Oliver v. McEachran

• Decision Date: 18 October 1928
• Docket Number: 21356.
• Citation: 271 P. 93,149 Wash. 433
• Parties: OLIVER et ux. v. McEACHRAN et al.
• Court: Washington Supreme Court

271 P. 93

149 Wash. 433

OLIVER et ux. v. McEACHRAN et al.

No. 21356.

Supreme Court of Washington

October 18, 1928

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Allen T. Oliver and wife against T. S. McEachran and others. Judgment for plaintiffs, and named defendant and his wife appeal. Affirmed.

Henderson Carnahan & Thompson, of Tacoma, for appellants.

J. W Quick, of Tacoma, for respondents.

TOLMAN J.

This is an action to establish an easement for a right of way to recover possession, and for damages suffered by exclusion therefrom. From a judgment favorable to the plaintiffs, the defendants McEachran and wife have appealed.

It appears that in 1917 defendants Schneider were the owners of lots 9 to 12, inclusive, in block 3, Eureka addition to Tacoma. These lots were each 25X120 feet, and taken together they made a tract of land fronting 100 feet on North Twenty-Eighth street, running thence back 120 feet to an alley, and bounded on the west by Puget Sound avenue. Schneider, conceiving that to be to his advantage disregarded the platted lot lines, and of the tract made three lots facing to the west on Puget Sound avenue, each lot 40 feet in width and 100 feet deep. The two outside lots so created had access at the rear, the southerly lot by means of North Twenty-Eighth street, which bounded it on the south and the northerly lot by the alley, which bounded it on the north; but the center 40-foot lot was cut off from rear access.

Schneider built a house on each 40-foot lot and offered the three properties for sale. The first one sold was the center lot now owned by the respondents. This lot was sold on contract to one Nelson, and though the contract was not recorded and could not be produced upon the trial, it is not disputed that it contained apt language to cover an easement, for the benefit of the center lot, over the east 8 feet of the north 40 feet, so as to make a driveway connecting the center property with the alley. Nelson took possession, but never obtained a deed. He parted with his interest to one Bennett, who likewise occupied the property as a home for some time. Bennett sold to respondent in August, 1919, at which time there was on the rear of this center lot a garage facing the 8-foot driveway; the driveway being well defined, as will hereinafter more fully appear. At the time of the purchase of Bennett's interest, the respondents secured a new contract from Schneider and wife direct to themselves, which clearly and in apt terms grants the easement over the disputed strip. This contract was not recorded. Respondents on November 19, 1921, obtained a warranty deed from the Schneiders conveying to them both the center 40-foot lot and the easement over the east 8 feet of the north 40 feet lying between their lot and the alley, which deed was filed for record November 13, 1921. This appears to be the first time the easement was made a matter of record.

In the meantime, and after the contract on the center lot had been made to Nelson, the Schneiders on January 2, 1918, made an executory contract to the defendant Jacobs covering the north 40-foot lot, in which contract appears this language:

'It is agreed and understood between all parties of this instrument that the east 8 feet of the above-described site may be used for driveway purposes by the owner of the property adjoining said site on the south thereof.'

This contract was not recorded until October 17, 1927. On September 1, 1919, Schneider and wife, in accordance with the terms of the contract last mentioned, conveyed the north 40 feet to Jacobs by warranty deed; but all reference to the easement was omitted from the deed. This deed was recorded September 23, 1919. On May 14, 1921, Jacobs and wife made an executory contract, by which they covenanted to convey the north 40 feet to the appellants, but in this contract no reference whatever was made to the easement; and on February 13, 1926, Jacobs and wife conveyed by warranty deed the north 40 feet to the appellants, still with no reservation or reference to the easement.

It is clear that, as between the Schneiders and Jacobs and wife, the omission to reserve the easement in the deed, as it was reserved in the contract, was entirely unintentional and a mistake. The testimony makes it clear that the Schneiders had no intention of deeding anything other than what was called for by the contract, and that the Jacobses had no thought or wish of obtaining anything but that which the contract entitled them to. Appellants do not dispute this fact, but seek to rely upon the record as it existed at the time they entered into the contract to purchase from Jacobs or, at the least, at the time they received their deed from Jacobs and wife.

The gist of appellant's contention is based upon the rule of Ashford v. Reese, 132 Wash. 649, 233 P. 29, that an executory contract to convey real estate vests no title either legal or equitable, in the grantee, and that therefore neither the contract to Nelson, the assignment to Bennett, nor the substituted contract from Schneider to respondents vested any title to the disputed strip in any of the grantees; the full and complete title remaining in Schneider, notwithstanding the execution and delivery of the contracts, until the deed without reservation by Schneider to Jacobs was made on September 1, 1919. Accepting that premise, the question then arises: Did the deed last mentioned convey the 8-foot strip to...