31 Wash. 168 | Wash. | 1903
The opinion of the court was delivered hy
— This action was brought by respondents against appellants to quiet title. Respondents are husband and wife. They allege in substance that on the 6th day of October, 1901, one Lamar Cheadle, then a resident of King county, Washington, departed this life; that said Lamar Cheadle was unmarried, and left no wife, children, father, or mother surviving him, his only heirs at law being his brother and sister, the appellants herein, Raphael Cheadle and Marinda Schaffer; that said Raphael Cheadle is the administrator of the estate of said Lamar Cheadle; that said Lamar Cheadle, being then the owner of certain real estate described in the complaint, did, on the 13th day of July, 1901, enter into an oral contract with respondent Ellen Davies, by the terms of which it was agreed between them that said Ellen Davies should move into the house occupied by said Lamar Cheadle, which was situate upon the real estate described,
“Adelaide, Wash., July 13, 1901.
“This is to certify that I, Lamar Cheadle, have this day entered into a contract with Mrs. Ellen Davies whereby she agrees to take charge of my farm at Adelaide, Wash., and conduct my house and farm and board and care for me during my life time and also give me one-third of the cash proceeds accruing from said farm, from the sale of fruit, stock and product on said farm during my life, and I agree to bequeath to Mrs. Ellen Davies at my death said farm, together with all stock, farming implements and household goods and furniture belong
“Witness: D. F. Davies, Rose E. Rhodes.” (Seal.)
It is further averred that said Ellen Davies, in pursuance of the terms of said contract, took full and complete possession of said farm and personal property, the same having been delivered to her by said Lamar Cheadle on or about July 13, 1901, and that she at once entered upon the performance of her contract and fully performed the same by administering to said Lamar Cheadle and caring for him until the time of his death; that said respondent has been in full and complete possession and control of all of said property, since the death of said Cheadle, under the terms of said contract. It is further alleged that the deceased left other property sufficient to discharge all his indebtedness existing at the time said contract was made; that said estate is wholly solvent, and that there is sufficient property aside from that included in said contract to pay all debts and liabilities of the estate, including funeral expenses. It is averred that the appellants are claiming that the administrator is entitled to the possession of said personal property and to the control of said real estate, and that said Raphael Cheadle and Marinda Schaffer are claiming to be the owners and entitled to the possession of said real estate, and are demanding of said respondent Ellen Davies that they shall be let into possession of all said property; that said claim of appellants constitutes a cloud upon the title of said Ellen Davies; that in equity said property belongs to her, and that appellants have no right, title, or interest
It is assigned as error that the court overruled appellants’ demurrer to the second amended complaint. The demurrer is general, and simply challenges the complaint as not stating a cause of action. We have above set forth with some particularity the material facts stated in the complaint, more especially to serve the purposes of the discussion of this assignment of error. We think the complaint states a cause of action within the rule of many authorities. It alleges, it is true, an oral agreement to convey real estate; hut it further alleges a complete performance of that agreement on the part of the respondent Ellen Davies, and a part performance on the part of the deceased. The face of the complaint shows that the deceased placed the said respondent in full possession under the agreement; that she fully discharged her obligations under the contract during the life time of the deceased, is still in possession thereunder, and that nothing remains undone to fully execute the contract except a formal conveyance of the legal title. This shows such a performance as takes the contract out of the statute of frauds. It shows the equitable title to rest in respondent Ellen Davies; that she is entitled to the enforcement of the oral agreement thus by her performed,^ and to have
Many other cases are cited by respondents' counsel, but the rule is a well established one, and we will not cite other eases. The cases cited above rest upon facts similar to those of the case at bar. The facts alleged show respondent Ellen Davies entitled to some relief. Ordinarily the relief asked under such circumstances is specific performance, but, being in possession of the property, a decree quieting title is asked. The facts recited being such as bring the case within the jurisdiction of a court of equity, and that jurisdiction having attached, it extends to the whole controversy, and whatever relief the facts warrant will be granted. Jordan v. Coulter, 30 Wash. 116 (70 Pac. 257). A decree quieting title in this instance is in effect the equivalent of specific performance, since the action is brought by one already in possession and against the heirs of an intestate.
A number of errors are assigned upon the findings of the court. These assignments involve both the sufficiency and competency of the evidence. A controversy has arisen between counsel concerning exceptions taken by appellants to the findings of facts and conclusions of law. Bespondents’ counsel contend that no sufficient exceptions to the findings were taken, and for that reason a review of the findings and evidence cannot be had. At the foot of the findings, as shown by the record, appears (he following:
“Boyd J. Tallman, Judge.”
“June 5, 1902.”
A similar statement follows the conclusions of law. ^Respondents urge that the above portion of the record shows that appellants’ counsel was present when the findings were signed, and that no other exceptions were taken. :Such general exceptions have been repeatedly held by this court to be insufficient to challenge attention to any spe■cific finding, and a review of the facts has been as repeatedly refused under such exceptions. It is our duty to ■follow that rule here, if such are the only exceptions in the record. Other specific exceptions,, however, appear as having been filed June 12, 1902, seven days after the ■findings were filed. Appellants seek now by affidavit to •contradict the statement in the record that they were •present in person and by attorney, and took the general ■exceptions at the time the findings were signed. We cannot permit the record to be thus contradicted, and must ■decline to consider the affidavit. But with appellants present and taking the exceptions at the time as recited in the record, we know of no reason why they might not have filed more specific exceptions within five days, as provided by § 5052, Bal. Code. The exceptions were, Iiowever, not filed for seven days after the filing of the findings, but the record further shows that on the 9th day ■of June respondents served written notice upon appellants •of the signing and filing of the findings and conclusions. The section of the statute provides, among other things, that exceptions may be taken by filing written exceptions ■“where the report or decision is signed subsequently to the Iiearing and in the absence of the party excepting, within
We have read all the evidence and examined all the exhibits. Error is assigned upon the introduction of testimony. We have held that this is not of itself sufficient to warrant a reversal of an equity cause, which is triable de novo in this court. Rohrer v. Snyder, 29 Wash. 199 (69 Pac. 748). If there is sufficient competent evidence to sustain the court’s findings and judgment, this court will not reverse a cause because there may have been some incompetent evidence admitted. There is ample evidence to support the court’s findings in this case. There is much conflict, to be sure, but not such as leads us to the belief that we should disturb the findings of the trial judge, who saw and heard these disputing witnesses. The main point was to determine if the alleged contract existed. If the contract actually existed, then, under the evidence, there is little room to contend that respondent Ellen Davies did not perform her part of it. As an evidence of, and as relating to, the actual contract, the original writing,
The judgment is affirmed.
Fullerton, O. J., and Dunbar, Mount and Andebs, JJ., concur. '