Potwin v. Blasher

• Decision Date: 06 August 1894
• Citation: 37 P. 710,9 Wash. 460
• Parties: POTWIN v. BLASHER ET AL.[1]
• Court: Washington Supreme Court

37 P. 710

9 Wash. 460

POTWIN v. BLASHER ET AL.^[1]

Supreme Court of Washington

August 6, 1894

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Mary B. Potwin against F. A. Blasher and others to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Reversed.

Parsons Corell & Parsons, for appellants.

Ira A Town and W. W. Likens, for respondent.

STILES J.

The sheriff of King county, on the 19th day of April, 1883 executed a tax deed of certain lands to John Murray, reciting in the deed that he had sold the land April 22, 1881. This deed was void on its face, having been executed three days before the time allowed for redemption. Murray quitclaimed the land to Fountain O. Chezum, March 12, 1886 and he sold it (reserving two acres) to appellant Blasher June 18, 1889, covenanting for a fee-simple title, and warranting against incumbrances. Blasher and wife executed a purchase-money mortgage to Chezum for $10,500, and this action was brought by respondent, claiming to be the assignee of the mortgage and unpaid notes to foreclose the lien. A purported quitclaim deed from John Moore, the owner, prior to the tax sale to Chezum, of date December 19, 1888, was immaterial, as it was conceded to have been a forgery; Moore, the grantor, having been for many years an inmate of the insane asylum, and another person having executed it. The respondent, although showing the legal title enabling her to sell, was not a purchaser for value, and was chargeable with all defenses maintainable against Chezum. The tax deed being void, and not having been supported by the limitation law of 1881 ( Ward v. Huggins, 7 Wash. 617, 32 P. 740, 1015, and 36 P. 285; Baer v. Choir, 7 Wash. 631, 32 P. 776, and 36 P. 286), the title wholly failed. But appellants had taken and retained possession, and this fact is respondent's justification of the judgment entered in the lower court. There were other material facts, however, which must be stated. In November, 1890, the guardian of John Moore commenced an action of ejectment against Chezum and purchasers through him. Chezum was notified to defend the action, and promised to do so, but defended only as to his own two acres. The other defendants thereupon procured their own counsel, and filed their answers. The common defense was the tax deed, based on the three-year statute of limitations. An error seems to have existed in the minds of all parties to the effect that the sale for taxes had taken place March 22, instead of April 22, 1881, which would have made the deed good on that point. The guardian, in his reply, denied all the allegations in regard to the tax deed, and sought to avoid the bar of the statute by pleading the insanity of his ward. Notwithstanding the denials, a demurrer was sustained to the reply, and the guardian was left with the right to appeal only. Upon this the parties entered into a compromise, under leave of the probate department of the superior court, whereby the guardian agreed to accept $2,000 for a conveyance of the interest of Moore's estate in the land held by the appellants,-two-thirds of the whole. Chezum procured a like compromise covering his two acres, and took a decree of the court quieting his title. This decree purported to cover the whole tract, but it did not have that effect, as his answer was a specific defense as to his two acres only. Fifteen thousand dollars was the price paid Chezum for the land, and the compromise made was an eminently prudent one for his grantees. The tax deed was void, and the fact of the true date of the sale must have come out on a trial of the cause. The allegation of a false date in the answers was all that saved them from failure on demurrer. The action of the court in sustaining the demurrer to the reply was certain to be reversed on appeal, since it contained a general and full denial of all the facts alleged concerning the tax deed. Thus the defendants had nothing to operate in favor of their retaining possession of any of the land but the fact that the guardian was without means belonging to the estate to prosecute an appeal. Chezum was bound, under the warranties of his deed, to successfully defend the title or make it good. He refused to do either, and left his grantees to make the best arrangement they could. Having done that, he is bound to reimburse them what they paid for the title and their necessary expenses in the litigation.

The only question is whether this outlay of the appellants can be set off against a complaint to foreclose the mortgage, by way of an affirmative defense. The covenant in the deed was that the grantor was the owner in fee simple of the premises. This was a covenant of seisin, and was broken the moment it was made. Neither the legal nor the equitable title was in the grantor, and the possession which he surrendered had nothing to support it. There was no actual eviction, but the suit commenced by the guardian was a constructive one which compelled appellants to pay for the title their grantor had warranted. When this suit was commenced the liability of Chezum was fixed and liquidated, and was a subsisting cause of action against him in favor of the principal defendants. Moreover, it arose out of the transaction constituting the foundation of the plaintiff's claim; and the principal action and the defense both arose on contract. These conditions brought the case clearly within the provisions of our code,-Code Proc. §§ 194, 195. Walker v. Wilson, 13 Wis. 584. It would be a strange commentary on the supposed advance made by the adoption of the modern codes containing such provisions as ours if all the matters of difference between a vendor and a purchaser of land, which have been advanced to the position of subsisting causes of action, could not be adjusted in one suit, brought to recover a balance of purchase money. Under any system, we think, this defense could be made. Rice v. Goddard, 14 Pick. 293; Jones, Mortg. § 1504; Wilsie, Forecl. Mortg. § 384. Where there has been no fraud and no eviction, either actual or constructive, the rule may be the other way ( Peters v. Bowman, 98 U.S. 56); but the case before us is not of that kind, and the appellants will not have the rights guarantied them by the law if they are compelled to submit to a sale...