Wilson v. Korte

• Citation: 91 Wash. 30,157 P. 47
• Decision Date: 28 April 1916
• Docket Number: 12799.
• Parties: WILSON v. KORTE et ux.
• Court: Washington Supreme Court

157 P. 47

91 Wash. 30

WILSON v. KORTE et ux.

No. 12799.

Supreme Court of Washington

April 28, 1916

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by A. V. Wilson against Frank Korte and wife. Judgment for defendants, and plaintiff appealed. On plaintiff's death pending appeal, Isabel Wilson, administratrix of his estate was substituted as appellant. Reversed, with directions.

P. F Quinn, of Spokane, for appellant.

John H. Pelletier, of Spokane, for respondents.

CHADWICK J.

Plaintiff's decedent, A. V. Wilson, contracted to sell to the defendant certain lots in the town of Medical Lake, Wash. The contract price was $450. One hundred dollars was paid in cash. The balance was to be paid annually, in sums of $100, $100, and $150. The contract provided that upon full payment of the contract price, the vendor would----

'* * * deliver a warranty deed, conveying good title free from all incumbrances as shown by a complete abstract of title certified by a responsible abstractor to be furnished by Wilson on or before 10 days and to be examined by the said purchaser within 10 days thereafter. If said abstract does not show such title, or cannot be made to do so within 10 days from notice of defects, then this agreement to be void and all payments hereunder shall be refunded.'

The first deferred installment was not paid by the vendee. This action was brought to recover the amount due. A. V. Wilson died pending the hearing of this appeal, and his administratrix has been substituted as appellant. It appears that after the first payment had been made, and defendant had gone into possession of the property, an abstract was furnished. Various objections were made, among others, as follows:

'There is nothing in the abstract to show whether an administrator was appointed for the estate of Nancy Ann Bishop, wife of W. H. Bishop. There is nothing in the abstract to show whether Percy W. Bishop and Fanny E. Bishop are the only heirs at law of Nancy Ann Bishop, deceased wife of W. H. Bishop. There is nothing to show that A. G. Bishop was regularly appointed guardian of the persons and estate of Percy G. and Fanny E. Bishop, minors. There is no release of the mortgage of Albert Burkhart to Gus Ereckson for $100, given December 3, 1888, on lot 22, block 3, Bishop's addition, recorded in Book T of Mortgages at page 280. There is nothing to show whether W. H. Bishop, on January 18, 1881, was married or a widower or divorced when he gave a warranty deed to James Benton for lots 22 and 23, in block 3 of Bishop's addition. In warranty deed from W. H. Bishop to James N. Glover dated March 16, 1885, for lots 20 and 21, in block 3, of Bishop's addition, Victor R. Bishop signs as wife of W. H. Bishop, and there is nothing to show whether Nancy Ann Bishop was his wife at that time or dead or divorced. The taxes for the year 1912 and 1913, amounting respectively to $6 and $10.74, are also unpaid.'

The plaintiff replied, asserting that title was good, the defense being that the lapse of time had cured all of the objections that had been made other than the payment of the taxes for 1912 and 1913, and that these had been paid pending the suit. Plaintiff further set up, and it is admitted as a fact, that certificates of delinquency had been issued by the county of Spokane for the taxes of 1890 and 1891; that the county had maintained a foreclosure proceeding; that plaintiff had become the purchaser at the sale; that the county had executed a good and sufficient deed; and that plaintiff was in possession at the time, and had maintained possession until he had put defendant in possession under the contract.

Neither the abstract nor a transcript of the tax proceeding, in so far as it affects the property which is the subject of this controversy, has been made a part of the record. We assume that the abstract will show the admitted facts, and have to inquire only as to the proper legal conclusion. We do not find it necessary to decide whether an abstract, showing a defect cured by the statute of limitations, or by adverse possession, meets the call of the contract to convey by 'a warranty deed, conveying good title free from all incumbrances as shown by a complete abstract of title certified by a responsible abstractor,' for we assume that the abstract shows a sufficient tax foreclosure proceeding and a title independent of a title which would ordinarily come within the definition of a title deducible of record. Under any aspect of the case, all that respondents can demand is a marketable title. The definition of a marketable title in most common use is that it is a title reasonably free of reasonable doubt. This definition was adopted by this court in Cummings v. Dolan, 52 Wash. 496. ^[1] See, also, Somers v. Pix, 75 Wash. 233-235, 134 P. 932, and cases cited. In the earlier case of Hoffman v. Titlow, 48 Wash. 80, 92 P. 888, the court held that a stipulation for a complete abstract of title entitled the purchaser to demand 'a title free from hostile claims and possible litigation.'

Real estate is a thing peculiarily subject to barter and sale, and a title may not be captiously rejected. All objections must be considered in the light of existing law and such legal inferences as may be drawn from the facts as disclosed by the abstract. Summy v....