Standring v. Mooney , 14 Wash. 2d 220 ( 1942 )

I am of the view that the appellants have no right to maintain an action to quiet title against their unqualified and unconditional general warranty deed by which they conveyed the fee simple title to the corporation.

In 1 Cooley's Blackstone (4th ed.), p. 670, under the heading "Of Alienation By Deed," the author says:

". . . it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed."

In Fletcher v. Peck, 6 Cranch. (10 U.S.) 87, 3 L. Ed. 162, it was said:

"Yet the legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also. The legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power, which must find its vindication in a train of reasoning not often heard in courts of justice."

To this general rule, stated by the two authorities just mentioned, there are certain exceptions in this state. The first is: If the deed is void ab initio; second, if there is fraud; and, third, if the deed is intended as a mortgage. In those instances, oral testimony may be received which would modify or set aside the deed. In this case, there was no claim that the deed was void ab initio, that there was any fraud, or that the deed was intended as a mortgage.

In the case of Beverly v. Davis, 79 Wash. 537, 140 P. 696, it was held that an action to declare a deed a mortgage was grounded on fraud. It was there said:

"The action is grounded in fraud, and equity permits the fullest inquiry, to the end that the intention of the parties may be ascertained and enforced. The presumption is that the transaction is what it purports, and the one asserting that the written instrument masked the real transaction must prove his case by clear and convincing evidence. [Citing authorities.]"

There is no claim of fraud in the case now under consideration.

In the case of Richmond v. Morford, 4 Wash. 337, 30 P. 241, 31 P. 513, it was held that, where a grantor delivers a duly executed deed to the grantee, with the understanding that it should take effect upon the payment of certain liens and the execution of a mortgage by the grantee, the deed becomes operative at once and passes title to the grantee absolutely. It was there said:

"But in the case at bar, the deed, which was absolute upon its face and completely executed and required no further act on the part of the grantors to give it validity, passed into the possession and under the power and dominion of appellant, with the knowledge and consent of respondents, and must, therefore, be held to have been delivered. Dearmond v. Dearmond, 10 Ind. 191; 1 Devlin on Deeds, § 314. `The delivery of a deed is complete,' says Mr. Greenleaf, `when the grantor or obligor has parted with his dominion over it, with intent that it shall pass to the grantee or obligee, provided the latter assents to it, either by himself or his agent.' 2 Greenl. Ev., § 297."

The case of Jones-Thompson Inv. Co. v. Cascade Steel FoundryCo., 59 Wash. 601, 110 P. 417, was an action to procure the cancellation of a subscription made by the plaintiff to the capital stock of the defendant upon the organization of that corporation, and to set aside a conveyance of land by the plaintiff to the defendant in payment of the stock subscribed for. A deed was delivered, which was absolute in form, without any conditions or restrictions touching the matters involved in the transaction. That case is very like the one now before us, in that the deed there, as here, was absolute in form, without any conditions or restrictions. It was there held that the plaintiff could not prevail. In the opinion, it was said:

"Learned counsel for appellant seemed to make some claim to relief based upon the theory that respondent has forfeited its right to the land by having failed to fulfill conditions upon which the grant was made. In view of the form of the conveyance, we are unable to see how appellant's claim can be sustained upon any such theory. There being no conditions in the conveyance the failure to perform which would work a forfeiture of respondent's title, the question of forfeiture by breach of conditions we think can in no event be in the case. It is true, the original contract for the conveyance contemplated the erection of the plant on the land, but even that contract fixed no time for the completion of the plant, nor did it in any manner provide that the completion of the plant should be a condition precedent to the respondent being entitled to the deed. The only condition in that respect was the making of $5,000 worth of improvements on the land and paying the purchase price in the form of stock, which we have seen was done. All these preliminary matters were merged in the conveyance, which was the final consummation of the deal, and the question of forfeiture of respondent's title by reason of breach of conditions must be determined by the terms of the final conveyance, which we have seen contained no conditions whatever which could work a forfeiture."

Where a deed has been executed and delivered and a mortgage given to the grantor, an action to quiet title cannot be used for the purpose of avoiding the foreclosure of the mortgage. In the case of Womach v. Harding, 132 Wash. 184, 231 P. 949, it was said:

"There is no decision that we know of, under our code or any other code of civil procedure, that allows one to bring an action to quiet title, or in ejectment, and obtain the relief by foreclosure of a mortgage.

"Another statute, § 804, Rem. Comp. Stat. [P.C. § 7530], governs this situation, which reads:

"`A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without the foreclosure and sale according to law.'"

A similar observation was made in the case of Spedden v.Sykes, 51 Wash. 267, 98 P. 752, where it is said:

"Having accepted the mortgage, they are bound, in the absence of intervening rights, to rely upon it, for it carries with it a right of redemption in appellants which is valuable to them and cannot be defeated without proper proceedings and a day in court."

As I view the above cited cases from this court, they preclude the maintaining of an action by the appellants to quiet title as against their deed and thus avoid the foreclosure of the mortgage. I, therefore, dissent.

MILLARD and BLAKE, JJ., concur with MAIN, J.