Kempf v. Michelbach
Decision Date | 30 March 1921 |
Docket Number | 16170. |
Citation | 196 P. 661,115 Wash. 193 |
Court | Washington Supreme Court |
Parties | KEMPF v. MICHELBACH. |
Department 2.
Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.
Action to quiet title by G. Kempf against Minnie Michelbach. Judgment for defendant, and plaintiff appeals. Affirmed.
Cordiner & Cordiner, of Spokane, for appellant.
Freece & Pettijohn, of Davenport, for respondent.
Appellant as plaintiff below, brought this action to quiet title to certain real estate situated in Lincoln county, Wash. In his complaint he alleges that he is the owner of the real estate in question by fee-simple title; that he has been lawfully seized and possessed of the same for more than 10 years last past; that he is entitled to the possession thereof; and that the defendants claim some right, title, or interest therein adverse to him, which claims are made without right, and are subordinate and inferior to his title. The respondent, Minnie Michelbach, appeared separately and in her answer to the complaint pleaded ownership of a certain portion of the real estate in question, setting up that it had been conveyed to her by warranty deed executed May 23 1914, by Herman Zunker and Emma Zunker, husband and wife. She further alleged that appellant had no right, title, or interest in and to that portion of the real estate so deeded to her; that because of his conduct and actions he is now estopped from claiming any interest therein; and asked the court to quiet her title thereto as against the claim of the plaintiff.
The facts, as they appeared upon the trial below, are not greatly in dispute, and as admitted or fairly established by the testimony they are substantially as follows:
In 1911 the appellant, then a married man, purchased from Herman Zunker and his wife the real estate now in dispute, paying therefor the sum of $3,500, the full agreed purchase price. Mr. and Mrs. Zunker thereupon executed and delivered to appellant a deed to the property, duly acknowledged purporting to transfer to appellant the full title. At the time of this transaction appellant's wife was ill, and was later found to be insane, and committed to one of the state's hospitals. The deed was not recorded, but remained in appellant's possession. The respondent Minnie Michelbach, is a daughter of the appellant, and at the time of the subsequent deeding of this property to her by the Zunkers, was a widow, residing with her father, and she, with a younger sister, kept house for the father, and assisted him in operating the farm, which included the land now in dispute. For many years prior to her marriage respondent had lived with her father on the farm, working out of doors, performing all kinds of manual labor, and assisting him much as a man would have done. Appellant has two other children, a daughter who had been married for some years, and a son who no longer lived at home or formed a part of his immediate family. In May, 1914, appellant stated to respondent and to her younger sister that they had done more for him and their mother than the other two children, and he wanted them to have the 80 acres of land which is the subject of this controversy; that since the Zunker deed which he then held had not been placed of record, he would have Mr. and Mrs. Zunker execute a deed direct to the two daughters, conveying to each a half interest. Appellant did go to the Zunkers and advise them that his daughters were becoming dissatisfied at home, and it would be necessary for him to do something to keep them with him, and that it was his desire and intention to give them the 80 acres of land which had theretofore been deeded to him by the Zunkers. He thereupon requested the Zunkers to execute a new instrument of conveyance direct to the daughters, explaining that the former instrument had not been recorded and by superseding it with the new instrument he would save the expense of the additional transfer. At first Mr. and Mrs. Zunker were unwilling to execute another deed, but at appellant's request they met him and the daughters at the office of an attorney, where the matter was explained to them, a new deed to the daughters executed and delivered, and the former deed, running to appellant, was surrendered to the Zunkers, and they were advised that they might do with it as they wished, and were at liberty to destroy it. The Zunkers took the old deed, kept it until about the year 1919, when they destroyed it.
About the year 1915 appellant's wife died leaving a nonintervention will, by which, after giving nominal bequests to each of her four children, she devised all the rest of her property to the appellant. The will was admitted to probate in 1915 and at the conclusion of the proceedings the property was distributed as in the will provided. Respondent also offered testimony to show that it was agreed between appellant and his daughters that appellant should remain in possession of the real estate so deeded to them during his lifetime, or so long as he cared to farm it, provided that he would pay the taxes and keep up the property. The younger daughter later reconveyed her one-half interest in the property in dispute to appellant, and thereafter appellant requested respondent also to reconvey, which she refused to do, claiming that the property had been freely given to her and she intended to retain it. About this time appellant sold his farm lands, including in the contract of sale the 80 acres in question. The purchaser had the abstract examined and found that the record title to an undivided one-half interest in this 80-acre tract was in the respondent whereupon appellant requested his younger daughter to write to respondent, who in the meantime had remarried and removed to Montana, explaining to her the facts regarding the sale, asking her to sign a deed conveying her interest, and promising that as soon as things were straightened out she would get one of the purchaser's notes...
To continue reading
Request your trial