Woodman v. Fitzsimmons

Hovey, J. —Appellants are the record owners of a lot in the city of Spokane, of which respondent has possession, and this appeal is from a judgment in an [137] action of ejectment and to quiet title, wherein appellants were denied recovery. It appears from the testimony that respondent and E. O. Fitzsimmons were formerly husband and wife and were divorced in the year 1919. E. O. Fitzsimmons was then a real estate operator, but was considerably involved and there were of record several unsatisfied judgments which were community obligations, and in one of which respondent was made a party defendant and the judgment was of record against her. It is fair to assume from the evidence that the property in question and other property belonged to the community of respondent and her husband, but that because of their involved condition they took title to the property and dealt with it in the name of Henry Endlich, from whom E. C. Fitzsimmons had a power of attorney. E. C. Fitzsimmons also had a power of attorney from respondent, which was of record and unrevoked at the time of the transfer to appellants. At the time respondent obtained her divorce, the property in question was not mentioned in the divorce proceeding. The parties entered into a property settlement by the terms of which respondent was to receive the property described in this action, with other property, and the testimony shows that E. O. Fitzsimmons agreed to have proper conveyance made of this property as soon as he had placed a new loan upon it. This agreement he afterwards repudiated, and a suit was pending between respondent and her husband relative to this property at the time appellants acquired their title, and respondent placed of record in the office of the auditor a notice of lis pendens in which E. C. Fitzsimmons was the only defendant named. Eespondent has been in possession of the premises through tenants and has collected the rents ever since she entered into the agreement with her husband, and appellants [138] made no inquiry of the tenants as to whom they were paying the rent. The evidence shows quite clearly that appellants paid full value for the property and there is nothing to suggest that they were other than innocent purchasers. The property at all times stood in the name of Henry Endlich, and appellants received a warranty deed from Henry Endlich, by E. C. Fitzsimmons, his attorney in fact, and at the time the transaction was closed, they also obtained a quitclaim deed from E. C. Fitzsimmons and the respondent Ionia Fitzsimmons, by E. O. Fitzsimmons, her attorney in fact. The giving of this second deed seems to have been required out of excess of precaution, and testimony was introduced showing that it was required at the time a certificate of title insurance was issued for the purchasers, although this testimony was stricken by the trial court. The testimony also shows that respondent was at all times aware of the fraudulent condition under which title to the property was carried, and the deed which she proposed to take from her husband for the property in question was in fact made out to her brother to prevent the lien of the judgments attaching. Eespondent’s chief contention is that, as she was in possession through her tenants, appellants should have made inquiry, and upon discovery that rent was being-paid to her, they would be charged with notice of her interest in the property. We fail to see how this inquiry could have changed the situation. Eespondent, having of record the unrevoked power of attorney in favor of her husband, would not be in a position to complain of people who dealt with him innocently; but in this case it is not necessary to rely upon this feature of the case, as any interest that respondent had in this property was outside of the chain of title. Her notice [139] of lis pendens did not name the record owner of the property and conld not affect a bona fide purchaser from such record owner. Clerf v. Montgomery, 15 Wash. 483, 46 Pac. 1028, 48 Pac. 733; Johnson v. Irwin, 16 Wash. 652, 48 Pac. 345; Anders v. Bouska, 61 Wash. 393, 112 Pac. 523; Burwell v. Smith, 63 Wash. 1, 114 Pac. 876. Another reason that defeats respondent is the fact that she was a party to the transfer of this property to defraud the creditors of herself and her husband and it would be against public policy to enforce her claims. Boothe v. Bassett, 82 Wash. 95, 143 Pac. 449, and authorities cited. The judgment appealed from is reversed, and appellants will recover judgment for possession of the property and for its rental value since the date they demanded possession, and the judgment should further provide that the title of appellants be quieted as against any claims of the respondent. Pabkek, O. J., Holcomb, Mackintosh, and Main, JJ., concur.