Nixon v. Post

• Decision Date: 05 December 1895
• Citation: 13 Wash. 181,43 P. 23
• Parties: NIXON v. POST ET AL.
• Court: Washington Supreme Court

43 P. 23

13 Wash. 181

NIXON v. POST ET AL.

Supreme Court of Washington

December 5, 1895

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Cora E. Nixon, in her own right and as administratrix of the estate of Thomas L. Nixon, deceased, against Mary D. Post and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

W. S Relfe, J. S. Whitehouse, and Palmer & Palmer, for appellant.

Campbell & Powell and E. E. Rosling, for respondents.

HOYT C.J.

This action was brought by Cora E. Nixon, in her own right and as administratrix of the estate of her husband, Thomas L. Nixon to set aside and cancel two deeds, and to obtain a decree vesting in her the title to lots 19 and 20, in block 5, of Tacoma, the property described in said deeds. One of these deeds purported to have been made by plaintiff and her husband to the defendant Mary D. Post for the consideration of $6,000, and was dated February 8, 1889. The other was made by the defendant Mary D. Post to the defendant Philip V. Caesar, as trustee, to secure the payment of certain notes made by said Mary D. Post and her husband. The complaint contains other allegations relied upon to acquire possession of the property and damages for its detention, but this ground of relief received no attention at the hands of the lower court, and needs none here. The deed from Nixon and wife to Mary D. Post was not recorded until March 4, 1890. On April 16, 1891, Thomas L. Nixon, the husband of plaintiff died, and thereafter she was appointed and qualified as administratrix of his estate. This action was commenced December 12, 1892. The deeds, with an exception which will be hereafter noticed, were sufficient in form, and were duly acknowledged, and when introduced in evidence prima facie placed the title in the defendant Mary D. Post, subject to whatever interest was conveyed by the trust deed to Philip V Caesar. It is not contended that the deed to Philip V. Caesar was not sufficient for the purposes for which it was made, if by the deed to Mary D. Post from the plaintiff and her husband she acquired title as her separate property. The material inquiry is as to the force and effect of this latter deed. It is attacked by the plaintiff upon three grounds: (1) For the reason that it was never executed and acknowledged by the plaintiff; (2) that there was no consideration therefor; and (3) that, if any title passed by said deed, it did not so pass to the defendant Mary D. Post as her separate estate, but was in her name for the benefit of the community composed of herself and her husband. It will be seen from the above statement that the principal questions to be determined are those of fact, and little or no discussion of legal propositions will be necessary in arriving at a determination. The superior court, after full hearing, found as facts that the deed from the plaintiff and her husband was duly executed and delivered to the defendant Mary D. Post, and vested the title to the property in her as her separate estate. Upon this finding but one conclusion of law could be founded, and that was that the plaintiff was not entitled to any relief. Hence, if this finding is supported by the evidence, the judgment dismissing the action must be affirmed.

The deed having been found in the possession of the defendant Mary D. Post, and being in due from, prima facie established the fact of its regular execution and delivery. But this prima facie case was met by the testimony of the plaintiff to the effect that she never executed the deed, and, if this testimony is to be taken as true, it was, in our opinion sufficient to overcome the presumption above stated. But public policy will not allow a presumption of this kind to be overcome without clear and convincing proof, and testimony offered for that purpose must be carefully examined in the light of all the surrounding circumstances, and must be of a nature to convince the court of its reliability, before it can be given such force as will overturn a presumption upon which the stability of titles to real...