
    [No. 17987.
    Department One.
    August 2, 1923.)
    R. Petkovits, Appellant, v. George T. Huessy et al., Respondents.
    
    Evidence (143) — Paeoi,—Contradicting Written Instruments. Parol evidence is inadmissible to contradict tbe recital in a deed that it was given for the purpose of “cancelling and fully satisfying” a certain written trust agreement, the record of which was referred to in the deed, which was plain and unambiguous.
    App.eal from a judgment of the superior court for King county, Truax, J., entered November 17, 1922, discharging a jury and dismissing, on the merits, an action to recover the proceeds of real estate, under a trust agreement.
    Affirmed.
    
      
      H. E. Foster, for appellant.
    
      Edward Von Tobel and Frank A. Steele, for respondents.
    
      
       Reported in 217 Pac. 41.
    
   Bridges, J.

— The basis of tbe plaintiff’s suit was a written trust agreement, executed by bimself and Ferdinand Hocbbrunn, of Seattle, dated February 21, 1903. Tbe substance of tbis agreement was that Hochbrunn held tbe legal title to certain real estate in King county, Washington, in trust for tbe plaintiff, and that, when tbe property should be sold, tbe plaintiff, out of tbe proceeds of tbe sale, should- first receive $21,000, tbe purchase price paid by him, and that Hocbbrunn should next be reimbursed for any sums be might have paid for taxes, etc., and tbe balance should be equally divided between them. After alleging tbe trust agreement, tbe complaint states that thereafter Hocbbrunn, without tbe knowledge or consent of tbe plaintiff, sold tbe property for fifty thousand dollars, and converted all of tbe proceeds to bis own use; that such sale was made in December, 1916, and that tbe plaintiff did not learn of such sale until after Hocbbrunn’s death in October, 1921. It is further alleged that tbe plaintiff duly filed bis claim with tbe executor of tbe Hocbbrunn estate for tbe sum of $35,500, and that it was disallowed; and by tbis action be seeks to recover that sum.

Tbe answer denied practically all of tbe complaint, except that it admitted that Hocbbrunn owned tbe property in question and sold the same for fifty thousand dollars, and affirmatively plead tbe execution by tbe plaintiff and Hocbbrunn of tbe trust agreement above mentioned, and that, in June, 1911, tbe plaintiff executed and delivered to Hocbbrunn bis deed to tbe property, thereby destroying tbe trust agreement and vesting the title in Hochbrunn. The reply admitted the execution and delivery of the deed, but alleged that the only purpose of so doing was that Hochbrunn might be able to dispose of the property to greater advantage.

Early in the trial, the trust agreement and deed were admitted in evidence. The appellant offered, and the court received, over the objections of the respondent, considerable testimony tending to show that, after the execution of the deed, Hochbrunn had admitted that the appellant had an interest in the property in question and that the sole purpose of giving the deed was to facilitate the sale and transfer of the property.

The deed was in the usual form except for the following clause therein:

“This instrument is executed for the purpose of cancelling and fully satisfying an agreement made February 21, 1903, between the first two parties [appellant and wife] Ferdinand Hochbrunn and Ranko Petkovits [appellant] said Petkovits being unmarried at the time. See Vol. 523, Deeds, page 50.”

The trust agreement shows that it was recorded in the volume and at the page last mentioned.

The case was tried to a jury. At the conclusion of the testimony, the court determined that the case was one in equity and discharged the jury, stating that, in its opinion, the testimony concerning the making and giving of the deed had been improperly received and, as a matter of law, ought not to be considered, further stating:

“So I have decided to take the case from the jury, and in the court’s opinion, upon the evidence as a whole, even if the evidence that was received as to the intent of the quitclaim was competent, the plaintiff has not made out a case according to the evidence, and the law will not permit him to prevail, so the case will be taken from the jury and a decree will be entered for the defendants.”

Judgment was thereafter entered dismissing the action. The plaintiff has appealed.

•In his brief and also in his oral argument, appellant seems to assume that the trial court refused to consider his testimony concerning the purpose of the giving of the quitclaim deed, and found against him for that reason. For the present we will assume that in this he is correct. It is our view that the deed had the legal effect of vesting the complete legal title in Hochbrunn, and forever annulling and destroying the trust agreement. To allow oral testimony to the effect that the trust agreement continued to live after the execution of the deed, and that the sole purpose for the execution and giving of the latter was to facilitate the sale and transfer of the title, would he to contradict the exact and express terms of the deed itself; for, as previously noted, that instrument recites that it was given for the purpose of “cancelling and fully satisfying” the trust agreement. The oral testimony would not only contradict the express terms of the deed, hut would make it inoperative, and to allow oral testimony which would accomplish these things would he in direct violation of the fundamental rules of law.

In the case of Parke v. Case, 113 Wash. 263, 193 Pac. 688, we said:

“In support of certain allegations in the complaint the appellant, attempted to show that the deed was not intended for what upon its face it purported to he, nor to deprive him or the community of an interest in the property. The court refused to allow such testimony, and we think properly so. The instrument was plain, positive and unambiguous. Evidently the testimony offered was for the purpose of contradicting the written instrument, and to defeat its operative effect. It Avas therefore inadmissible.”

In Morris v. Healy Lumber Co., 46 Wash. 686, 91 Pac. 186, we said:

“While it is permissible for certain purposes to show by parol what the actual consideration was upon which a deed is founded, it is never permitted where the purpose of the evidence is to annex a condition to the instrument not expressed in it. Here the purpose of the oral evidence was to show that the grant was made upon a condition that would defeat its operative effect, and for this purpose parol evidence is inadmissible.”

To the same effect see Wright v. Stewart, 19 Wash. 179, 52 Pac. 1020; Union Machinery & Supply Co. v. Darnell, 89 Wash. 226, 154 Pac. 183; Erfurth v. Erfurth, 90 Wash. 521, 156 Pac. 523.

If there be eliminated from appellant’s testimony that which we have held was improperly received, there is very little left which could support a judgment for the appellant, and the great preponderance of the evidence would be in favor of the judgment as entered.

Having come to the conclusion that the objectionable testimony may not be considered, it is not necessary to refer to other questions presented in the briefs, such as the statute of limitations and laches. Judgment affirmed.

Main, C. J., Mackintosh, Holcomb, and Mitchell, JJ., concur.  