Nichols v. De Britz
| Decision Date | 27 July 1934 |
| Docket Number | 25016. |
| Citation | 35 P.2d 29,178 Wash. 375 |
| Parties | NICHOLS v. DE BRITZ et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Roscoe R. Smith, Judge.
Action by William E. Nichols against Norma De Britz, Jerome E. Page and another. From an adverse judgment, Jerome E. Page appeals.
Reversed and remanded, with directions.
Palmer, Askren & Brethorst, of Seattle (B. E Lutterman, of Seattle, of counsel), for appellant.
Robert D. Hamlin and Carkeek, McDonald & Harris, all of Seattle, for respondents.
The plaintiff, by this action, sought to foreclose a real estate mortgage. The defendant Jerome E. Page resisted the foreclosure, and, by cross-complaint, sought to have the 'mortgage cancelled and his title to the property quieted.' The trial was to the court without a jury, and resulted in a judgment to the effect that the mortgage gave a superior right to that claimed by Page, and from this judgment Page appeals.
The facts essential to be stated are these: The property in question is lots 16 and 17, in block 2, of Rengstorff addition to the city of Seattle, and is improved with a dwelling house. This property was purchased by George De Britz and E. E. Simpson May 24, 1927, from King county; the property previously having been acquired by the county on a tax foreclosure. The title to the property was taken in the name of Norma De Britz, a daughter of George De Britz. The mortgage was dated May 24, 1927.
The respondent, for many years, had been well acquainted with Simpson, and on a number of occasions had purchased real estate mortgages through his office. Some time in March 1927, Simpson collected for the respondent, on what is referred to as the Barclay loan, the sum of $600. This money remained in the possession of Simpson until the latter part of May, 1927, at which time the respondent purchased from Simpson the mortgage in question, which was in the amount of $600. The mortgage and the note secured thereby were left in the possession of Simpson, and respondent's name was filled in as mortgagee some time between the date of its execution and prior to June 2d. The respondent never saw the mortgage until a week or two after the transaction, and never looked at the property until long thereafter relying, as he said, upon Simpson's furnishing him a good security for the loan.
For several months prior to May 24, 1927, the appellant had been in possession of the property, residing thereon. On that day De Britz called on him and notified him that the title was now in his daughter's name, and that he should thereafter pay the rents to him. June 1st, De Britz again called upon the appellant, and it was then agreed that the appellant would purchase the property on a real estate contract for the sum of $1,250, of which $150 was to be paid in cash and the balance in monthly installments. In pursuance of this agreement, and on the same day, De Britz prepared an earnest-money receipt, which he signed, and the appellant paid thereon $10. The appellant thereupon took the earnest-money receipt to his attorney, informing him that he intended to purchase the property and requesting an examination of the title. The attorney made an examination and a search of the records, and discovered that the title was in Norma De Britz by virtue of a tax foreclosure deed from King county, which deed was in the possession of Simpson, and which the latter agreed to record, and that no other instruments had been placed of record affecting the title to the property in question up to noon of June 2, 1927. At noon on that day, the appellant called on the attorney, and was informed that the title was in Norma De Britz, and that nothing had been placed of record adverse to it. The appellant then went to Simpson's office, and some time prior to 2 o'clock on that day signed a contract to purchase the property in accordance with the terms specified in the earnest-money receipt, and paid at that time $140, the balance of the down payment, and a copy of the contract was thereupon delivered to him. Nothing was said to the appellant at that time, or at any other time, about the mortgage held by the respondent, and he had no knowledge or notice thereof. Thereafter, and at 3:07 o'clock p. m. on the same day, June 2, 1927, Simpson filed for record in the auditor's office the treasurer's deed to Norma De Britz, and the mortgage from her to the respondent.
In November, 1931, Simpson was convicted of embezzlement. It was then for the first time that the situation developed, the respondent claiming a prior right under his mortgage, and the appellant claiming a superior right by reason of his contract of purchase and possession of the property. The appellant, prior to the time that Simpson's misdoing had become known, had paid regularly his monthly payments upon the contract, and there remained a balance due of approximately $240 at the time of the trial. He tendered the balance due and demanded a deed.
The question is: Which of the parties, respondent or appellant, has the superior right? The respondent says that his mortgage gives him that right. The appellant says that he has the superior right by reason of the fact that prior to the time the mortgage was filed for record, he had entered into a valid contract for the purchase of the property, and, as stated, was then, and for some time prior thereto, in possession thereof.
Rem. Comp. Stat. § 10596, provided that all deeds, mortgages, and assignments of mortgages shall be recorded in the office of the county auditor where the land is situated, and shall be valid as against bona fide purchasers 'from the date of their filing for record in said office. * * *' That statute was in effect at the time the transaction, with which we are here concerned, took place; the repealing act, chapter 278, p. 670, Laws of 1927, not having then become operative. Under that statute, the rights of a bona fide purchaser of real estate, if they attach prior to the filing for record of a deed or mortgage, are superior and will prevail.
In Price v. Northern Bond & Mortgage Co., 161 Wash. 690, 297 P. 786, 789, it was said: 'The language, '* * * shall be valid as against bona fide purchasers from the date of their filing, * * *' very clearly indicates that, if the rights of bona fide purchasers attach Before such filing, they must prevail.'
In Swanstrom v. Washington Trust Co., 41 Wash. 561, 83 P. 1112, it was held, in the case of two deeds from the same...
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OneWest Bank, FSB v. Erickson, 91283–1.
...from the prior owner was under a "duty to conduct a reasonably prudent inquiry as to the contents of such lease"); Nichols v. DeBritz, 178 Wash. 375, 380, 35 P.2d 29 (1934) (a party's actual possession of property constitutes " ‘notice to [purchasers or mortgagees] of whatsoever rights a pr......
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Miebach v. Colasurdo
...premises by a third person generally gives notice of whatever rights a reasonable inquiry would have revealed. See Nichols v. DeBritz, 178 Wash. 375, 380, 35 P.2d 29 (1934); Bendon v. Parfit, 74 Wash. 645, 648, 134 P. 185 (1913). But we also observe the reason for the rule that possession c......
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Peoples Nat. Bank of Washington v. Birney's Enterprises, Inc.
...the apparently ordinary situation was different. The unrecorded lease was binding between the lessor and lessee. Nichols v. DeBritz, 178 Wash. 375, 35 P.2d 29 (1934). Being unrecorded, however, pursuant to RCW 65.08.070 it was not binding on a bona fide purchaser. 3 The fundamental issue, t......
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Prudential Sav. & Loan Ass'n v. Stewart
...this state since Shelton v. Jones, 4 Wash. 692, 30 P. 1061, to Atkinson v. Melcher, 160 Wash. 94, 294 P. 567. See, also, Nichols v. DeBritz, 178 Wash. 375, 35 P.2d 29. decisions being contrary to the rule in most jurisdictions, it is difficult to see how appellants can be aided by them. Equ......