Mugaas v. Smith
Decision Date | 10 May 1949 |
Docket Number | 30745. |
Citation | 206 P.2d 332,33 Wn.2d 429 |
Court | Washington Supreme Court |
Parties | MUGAAS v. SMITH et ux. |
Department 1
Rehearing Denied June 20, 1949.
Action by Dora B. Mugaas against Delmar C. Smith and Bessie M Smith, husband and wife, to quiet title to certain land and to compel the defendants to remove therefrom all buildings and encroachments. From a judgment for plaintiff, the defendants appeal.
Judgment affirmed.
Appeal from Superior Court, Yakima County; Robert J. Willis, judge.
Skeel, McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellants.
Velikanje & Velikanje and John S. Moore, Jr., all of Yakima, for respondent.
This is an action by Dora B. Mugaas, a widow, to quiet title to a strip of land 135 feet in length and with a maximum width of 3 1/2 feet which she claims by adverse possession, and to compel Delmar C. Smith and his wife to remove therefrom any and all buildings and encroachments. From a judgment quieting title to the strip in Mrs. Mugaas and directing the removal of any and all buildings and encroachments, the Smiths appeal.
The appellants contend that the respondent has failed to establish adverse possession of the tract in question. The character of the respondent's possession over the statutory period is one of fact, and the trial court's finding in that regard is to be given great weight and will not be overturned unless this court is convinced that the evidence preponderates against that finding. We are of the opinion that the evidence was sufficient to sustain the trial court's findings, and the conclusions based thereon, that the respondent had acquired title to the strip in question by adverse possession. The evidence would have warranted a finding that her adverse possession dated back to 1910.
The only serious questions raised by this appeal are attributable to the fact that the fence which between 1910 and 1928 clearly marked the boundary line for which respondent contends, disappeared by a process of disintegration in the years which followed, and, when appellants purchased the property in 1941 by a legal description and with a record title which included the disputed strip, there was no fence and nothing to mark the dividing line between the property of appellants and respondent, or to indicate to the appellants that the respondent was claiming title to the strip in question.
We have on several occasions approved a statement which appears in Towles v. Hamilton, 94 Neb. 588 143 N.W. 935, 936, that:
'* * * It is elementary that, where the title has become fully vested by disseisin so long continued as to bar an action, it cannot be divested by parol abandonment or relinquishment or by verbal declarations of the disseizor, nor by any other act short of what would be required in a case where his title was by deed.'
See McInnis v. Day Lumber Co., 102 Wash. 38, 172 P. 844; King County v. Hagen, Wash., 194 P.2d 357.
The fact that the respondent had ceased to use the strip in question in such a way that her claim of adverse possession was apparent did not divest her of the title she had acquired.
Appellants' principal contention is that we have held, in a long line of cases, that a bona fide purchaser of real property may rely upon the record title. The cases cited by appellants construe our recording statute, Rem.Rev.Stat. §§ 10596-1, 10596-2, and involve contests between those relying upon the record title and those relying upon a prior unrecorded conveyance as conveyances are defined by Rem.Rev.Stat. § 10596-1. The holdings in the cases cited give effect to that provision of § 10596-2 which states that any unrecorded conveyance '* * * is void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration from the same vendor, his heirs or devisees, of the same real property or any portion thereof whose conveyance is first duly recorded. * * *'
Appellants cite no cases, and we have found none, supporting their contention that, under a recording statute such as Rem.Rev.Stat. §§ 10596-1, 10596-2, a conveyance of the record title to a bona fide purchaser will extinguish a title acquired by adverse possession. The trial judge, in his admirable memorandum decision, quoted the following from the opinion in Ridgeway v. Holiday, 59 Mo. 444, 454:
He quoted, also, the following from Schall v. Williams Valley R. Co., 35 Pa. 191, 204:
...
To continue reading
Request your trial-
Echols v. Olsen
... ... (See Mugaas v. Smith (1949), 33 Wash.2d 429, 206 P.2d 332; Ridgeway v. Holliday (1875), 59 Mo. 444, 454; Schall v. Williams Valley R.R. Co. (1860), 35 Pa. 191, ... ...
-
Eliason v. Production Credit Association of Aitkin
... ... 15 See, Dimond v. Manheim, 61 Minn. 178, 181, 63 N.W. 495, 497 ... 16 Finley v. Finley, 43 Wash.2d 755, 264 P.2d 246, 42 A.L.R.2d 1379; Mugaas v. Smith, 33 Wash.2d 429, 206 P.2d 332. 9 A.L.R.2d 846; City of Clatskanie v. McDonald, 85 Or. 670, 167 P. 560; Leahy v. Murray, 16 Ill.2d 350, 158 ... ...
-
Nickell v. Southview Homeowners Ass'n
...verbal declarations, or any other act short of what would be required had he acquired his title by deed. Mugaas v. Smith, 33 Wash.2d 429, 431, 206 P.2d 332 (1949) (quoting Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, 936 (1913)). A person who acquires title by adverse possession can conve......
-
Bryant v. Palmer Coking Coal Co.
...853, 676 P.2d 431 (1984)).5 El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 855, 376 P.2d 528 (1962) (citing Mugaas v. Smith, 33 Wash.2d 429, 206 P.2d 332, 9 A.L.R.2d 846 (1949); McInnis v. Day Lumber Co., 102 Wash. 38, 172 P. 844 (1918)).6 Peeples v. Port of Bellingham, 93 Wash.2d 766, 771, 61......
-
Table of Cases
...637, 584 P.2d 939 (1978), overruled by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984): 8.1(3)(c), 8.2(2)(e)(ii) Mugaas v. Smith, 33 Wn.2d 429, 206 P.2d 332 (1949): 3.6(9), 8.1(1) Muir v. Kane, 55 Wash. 131, 104 P. 153 (1909): 2.4(1)(b), 2.4(3)(a) Mukilteo Retirement Apts., L.L.C. v.......
-
§8.1 - Adverse Possession
...of record title to a bona fide purchaser. Crescent Harbor Water Co. v. Lyseng, 51 Wn.App. 337, 345, 753 P.2d 555 (1988); Mugaas v. Smith, 33 Wn.2d 429, 206 P.2d 332 In Halverson v. City of Bellevue, 41 Wn.App. 457, 704 P.2d 1232 (1985), the court applied the rule that by meeting the common-......
-
§3.6 - Constructive and Actual Notice
...acts and is consistent with the rule that titles obtained by adverse possession are not within the recording acts. Mugaas v. Smith, 33 Wn.2d 429, 206 P.2d 332 (1949). It should be noted that some courts have held that for possession to constitute actual notice, the possession must be relate......