Matson v. Johnson

• Decision Date: 15 January 1908
• Citation: 48 Wash. 256,93 P. 324
• Parties: MATSON et al. v. JOHNSON et al.
• Court: Washington Supreme Court

93 P. 324

48 Wash. 256

MATSON et al. v. JOHNSON et al.

Supreme Court of Washington

January 15, 1908

Appeal from Superior Court, Kitsap County; John B. Yakey, Judge.

Action by Theodore Matson and others, by their guardian ad litem against Andrew J. Johnson and wife and Edward Johnson executor of the estate of F. Lanston, deceased, to set aside an executor's deed. Judgment for defendants, and plaintiffs appeal. Reversed.

S. S Langland, for appellants.

Willett & Willett, for respondents.

RUDKIN J. F.

Lanston died testate in Kitsap county, in this state on the 15th day of June, 1902. During his last illness, and a few days before his death, he called in one of his neighbors and directed him to prepare a deed and will in order that he might execute them. A deed was accordingly prepared, purporting to convey the property now in controversy to the three minors, who are plaintiffs in this action. The instrument was signed by the grantor in the presence of two witnesses, but was not acknowledged, because there was no officer present authorized by law to take the acknowledgment of deeds. The grantor stated to those present that he would appoint Mr. Johnson as his executor, and would instruct him to have the deed acknowledged and properly executed. The property described in the deed was of the value of about $100, and was the only real property owned by the grantor. At the time of the execution of this deed, and as part of the same transaction, Lanston executed a will making various small bequests, which are not material here. The following indorsement was made at the foot of the will by direction of the testator: 'Ed Johnson are hereby empowered to appear for the notary publick to have inlaid deed executed.' What disposition was made of the will and deed after their execution does not appear, but both instruments were delivered to the executor some time after Lanston's death, and were by him filed in the office of the clerk of the superior court, the will under date of June 18, and the deed on June 23, 1902. The deed was not filed for record in the auditor's office until February 1, 1906. At the time of the execution of the deed and will Lanston was the owner of the real property described in the deed and about $500 cash in bank. The will was admitted to probate, and Johnson appointed executor thereof. On the 25th day of November 1905, the real property now in controversy was conveyed to the defendants in this action by the executor of the will pursuant to an order of the superior court made and entered in the estate matter. The present action was instituted by the grantees named in the above deed, through their guardian ad litem, to quiet their title as against the purchasers at the executor's sale, and from a judgment in favor of the defendants the present appeal is prosecuted.

Three questions have been presented for the consideration of this court: (1) Was the Lanston deed ineffective for lack of an acknowledgment on the part of the grantor? (2) Was there a delivery of the deed? (3) Are the defendants bona fide purchasers?

First. An unacknowledged deed is good as between the parties in this state. Such an instrument conveyed at least an equitable title. Devlin on Deeds (2d Ed.) § 465; Edson v. Knox, 8 Wash. 642, 36 P. 698; Carson v. Thompson, 10 Wash. 295, 38 P. 1116; Bloomingdale v. Weil, 29 Wash. 634, 70 P. 94.

Second. Was there a...