Rosenbaum v. Evans

• Decision Date: 09 June 1911
• Citation: 63 Wash. 506,115 P. 1054
• Court: Washington Supreme Court
• Parties: ROSENBAUM et ux. v. EVANS et ux.

115 P. 1054

63 Wash. 506

ROSENBAUM et ux. v. EVANS et ux.

Supreme Court of Washington

June 9, 1911

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Albert Rosenbaum and wife against Thomas Evans and wife. Decree for plaintiffs, and defendants appeal. Affirmed.

Geo. D. Emery and W. D. Covington, for appellants.

H. A P. Myers and Walter L. Johnstone, for respondents.

GOSE J.

This is an action to reform a deed. There was a decree for the plaintiffs. The defendants have appealed.

In the month of April, 1910, the respondents were the owners of section 9 and the S.E. 1/4 of section 11, in township 132 N of range 103 W., of the Fifth Principal Meridian, in Bowman county, in the state of North Dakota. At the same time the appellants owned a tract of unplatted land outside the limits of the city of Seattle, in King county, containing about 2 1/2 acres. On the 4th day of April, 1910, the respondents executed and delivered to appellants a deed embracing the S.E. 1/4 of section 9 and 40 acres in section 11 of the land situated in North Dakota. In exchange for this conveyance, the appellants executed and delivered to the respondents a deed to the unplatted land. The respondent paid to the appellants $207, and assumed a mortgage upon the unplatted land of $1,500 principal and $97 interest, the agreed difference in value between the properties exchanged. The respondents contend that there was a mutual mistake in their deed to the appellants, whereby they conveyed to them the S.E. 1/4 of 9, instead of the S.W. 1/4. The allegation in the complaint is: 'That by mistake either of the scrivener who wrote the deed, or of the plaintiffs, the deed of the plaintiffs which was delivered to defendants about April 1, 1910, described the land in said section nine (9) as the southeast quarter (S. E. 1/4), when in truth and in fact it should have described it as the southwest quarter (S. W 1/4) of said section nine (9), as the same was intended by both grantors and grantees therein, and the defendants received said deed without calling attention to said mistake.' The appellants demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action.

The first objection urged against the sufficiency of the complaint is that there is no allegation that the mistake was mutual. While the word 'mutual' is not used, the substance of the allegation is that the respondents intended to convey, and the appellants intended to receive, the S.W. 1/4 of section 9, instead of the S.E. 1/4 as described in the deed. This, we think, is a sufficient allegation of a mutual mistake.

It is next insisted that the action is one affecting the title to real property, and that the court was without jurisdiction. This contention, we think, is also without merit. All the parties were residents of King county at the time of the commencement and trial of the case. In Wood v. Mastick, 2 Wash. T. 64, 3 P. 612, and Morgan v. Bell, 3 Wash. St. 554, 28 P. 925, 16 L. R. A. 614, this court held that a suit for the specific performance of a contract to convey real estate is a transitory one. In discussing the precise question in the Morgan Case, the court said that a decree of specific performance affects the parties to the action personally, but does not determine the title in the sense the word is used in our statute. In State ex rel. Scougale v. Superior Court, 55 Wash. 328, 104 P. 607, 133 Am. St. Rep. 1030, we held that an action to establish and enforce a trust in real property operates upon the party personally, and is transitory in its nature. A like view is announced in Sheppard v. Coeur d'Alene Lumber Company, 112 P. 932. In McGee v. Sweeney, 84 Cal. 100, 23 P. 1117, it was sought to have a deed to certain property in the state of Pennsylvania declared void and to have a reconveyance. To the plea of jurisdiction, the court said: 'It is well settled, however, that a court of equity has power to compel a reconveyance of property outside of its jurisdiction by reason of its control over the parties before it.' In Hayes v. O'Brien, 149 Ill. 403, 37 N.E. 73, 23 L. R. A. 555, the action was commenced in Cook county to set aside a conveyance of real estate on the ground of fraud, and for specific performance of a contract to convey land in Lake county. It was held that jurisdiction of the parties invests the court with power to proceed to final decree in all that class of cases where it is sought to compel 'the execution and cancellation' of deeds to land. It was said that, when the relief sought does not require the court to deal directly with 'the estate itself,' the proceeding does not affect real estate within the meaning of the statute. The same view is announced in Johnston v. Wadsworth, 24 Or. 494, 34 P. 13; Johnson v. Gibson, 116 Ill. 294, 6 N.E. 205; Massie v. Watts, 6 Cranch, 159, 3 L.Ed. 181; Gilliland v. Inabnit, 92 Iowa, 46, 60 N.W. 211; Pillow v. King, 55 Ark. 633, 18 S.W. 764; Frank v. Peyton, 82 Ky. 150; Brown v. Desmond, 100 Mass. 267; Lehmberg v. Biberstein, 51 Tex. 457; McQuerry v. Gilliland, 89 Ky. 434, 12 S.W. 1037, 7 L. R. A. 454. In Pillow v. King, the court said: 'In the case of Massie v. Watts, 6 Cranch, 159 , Chief Justice Marshall says: 'In a case of fraud or trust or of contract, the jurisdiction of the court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.' And in a very recent case Chief Justice Fuller said: 'The real estate was situated in Tennessee, and governed by the law of its situs; and while, by means of its power over the person of a party, a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not act directly upon the property, nor affect the title, but is made effectual through the coercion of the defendant, as, for instance, by directing a deed to be executed or canceled by or on behalf of the party.' Carpenter v. Strange, 141 U.S. 105 [11 S.Ct. 960, 35 L.Ed. 640].' In Frank v. Peyton the action was commenced in Kentucky, where all the parties resided, to compel the vendor of real estate situated in Illinois to execute a deed acknowledged according to the laws of the latter state. The vendor had theretofore executed a deed with a defective acknowledgment. The lower court sustained a demurrer to the jurisdiction. In treating the question on appeal, it was held that the proceeding acts upon the person, 'and the fact that property in another jurisdiction may be affected by it is no objection to the relief.' The appellants have referred to Seymour v. La Furgey, 47 Wash. 450, 92 P. 267, in support of their contention. That was an action to terminate a contract for the purchase and removal of standing timber. The court held that logging contracts of that character affect the title to land upon which the timber is growing, inasmuch as they contemplate that the purchaser shall take possession of the land and use it while cutting and removing the timber. McLeod v. Ellis, 2 Wash. St. 117, 26 P. 76, also cited by the appellants, has no application to the facts in this case.

It is urged that, in the absence of fraud, one who signs a written instrument without reading it or acquainting himself with its contents is estopped by his own negligence from maintaining a suit for its reformation. The respondents both testified that they did not read the deed before signing. We do not think the authorities cited by appellants to sustain this contention are applicable to the facts before us....