southeast corner thereof; thence north on the east line of said section 825 feet to the place of beginning--containing 40 acres.'

The land was incumbered by a first mortgage for $2,500 and a second mortgage for $6,400. Appellants owned the second mortgage. Interest and taxes had become delinquent, and respondents were unable to meet their payments. It was agreed between the parties that respondents would convey the property to the appellants in consideration of the assumption of the first mortgage, payment of the accumulated interest and taxes, and $450 in merchandise. At the time the trade was made the merchandise was in Des Moines, Iowa.

Appellants went into possession of the land, and, having caused a survey to be made by a deputy county engineer, refused to make the merchandise payment, alleging a breach of the covenants of seisin and general warranty in that there was a shortage in the acreage. The surveyor found that the area defined by the calls of the deed was 40 acres, and that the land included within the fence which surrounded the property was 35.40 acres.

Suit was brought by respondents for the value of the merchandise as for a conversion. Appellants answered, affirming the contract, and setting up a breach of the covenants of seisin and warranty, and the value of the land that was not included within the fence as a counterclaim. A jury was called and a trial had. After all the evidence was in, the court discharged the jury and entered a judgment in favor of respondents.

The excluded area consists of two classes of land; 0.57 of an acre is included in a roadway running along the east side of the property; the balance of the excluded area is within the inclosure of other parties.

It is contended that the 0.57 of an acre is a public easement; that this easement constitutes a breach of the covenant against incumbrances. While some of the states still follow the rule that, unless there is an express exception in the deed, a public highway falls within the covenant against incumbrances, the weight of authority is to the contrary. The broader view that a public highway is impliedly exempted from the effect of the covenant is well sustained, and conducive of better results. Unnecessary danger to established titles would follow a declaration of the principle contended for by appellants.

Whitbeck v. Cook, 15 Johns. (N. Y.) 483, 8 Am. Dec. 272, lays down the preferred rule:

'It must strike the mind with surprise that a person who purchases a farm through which a public road runs at the time of purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around on his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say that such an attempt is unjust and inequitable, and contrary to the universal understanding of both vendors and purchasers. If it could succeed, a floodgate of litigation would be opened, and for many years to come, this kind of action would abound. These are serious considerations; and this court ought if it can, consistently with law, to check the attempt in the bud.'

See, also, Hymes v. Esty, 133 N.Y. 342, 31 N.E. 105; Deacon v. Doyle, 75 Va. 258; Newmyer v. Roush, 21 Idaho, 106, 120 P. 464, Ann. Cas. 1913D, 433; First Unitarian Society v. Citizens' Savings & Trust Co., 162 Iowa, 389, 142 N.W. 87, 51 L. R. A. (N. S.) 428, Ann. Cas. 1916B, 575; Memmert v. McKeen, 112 Pa. 315, 4 A. 542; Sandum v. Johnson, 122 Minn. 368, 142 N.W. 878, 48 L. R. A. (N. S.) 619, Ann. Cas. 1914D, 1007; McLennan v. Prentice, 85 Wis. 427, 55 N.W. 764.

To show an eviction from the remaining land, appellants rely upon the fact of possession by third parties and the following conversation as detailed by the appellant husband:

'A. I told Mr. Blue that I had gone over the land and measured it, and I was of the opinion that it was short, and I showed him the stakes that I had placed there, and what I thought would be about where the lines should be, and he said: 'You are wrong.' He said: 'You are entirely wrong. I think the lines which exist are right.' I said: 'I would like to move my fence.' He said: 'I would object absolutely. I would not allow you to move the fence over only on one condition; if the entire section were surveyed, I would abide by a survey of the whole section, because I think there is enough land in the section where each would have his proper proportion by a survey. On this piece of land I would not consider recognizing other lines.''

The court held that the only way a paramount title can be proved is by the record, and that, having a deed sufficient in its calls, all appellants have to do is 'to go and take the land.' We can subscribe to the judgment of the court, but do not approve its reasoning. As a general thing, it may be said that the proper proof of title is by record. This is so in case the title relied on is a record title. All titles are not record titles. It is true also that the acceptance of a deed usually operates as a constructive possession of the property conveyed. Hence the rule that a grantee under a deed of general warranty cannot recover unless evicted by one having a paramount title. Maupin, Marketable Titles to Real Estate, § 146; 2 Devlin, Deeds, (2d Ed.) § 927; Rawle, Covenants, §§ 136-141; Morgan v. Henderson, 2 Wash. T. 367, 8 P. 491; Black v. Barto, 65 Wash. 502, 118 P. 623, Ann. Cas. 1913B, 846; Beebe v. Swartwout, 3 Gilman (Ill.) 162; Hamilton v. Cutts, 4 Mass. 348, 3 Am. Dec. 222; Ogden v. Ball, 40 Minn. 94, 41 N.W. 453; Shattuck v. Lamb, 65 N.Y. 499, 22 Am. Rep. 656.

It is likewise true that there are many cases which hold that the possession of one who is an intruder or a trespasser or one who disputes a boundary line is not such...