Rohrer v. Snyder

• Decision Date: 23 July 1902
• Parties: ROHRER et al. v. SNYDER et al.
• Court: Washington Supreme Court

69 P. 748

29 Wash. 199

ROHRER et al. v. SNYDER et al.

Supreme Court of Washington

July 23, 1902

Appeal from superior court, Spokane county; Geo. W. Belt, Judge.

Action to quiet title by George F. Rohrer and others against Eliza C. Snyder and others. From a decree for plaintiffs defendants appeal. Modified and affirmed.

Mark F. Mendenhall, for appellants.

J. M Wiestling and R. L. Edmiston, for respondents.

FULLERTON J.

This action involves the title to a tract of land in Spokane county, being certain lots and blocks in Snyder's addition to the city of Spokane. The facts out of which the controversy arises are, in substance, these: On October 3 1892, the respondents George F. Rohrer and John C. Morrow loaned to the appellants Eliza C. Snyder and Edward Snyder the sum of $5,000, taking to evidence and secure the same their promissory note for that sum, payable two years after date, and a mortgage upon certain real property situated in King county, in this state. On November 25, 1896, the respondents brought an action in the superior court of King county to recover upon the promissory note and to foreclose the mortgage. In that action they caused a writ of attachment to issue, and caused the same to be levied upon the real property in controversy here, which then stood upon the records of Spokane county in the name of the appellant Eliza C. Snyder. Personal service in this state was had upon Edward Snyder, who made default. Eliza C. Snyder appeared in the action, and contested it upon the merits making no contest, however, as to the validity of the attachment proceedings. The foreclosure action proceeded to trial, finally resulting in a personal judgment against both of the respondents for the principal and interest due upon the note, followed by a decree foreclosing the mortgage, and directing that the mortgaged property be sold, and further directing that, should any deficiency remain after selling the mortgaged property and applying the proceeds to the satisfaction of the amount adjudged to be due, the attached property be sold in satisfaction thereof. Following the terms of the judgment and decree, the mortgaged property was first sold, after which, there remaining a large deficiency, the attached property was sold. At this latter sale the respondents became the purchasers, and in due time received a sheriff's deed to the property. Shortly after the attachment had been levied, but prior to judgment in the foreclosure action, the appellant De Forest Snyder filed in the auditor's office for record two deeds executed by Eliza C. Snyder and Edward Snyder, purporting to convey to him a part of the property in question. The first of these deeds was dated and acknowledged on the 3d day of November, 1894, and the second on the 20th day of August, 1895. Each of these deeds is regular in form, and recites a money consideration. At about the time these deeds were filed for record the respondent Julia L. Snyder also filed for record a deed from Eliza C. Snyder and Edward Snyder to herself for all of the remainder of the property, for the recited consideration of 'ten dollars, and for services rendered, and other considerations.' This deed appears to have been executed and acknowledged on August 23, 1895. Subsequently Julia L. Snyder conveyed the property to E. Shipley Sweet, who, in turn, executed a power of sale to Edward Snyder, who subsequently, by virtue of such power of sale, reconveyed the property to Julia L. Snyder by deed dated December 4, 1899. This action was instituted by the respondents in 1899. In their complaint they asserted title to the property in virtue of the sheriff's deed and the proceedings leading up to its execution. They averred that the several deeds under which the respondents claimed title were made without consideration, and were fraudulent and void as against them, and a cloud upon their title. All of the appellants answered, putting in issue the material allegations of the complaint, and affirming the good faith of the conveyances attacked by the respondents. The appellants De Forest Snyder and Julia L. Snyder further answered by way of cross complaints, in which they claimed title to the several lots deeded to them, respectively, and sought to have the sheriff's deed under which the respondents claim canceled and set aside as a cloud upon their respective titles. The trial court found the several deeds from Eliza C. Snyder and Edward Snyder to De Forest Snyder, and the deeds from the same grantors to Julia, and Julia to E. Shipley Sweet, to be fraudulent and void, and entered a decree canceling and removing them as clouds upon the respondents' title. This appeal is from that decree.

The appellants first contend that the trial court erred in refusing to grant a jury trial; arguing in this connection that the action is one for possession of real property, and falls within the rule that one out of possession cannot maintain an action in the nature of a bill in equity to remove a cloud from title; citing Smith v. Wingard, 3 Wash. T. 291, 13 P. 717, and Spithill v. Jones, 3 Wash. St. 290, 28 P. 531. It was alleged in the complaint and established by the evidence, however, that the property was not in the actual possession of any one at the time this action was instituted. Where such conditions exist, an equitable action to try title or remove clouds from title can be maintained by reason of the express provision of the statute. 2 Ballinger's Ann. Codes & St. § 5521. It is where the real property is in the actual possession of an adverse claimant that the statute requires these questions to be litigated in an action brought to recover the possession. The action was also properly tried without the intervention of a jury. It is one purely equitable in its nature, and, as such, is to be tried as other equitable actions are tried under the uniform practice in his state.

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