State ex rel. Wirt v. Superior Court for Spokane County

• Decision Date: 08 September 1941
• Docket Number: 28438.
• Citation: 116 P.2d 752,10 Wn.2d 362
• Parties: STATE ex rel. WIRT et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.
• Court: Washington Supreme Court

116 P.2d 752

10 Wn.2d 362

STATE ex rel. WIRT et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.

No. 28438.

Supreme Court of Washington

September 8, 1941

Department 2.

Proceeding by the Hypotheek Land Company and others against Harry A Morrison and another, to condemn a private way of necessity across certain land, wherein Jeannette Wirt and Irene Morrison filed an amended complaint in intervention. To review an order dismissing the complaint in intervention, the State of Washington, on the relation of Jeannette Wirt and others, brings certiorari against the Superior Court for Spokane County, Charles W. Greenough, Judge, and others.

Order affirmed.

Appeal from Superior Court, Spokane County Charles W. Greenough, judge.

Glen E Cunningham, of Spokane, for relators.

John Huneke and Brown & Huneke, all of Spokane, for respondents.

MILLARD Justice.

Hypotheek Land Company and John Helm and wife, owners of land adjoining Harry A. Morrison's tract, filed a petition in the superior court for Spokane county to condemn a private way of necessity across the north end of a tract of land, which will be designated tract 'A,' of which defendants Harry A. Morrison and John Hancock Mutual Life Insurance Company were the only owners, encumbrancers or persons interested in the land 'so far as the same can be ascertained from the public records.' The trial court entered an order of necessity which is not challenged in these proceedings. Jeannette Wirt, in whose name is recorded title to a tract of land (which will be called tract 'B') adjoining tract 'A,' and Irene Morrison, in whose name is recorded title to another tract of land (which will be entitled 'C') adjoining tract 'A,' filed an amended complaint in intervention alleging that the three tracts had been owned by the intervenors and Harry A. Morrison in undivided one-third interests as tenants in common since the year 1934 under an oral agreement that legal title was to be held by each of the parties for the benefit of all; that pursuant to that oral agreement Harry A. Morrison has had charge of the farming operations of the entire tract (in which operations he has had the assistance of the intervenors) the net profits from which have been expended in making improvements upon the entire tract consisting of tracts 'A,' 'B' and 'C'; that January 18, 1941, the intervenors and defendant Harry A. Morrison acknowledged in writing that for more than three years last past each has been in her or his own separate right owner of an undivided one-third interest in the entire tract consisting of tracts 'A,' 'B' and 'C'; and that as to the three tracts, 'legal title to which stands in his or her name, he or she holds that land in trust for the three persons hereinBefore named in equal shares.' On the foregoing is predicated the intervenors' prayer for recovery of damages to the three parcels of land as one tract which it is alleged will be sustained as the result of a private way of necessity across the north end of one of the three parcels.

Plaintiffs' demurrer to the amended complaint in intervention on the ground that it did not state facts sufficient to constitute a cause of action was sustained. On refusal of intervenors to plead further the court entered an order dismissing their complaint. To review that order the cause is Before us by reason of a writ of certiorari having been issued.

Counsel for relators is not unmindful of the provisions of the eminent domain statute, Rem.Rev.Stat. § 921 et. seq., and the statutory, Rem.Rev.Stat. §§ 10550, 10551, requirement that all conveyances of real estate or of any interest therein shall be in writing. Counsel is also familiar with the rule oft reiterated by this court that the statute of frauds is an absolute provision that parol evidence is inadmissible to establish an express trust in land, and that an express trust can not be engrafted by parol on a deed or other conveyance which is absolute in form, but must be evidenced in writing.

The eminent domain statute, Rem.Rev.Stat. § 921, provides that a plaintiff who seeks condemnation of land for a private way of necessity shall set forth in his petition therefor 'the name of each and every owner, encumbrancer, or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records, * * * and praying that a jury be impaneled to ascertain and determine the compensation to be made in money * * * to such owner or owners, respectively, and to all tenants, encumbrancers, and others interested, for the taking or injuriously affecting such lands * * *.'

The statute, Rem.Rev.Stat. § 922, further provides that a notice, stating briefly the objects of the petition, and containing a description of the land sought to be appropriated, and stating the time and place when and where the petition will be presented to the court, shall be served on each and every person named in the petition 'as owner, encumbrancer, tenant, or otherwise interested therein.'

'At the time and place appointed for hearing said petition * * * if the court * * * shall have satisfactory proof that all parties interested in the land * * * described in said petition, have been duly served with said notice as above prescribed, and shall be further satisfied by competent proof that the contemplated use for which the land * * * sought to be appropriated * * * is for a private use for a private way of necessity, * * * and necessary for the purposes of such enterprise, the court * * * may make an order * * * directing that a jury be summoned * * * to ascertain the compensation which shall be made for the land, * * * unless a jury be waived as in other civil cases * * *.' Rem.Rev.Stat. § 925.

The pertinent provisions of the statute, that every conveyance of real estate, or any interest therein, shall be in writing, read as follows:

'Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed * * *.

'Every deed shall be in writing, signed by the party bound thereby, and acknowledged by the party Before some person authorized by this act to take acknowledgments of deeds.' Rem.Rev.Stat. §§ 10550, 10551.

Every conveyance of real property, or any interest therein, when acknowledged and certified as prescribed by the statute, may be placed of record in the office of the recording officer of the county where the property is situated. Rem.Rev.Stat. § 10596-2

In Pacheco v. Mello, 139 Wash. 566, 247 P. 927, 930, we said:

'It has become the settled law of this state, in harmony with the generally accepted rule in this country, that an express trust in real property cannot rest in parol, but must be evidenced in writing. Among our decisions holding to this view of the law we note particularly the following, because they have to do with claimed express trusts in favor of grantors as against their direct grantees, which is this case: Spaulding v. Collins, 51 Wash. 488, 99 P. 306; Kinney v. McCall, 57 Wash. 545, 107 P. 385; Kalinowski v. McNeny, 68 Wash. 681, 123 P. 1074; Arnold v. Hall, 72 Wash. 50, 129 P. 914, 44 L.R.A.,(N.S.) 349. In this last-cited case, Judge Gose, speaking for the court, said:

"Our statute, Rem. & Bal. Code, § 8745, provides: 'All conveyances of real estate or of any interest therein, and all contracts creating or evidencing any encumbrance upon real estate shall be by deed.' The cases cited settle the law in this state in this, that a resulting trust can, and that an express trust cannot, be proven by parol testimony, the latter being within the prohibition of the statute quoted."

See also, Olson v. Springer, 60 Wash. 77, 110 P. 807; Herrick v. Miller, 69 Wash. 456, 125 P. 974; Farrell v. Mentzer, 102 Wash. 629, 174 P. 482; Peterson v. Nichols, 110 Wash. 288, 188 P. 498; Rogers v. Joughin, 152...