Whatcom Timber Co. v. Wright

• Decision Date: 17 June 1918
• Docket Number: 14692.
• Court: Washington Supreme Court
• Parties: WHATCOM TIMBER CO. v. WRIGHT.

173 P. 724

102 Wash. 566

WHATCOM TIMBER CO. v. WRIGHT.

No. 14692.

Supreme Court of Washington

June 17, 1918

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Whatcom Timber Company against Charles Wright. Judgment of dismissal, and plaintiff appeals. Affirmed.

Jesse A. Frye, of Seattle, for appellant.

Hartman & Hartman, of Seattle, for respondent.

HOLCOMB J.

Appellant brought this action to recover damages from respondent for breach of the covenants of warranty contained in a deed from respondent to appellant of certain land in Whatcom county. The amended complaint, after alleging corporate capacity, is as follows:

'(2) That on March 14, 1902, the defendant, in consideration of the sum of $6.50 dollars per acre, to him in hand paid by plaintiff, conveyed and granted to plaintiff by deed, together with other real estate located in Whatcom county, Wash., the following: [Description omitted]--and which said deed was on March 15, 1902, filed by the auditor of Whatcom county, Wash., and recorded in Volume 61 of Deeds p. 210 of the Records of said Whatcom county and in his said deed said defendant warranted to this plaintiff that he had good title in fee simple to said property, and would warrant and defend plaintiff in its possession of same.

'(3) That defendant had not, at the time of the execution and delivery of said deed, a good and sufficient title in fee simple to said premises, but same were owned by the United States of America and in the possession of the following persons, to wit, the first-described tract of land was in the possession of Nicholas Baker, and the second-described tract of land was in the possession of Charles Schwab, and that, by reason of the fact that defendant was not the owner of said lands, plaintiff was on the 6th day of October, 1910, ousted and dispossessed of the first-described tract of land by due course of law, and ousted and dispossessed of the second-described tract of land on the 12th day of April, 1912; and each of the owners of said tracts have, since said respective dates, held and still continue to hold plaintiff out of the possession of said lands.

'(4) That plaintiff has been compelled to pay and lay out costs and charges and counsel fees in defending title to said lands to the amount of $616.73.

'Wherefore plaintiff prays,' etc.

A demurrer, on the grounds that the complaint did not state facts sufficient to constitute a cause of action and that the action has not been commenced within the time limited by law, was sustained. The ruling in this respect, as well as the judgment of dismissal on the refusal of the appellant to plead further, is assigned as error, and they will be considered together.

The deed in question contained the three covenants of title in fee simple, of warranty, and of quiet possession. The first is a covenant of seisin, and was broken the moment it was made if there could be no seisin by grantee. Tingley v. Fairhaven Land Co., 9 Wash. 34, 36 P. 1098: Potwin v. Blasher, 9 Wash. 460, 37 P. 710; Decker v. Schulze, 11 Wash. 47, 39 P. 261, 27 L. R. A. 335, 48 Am. St. Rep. 858; Wick v. Rea, 54 Wash. 424, 103 P. 462.

The last two covenants are covenants in futuro, and the statute of limitations begins to run from the time they are broken. The precise time when these covenants were broken and when the statute...