Slater v. Murphy , 55 Wash. 2d 892 ( 1959 )


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  • Mallery, J.

    (dissenting)—Itkin v. Jeffery, 126 Wash. 47, 216 Pac. 861, is in point and is controlling. It has never heretofore been cited in this state. It was a badly considered case, which makes justice unattainable under circumstances such as are here presented. I would overrule it now and nip its evil in the bud.

    The error in that case was that it misapplied the requirement that both spouses join in a conveyance of real property. This unquestioned rule of law does not extend beyond the execution of the conveyance. Specifically, there is no requirement that a wife take part in the preconveyance negotiations nor could her voluntary and properly executed deed be set aside at her behest upon the ground that she blindly relied upon her husband and voluntarily but unwittingly executed the deed.

    Of course, a wife can testify as to the expressed intentions and representations of her spouse and of herself also, if they existed.

    Actually, what we are concerned with here is the burden of proof. Assuming that it has been adequately met as to the husband’s mutual mistake with the adverse parties, there should not be a failure of justice because of the impossibility of proving a substance where a vacuum may very well exist. The universal approach of courts to such a situation is to indulge a rebuttable presumption for the purpose of requiring the adverse party to go forward with proof of a fact which, if it exists, is available to him.

    *902Such a presumption should be indulged in this case. I dissent.

    Hunter, J., concurs with Mallery, J.

Document Info

Docket Number: 34861

Citation Numbers: 339 P.2d 457, 55 Wash. 2d 892, 1959 Wash. LEXIS 527

Judges: Hull, Mallery, Foster

Filed Date: 5/21/1959

Precedential Status: Precedential

Modified Date: 11/16/2024