Jackson v. Tatebo

• Decision Date: 11 January 1892
• Citation: 3 Wash. 456,28 P. 916
• Parties: JACKSON v. TATEBO.
• Court: Washington Supreme Court

28 P. 916

3 Wash. 456

JACKSON v. TATEBO.

Supreme Court of Washington

January 11, 1892

Appeal from superior court, Kitsap county; JOHN C. DENNY, Judge.

Suit by Charles Jackson against Joseph Tatebo to cancel a deed, and remove its cloud from plaintiff's title. Decree for plaintiff. Defendant appeals. Affirmed.

Tustin, Gearin & Crews, for appellant.

Strudwick & Peters and C. S. Preston, for respondent.

DUNBAR J.

This is an action brought by plaintiff to cancel a deed of conveyance made by plaintiff to defendant, and alleged to have been obtained from plaintiff by fraud. Plaintiff alleges that he is a native-born Indian; that he has severed his tribal relations, and adopted the customs of the whites; and that he was the owner in severalty and in possession of the lands in controversy. He claims title to said land by warranty deed from John Simmons bearing date August 19, 1875. The description of the land in said deed was as follows "The following described tract or parcel of land situate, lying, and being in the county of Kitsap and territory of Washington, and particularly bounded and described as follows, to-wit: Ten acres of land described as follows: From a certain stake to a certain stake, south of same, in lot one, (1,) section nineteen, (19,) of township twenty-four (24) north, of range two (2) east, of Willamette meridian." The deed dated the 23d day of June, 1890, from Jackson to Tatebo, and the one claimed by appellant to be fraudulent, contain the same description. It is also a warranty deed, and both deeds are admitted to be duly recorded in the proper recording office in Kitsap county.

It is urged by defendant that plaintiff cannot recover in this action, for the reason that there was no testimony showing that, at the beginning of this suit, he was the owner of any of this property; that the deed from John Simmons to plaintiff was too indefinite to convey any land; and, further, that no title was shown in Simmons. It cannot be gainsaid that the description in the deed from Simmons to plaintiff is so indefinite and incomplete that it fails to convey any particular tract or parcel of land, and under the general rule the plaintiff would not only be bound to show a conveyance from his grantor, but to prove title in his grantor; but the defendant is basing his rights in this case on a deed from the plaintiff and a quitclaim deed from the plaintiff's grantor, and claiming title from the same grantor. In such a case the rule is changed, and he will not be allowed to dispute his grantor's title. We think this doctrine is so firmly established that it cannot be successfully contradicted, and we cite in support of it: Sawyer v. Campbell, 130 Ill. 186, 22 N.E. 458; Fisher v. Moog, 39 F. Rep. 665; Bigelow, Estop. § 336; Curlee v. Smith, 91 N.C. 173. The general principle is well established that a party is not allowed to plead or to prove any matter inconsistent with the terms of his deed. Bigelow, Estop. § 336; Heard v. Hall, 16 Pick. 457. In Taylor v. Needham, 2 Taunt. 279, it is held that a lessee could not dispute the title of his lessor. "It is truly stated," says the court, "that in cases of a grant of feoffment a stranger may plead 'did not grant or did not enfeoff.' That plea denies, not only the existence, but the efficacy, of the supposed grant or feoffment. It brings in issue, therefore, the title of the grantor, as well as the operation of the deed, and that plea would be a proper plea to bring in issue the execution, construction, and efficacy of any deed of demise. Then the question comes whether the assignee of the lease may be allowed to controvert the title of the lessor when the lessee under whom he derives could not controvert the title of the lessor, so that the assignee could have a better right than he from whom he derives it. Exclusive of all the dicta, it would be a very odd thing in the law of any country if A. could take by any form of conveyance a better or greater right than he had who conveys it to him. It would be contrary to all principle. But it does not raise merely a general principle; for, if you look into all the books upon estoppel, you will find it laid down that parties and privies are estopped, and he who takes an estate under a deed is privy in estate, and therefore never can be in a better situation than he from whom he takes it." So in this case Tatebo's title cannot rise higher than its source, and its source is the title of Jackson and his grantor, and it is subservient to it. We are not able to find anything in Burton v. Le Roy, 5 Sawy. 510, either in the decision or in the dicta, that militates in the least against this doctrine. There the defendants were claiming under a common grantor with the plaintiff, but they were certainly not denying the title of the grantor, or putting it in issue. In that case, Olivera executed in favor of Jacquin Tico, who was his son-in-law, an instrument under which Tico claimed the land in question. Subsequently, Olivera conveyed the same land to other persons by other and sufficient deed, and the court found that the instrument to Tico was not a deed, and that it was not even a contract to convey, there being no consideration shown in the instrument; that at the best it was nothing but a voluntary executory contract, and could not even be enforced against Olivera, and much less against subsequent purchasers for a valuable consideration. The questions raised by appellant were not involved in that case.

In Sawyer v. Campbell, supra, which was a suit to quiet title, appellants Sawyer and Harding obtained from Horatio N. Heald and wife, who had previously sold their interest in the land to Clayton, a quitclaim deed; and the quitclaim deed then executed contained this language: "It being all the same property, described in the deed heretofore made by us to Charles W. Clayton, dated October 9, 1867, filed April 2d, 1870, and recorded in Book 573, page 326, of the Record of Deeds of Cook county, Illinois. This deed is made to clear away certain objections made to said last-named deed, or to the abstract thereof, and is made to confirm the title of said grant conveyed under said deed." And the court said: "The fact that Sawyer and Harding accepted this deed from Heald, and had it recorded, is an admission that they claim title under Clayton, and under the deed made by Heald to Clayton, and that this quitclaim deed was procured by them merely in confirmation of such title." So in this case the record shows that Jackson's alleged deed to Tatebo was executed on the 23d day of June, 1890, and filed for record on the 21st day of July, 1890, and that on the 23d day of July, 1890, Tatebo purchased from Simmons and wife (Jackson's grantors) a quitclaim deed more definitely describing the land which they had conveyed to Jackson 15 years before; and in said quitclaim deed, after the description of the land, is incorporated this language: "This deed is intended to correct and make certain the description of said land in a certain deed given by said John Simmons to one Charles Jackson, dated 19th day of August, 1875, and recorded in said Kitsap county on the 27th day of November, 1875." Under the authority cited above, Tatebo procured such quitclaim deed in confirmation of his title from Jackson; and it is not claimed by him that he had title from any other source. In Fisher v. Moog, supra, it was decided that defendants, who claimed under a deed from a debtor, are estopped to deny his title, and to allege that complainants were thus not injured by the conveyance. So in this instance, in a matter affecting only the interests of Jackson and Tatebo, Tatebo, claiming only under Jackson's title, cannot be held to question or deny it. "If a grantee assert no other right or title than that of the common grantor, he will be precluded from denying that his grantor had title when he conveyed." Bigelow, Estop. p. 346. In ejectment suits, where both plaintiff and defendant claim title from the common source, the plaintiff is only required to prove such source of title, as neither party will be permitted to dispute such title. Stafford v. Watson, 41 Ark. 17; McCready v. Lansdale, 58 Miss. 877; Griesler v. McKennon, 44 Ark. 517; Miller v. Herden, 64 Mo. 545; Horning v. Sweet, 27 Minn. 277, 6 N.W. 782; Whissenhunt v. Jones, 78 N.C. 361; Merchants' Bank v. Harrison, 39 Mo. 434; Roosevelt v. Hungate, 110 Ill. 599; Orton v. Noonan, 19 Wis. 370; Curlee v. Smith, 91 N.C. 173. There seems to be no reason for making a distinction in this regard between ejectments and suits to quiet title or remove clouds.

The contention of appellant that nothing is conveyed, and therefore plaintiff cannot be injured by the attempted conveyance, is not tenable. If this conveyance is held to be a good conveyance, Tatebo or his grantee could compel Jackson to cure the defective deed, and convey the land actually intended to be conveyed by the deed, and Jackson would be bound by his warranty to make good the title to the land and, if he did not convey, he has a right to a relief from his warranty, if nothing more. So far as the contention of appellant is concerned, that in cases brought to quiet title the plaintiff must allege and prove possession, there is no question but that at common law such was the requirement; and it is equally well settled that plaintiff may be relieved from such a requirement by statutory enactment. Holland v. Challen, 110 U.S. 24, 3 S.Ct. 495, and cases cited; Reynolds v. Bank, 112 U.S. 405, 5 S.Ct. 213; King v. Carpenter, 37 Mich. 363. Ormsby v. Barr, 22 Mich. 80. We think the provisions of our statute are substantially the same as the statutes construed in the cases cited above. It is asserted by appellant in his reply brief that in all the cases where it is held...