Tucker v. Inglish, 19036.
| Decision Date | 26 June 1925 |
| Docket Number | 19036. |
| Parties | TUCKER v. INGLISH et ux. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, King County; Griffiths, Judge.
Action by Grace Meyer Tucker against M. H. Inglish and wife. Decree for defendants and plaintiff appeals. Reversed, with instructions.
Cole & Dolby and M. E. Sheldon, all of Seattle, and O. A. Tucker, of Chehalis, for appellant.
S. A Keenan and E. P. Donnelly, both of Seattle, for respondents.
This action was instituted by appellant, as one in equity, to annul a transfer and quiet title to certain real property in Seattle. The controversy grew out of an attempted exchange of the Seattle real estate, which was the separate property of appellant, for certain Lewis county real estate, which was the community property of respondents. Allegations of misrepresentation and fraud as to the character of a certain mortgage on the real estate of respondents were made by appellant, and it was also averred that the deed of appellant to the Seattle real estate belonging to her was never delivered or intended to be delivered by her to respondents, and that the possession thereof by respondents, and recording of the same by them in the records of King county, were fraudulent.
The answer of respondents, after denying the fraudulent representations alleged by appellant, alleged that they were the owners of the Seattle property and entitled to possession thereof, and to have their title quieted therein, and for other and further equitable relief which they prayed in their answer. All affirmative allegations in the answer of respondents were denied by the reply of appellant.
Prior to September 20, 1923, appellant was the owner of the house and lot in Seattle in controversy. Respondents were the owners of a ranch in Lewis county. Both properties were incumbered. Appellant advertised in a Seattle paper for an exchange for Lewis county property because of the fact that her husband, a lawyer, had theretofore removed to Chehalis Lewis county, and opened a law office there. Respondent, M H. Inglish, a real estate dealer, answered the advertisement on the same day it appeared, in person, at the home of appellant on the real estate in Seattle. He tendered a trade of the Lewis county farm of 40 acres for the Tucker property. He represented his property to be of the value of $6,000, against which he claimed there was a $3,000 'straight' mortgage, due 5 years after September 22, 1922, with interest at 7 per cent. per annum, payable semiannually; that there was a payment of $105 interest due September 22, 1923, which would make the stated payment due a few days after the offer. Appellant informed him that her husband was a lawyer, and was in Chehalis, Lewis county, and that she would communicate with him and have him examine the land and the title. Her husband looked at the land a few days later and telephoned appellant. Inglish induced Mrs. Tucker to go to Chehalis on September 19, and it was then arranged that he, appellant, and her husband should go out and look at the property in Lewis county early on the morning of September 20. This they did, and, after returning from viewing the land, went to Mr. Tucker's office, where a discussion took place concerning the trade, and Inglish exhibited a deed, which he said his wife had signed, and asked Mr. Tucker to have her acknowledge in Seattle over the telephone before Mr. Tucker or some other notary public. This Mr. Tucker refused to do, saying that such an acknowledgment would not be legal, and further objected to the form of the deed which is mentioned by the various parties here as an Oklahoma form of deed. It was decided, however, to have Mr. Tucker draw up deeds and that each party understood and agreed that he or she should retain his or her deed until Mr. Tucker had had an opportunity to examine the title to the Lewis county property, and until Mrs. Inglish should sign and acknowledge the deed of the Lewis county lands. Mr. Tucker signed and acknowledged his wife's deed to the Seattle property in order to make her deed further secure as against any community claim by him, with the understanding that appellant was to retain the deed until Tucker examined the title to the Lewis county property and advised her by telephone whether or not it was satisfactory. Mrs. Inglish was not in Chehalis, and it was understood and agreed that she was to execute and acknowledge the deed to the Lewis county property when appellant and Inglish returned to Seattle. Appellant kept possession of her deed to the Seattle property, and she and Inglish returned to Seattle on September 20. Respondent, the husband, had the deed, which he had acknowledged in Chehalis, to the Lewis county property, and which he was to have his wife sign and acknowledge in Seattle. The next morning, September 21, respondents with their daughter went to the residence of appellant in order, apparently, to hasten the consummation of the deal, and he demanded that appellant deliver her deed and accept his deed, saying, according to the testimony of respondent, the wife:
'We have the deed and Mrs. Inglish is here to sign it' (respondent's deed).
Appellant told them that she had received a telephone message from her husband, saying that there was a $500 note due or past due on the incumbrance of respondents on the Lewis county land, and she did not seem satisfied. She insisted upon waiting until the next Monday until she went down to Chehalis and looked into the matter herself. There is evidence, which is uncontradicted, that foreclosure proceedings had been commenced on the mortgage on the Lewis county property on September 15, 1923, of which fact Mr. Tucker advised appellant by telephone on the evening of September 20. There...
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