Timm v. Hart

Decision Date15 February 1962
Docket NumberNo. 35994,35994
Citation59 Wn.2d 538,368 P.2d 715
CourtWashington Supreme Court
PartiesHarold TIMM and Reo Timm, Respondents, v. Forrest E. HART and Rowena Hart, his wife, Appellants.

Dellwo, Rudolf & Grant, Spokane, for appellants.

Lowell D. Sperline, East Wenatchee, for respondents.

HILL, Judge.

We are here concerned with whether the plaintiffs, Harold and Reo Timm and their respective wives, or the defendants, Forrest E. Hart and his wife, have the right to possession of certain real property.

The defendants, in effect, seek by their cross complaint to have the deed, which they had given to the plaintiffs and under which the plaintiffs claim the right of possession, set aside. If the deed were set aside, the defendants--and not the plaintiffs--would have title to the property and the defendants would be rightfully in possession of the portion thereof from which the plaintiffs seek to oust them.

Briefly stated, the circumstances were that the plaintiffs had a mortgage on certain orchard property owned by the defendants, also a chattel mortgage on certain sprinkler equipment and personal property used in connection with the orchard. They had also acquired, by assignment, another chattel mortgage given by the defendants, which covered other equipment used in the orchard.

An action was commenced to foreclose the real-property mortgage and the chattel mortgage, which had been given to the plaintiffs. A decree of foreclosure was entered on the real-property mortgage; but before the sheriff's sale, the attorney for the plaintiffs discovered certain defects in the description of the property which, in his judgment, made a second foreclosure proceeding necessary. No sheriff's sale was held under the foreclosure decree.

To obviate the necessity of a second foreclosure, it was proposed that the defendants execute a deed to the plaintiffs; and that the defendants, in return, would be permitted to occupy a house on the mortgaged property for a year and have an option, during that year, to repurchase the property.

After some negotiations, an agreement was reached. The plaintiffs contend that the 'CONTRACT AND AGREEMENT,' executed by the defendants Sunday morning, February 7, 1959, together with other instruments implementing the contract, evidence the agreement reached by the parties. The defendants agree, with one very material exception.

Six documents were signed by the defendants the morning of February 7, 1959:

A. The 'CONTRACT AND AGREEMENT' (two typewritten pages), which purported to state the complete agreement between the plaintiffs and the defendants. (The other five documents were intended to implement it.) The contract provided inter alia: That the defendants were to be permitted to live in the house (which they were then occupying) on the mortgaged premises, rent free, until February 20, 1960, and they were to have an option to purchase the mortgaged real and personal property until that date. It was further provided that the plaintiffs were to pay the defendant husband the sum of $350 upon the execution of the agreement. (This last is the material exception to which we have referred; the defendants insist this was to have been $1,000.)

B. A 'DEED IN LIEU OF FORECLOSURE' (two typewritten pages), from the defendants to the plaintiffs, which covered the mortgaged real property. This deed recited that it was

'* * * an absolute conveyance of title, in effect as well as in form, and is not intended as a mortgage, trust conveyance, or security of any kind. The consideration therefor is the sum of ten and no/100 dollars ($10.00), and full release of all debts and obligations heretofore existing on account of that certain mortgage on said premises, recorded in Book 93 of Mortgages, at page 482, under Auditors file No. 121725, records of said County. This deed completely satisfies said mortgage indebtedness and terminates this mortgage and the note secured thereby, and any effect thereof in all respects.'

C. An 'AFFIDAVIT' (two typewritten pages) by the defendants which related to the deed (B, supra), and stated that it was executed by them in good faith as an absolute conveyance and not as a mortgage or trust conveyance, or security of any kind.

D. A 'BILL OF SALE' (one typewritten page) by the defendant Forrest E. Hart to the plaintiffs, which described the equipment and other personal property covered by the two chattel mortgages to which we have referred.

E. An 'OPTION TO PURCHASE' (three typewritten pages), whereby the plaintiffs gave to the defendants an option to purchase the real and personal property covered by the deed (B) and the bill of sale (D) at any time before February 20, 1960, for an amount to be computed as provided in the option.

F. A quitclaim deed (not in evidence) from the defendants to the plaintiffs, covering approximately three acres, which had been omitted from the mortgage and on which was located a well essential to the irrigation of the orchard, and which also included an easement for the use of another well.

These documents, together with three or four carbon copies clipped to each, were brought to the home of the defendants on the morning of February 7, 1959, by the attorney for the plaintiffs. They were admittedly signed at that time by the defendants under circumstances to which we will hereafter refer.

February 8, 1959, an error having been discovered in the description in the quitclaim deed (F), conveying the three-acre tract, the attorney for the plaintiffs prepared a substitute deed and 'voided' the one executed the preceding day. This substitute deed was taken to the home of the defendants and there signed by them.

Later that day, after the plaintiffs had executed the contract (A) and the option (E) and initialed the changes previously initialed by the defendants in the documents, it is claimed (by the plaintiffs) that copies of all documents and a check for $350 were delivered to the defendant husband. It is conceded that within a short time he returned them, or at least the check, and insisted that the 'deal was off' because the check was not for $1,000.

The defendants' version is that defendant husband never accepted either the documents or the check and that as soon as he saw that the check was only for $350 he announced that the 'deal was off.'

It is conceded also that he told the plaintiffs not to record the deeds.

The plaintiffs did record the deeds and have proceeded on the theory that the agreement was in effect and that they had title under the deeds and bill of sale. In March of 1960, they demanded possession of the premises occupied by the defendants; and in April, 1960, commenced this action to regain possession. As we have indicated, the defendants seek to vitiate the entire transaction because they insist that it had been agreed that they were to receive...

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7 cases
  • Ruzumna v. McGuinness, No. 54086-6-I (WA 2/22/2005)
    • United States
    • Washington Supreme Court
    • 22 Febrero 2005
    ...P.2d 37 (1987) (citing Nat'l Bank, 81 Wn.2d at 912-13); Gaines v. Jordan, 64 Wn.2d 661, 663, 393 P.2d 629 (1964) (citing Timm v. Hart, 59 Wn.2d 538, 368 P.2d 715 (1962); Lake Air, Inc. v. Duffy, 42 Wn.2d 478, 256 P.2d 301 11. Tjart v. Smith Barney, Inc., 107 Wn. App. 885, 897, 28 P.3d 823 (......
  • Watson v. State
    • United States
    • Washington Court of Appeals
    • 18 Abril 2017
    ... ... that he did not read it or that he was ignorant of its ... contents. Timm v. Hart, 59 Wn.2d 538, 542, 368 P.2d ... 715 (1962). A signed waiver is usually strong proof of the ... validity of that waiver. State v ... ...
  • Watson v. State
    • United States
    • Washington Court of Appeals
    • 18 Abril 2017
    ...to a document, will not be permitted to urge that he did not read it or that he was ignorant of its contents. Timm v. Hart, 59 Wn.2d 538, 542, 368 P.2d 715 (1962). A signed waiver is usually strong proof of the validity of that waiver. State v. Woods, 34 Wn. App. 750, 759, 665 P.2d 895 (198......
  • Barber v. Bankers Life & Cas. Co., 42056
    • United States
    • Washington Supreme Court
    • 17 Agosto 1972
    ...doctrine of an absolute duty to read what one signs. Perry v. Continental Ins. Co., 178 Wash. 24, 33 P.2d 661 (1934); Timm v. Hart, 59 Wash.2d 538, 368 P.2d 715 (1962); Hein v. Family Life Ins. Co., 60 Wash.2d 91, 376 P.2d 152 In the instant case, the insurance company entrusted its salesma......
  • Request a trial to view additional results

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