26 Wash. 588 | Wash. | 1901
The opinion of the court ivas delivered by
In 1887, in Minnesota, the appellant recovered a judgment against George U. Holcomb and his father, S. Holcomb, for $445.66. On this judgment, on the 18th of November, 1893, in the superior court- of Washington, for the county of Pacific, judgment was recovered against said George H. Holcomb for $766.08, on which there was due and unpaid at the time this action ivas brought the sum of $1,142. Execution Avas not issued on this judgment until August 9, 1898, and it was returned unsatisfied September 13, 1898. This judgment has been renewed. Ida Holcomb Avas the wife of George H. Holcomb at the time said judgment was recovered against him in Minnesota, and lived there with him until April, 1886, when he abandoned her and their infant child and came to this state. In 1889 he wrote to the respondent, Ida Holcomb, that if she would come and live Avith him, he would never abandon her again, but Avould provide for, and make suitable provision for her and her child. Under this promise she rejoined her husband in this state in 1889. In 1889-1891, George U. Holcomb and respondent lived at South Bend, Washington; and George U. Holcomb was the general manager and a director of the South Bend Land Company, a corporation largely engaged in dealing in real estate and town lots. He Avas very influential in the management of the company, and Avas one of its promoters. In 1890 the value of the holdings of this company Avas $50,000, and on April 26, of that- year,
We will first consider the evidence in support of the statute of limitations, and the rule of law applicable to the same. The statute of limitations, which the appellant seeks to avoid by the averment in his complaint that he was ignorant until 1891 of the fraudulent agreement therein alleged, between respondent and George U. Hol
“Statutes of limitation are vital to the welfare of society, and are favored in -the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose, by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and the antidote go together.” Wood v. Carpenter, 101 U. S. 135.
According to the testimony of Mr. McMath, who represented the appellant in the East, when it was discovered that George U. Holcomb was living at South Bend, efforts were at once commenced to realize on the Minnesota judgment, and arrangements were made with M. D. Egbert, an attorney at South Bend, to look after this claim. This was in October, 1891, and since that time M. D. Egbert and Hewen & Stratton have been looking after such claim. M. D. Egbert, called as a witness by the appellant, testified that he has resided in South Bend since the 25th day of April, 1890, and that he was acquainted with George U. Holcomb in 1890; that in 1890 he visited with said George H. Holcomb while the house, built on the lots deeded to the wife by the South
It is a general rule that notice to the attorney is notice to his client; that this rule applies to all notices arising in the progress of a case, or as to other matters in which the relation of attorney and client exists at the time of the notice, and it applies not only to knowledge acquired by the attorney in the particular transaction, hut to knowledge acquired by him in a prior transaction in which he acquired material information, if the information was so precise and definite that it is or must he present to his mind and memory in the last transaction. The Distilled Spirits, 11 Wall, 356; 2 Pomeroy, Equity Jurisprudence, § 672; Wittenbrock v. Parker, 102 Cal. 93 (36 Pac. 374, 24 L. R. A. 197, 41 Am. St. Rep. 172).
The attorneys of the appellant and the appellant himself had constructive notice that a large amount of real estate was conveyed to the wife, ás early as 1890 and 1891, by the South Bend Land Company. The attorney who brought this action before 1894 examined the records in the auditor’s office of Pacific county for property in the name of George II. Holcomb, and, under our system of indexing, necessarily must have obtained on such examination actual knowledge of the conveyance to respondent by the land company. The attorneys knew in 1894 that George H. Holcomb was insolvent, knew that the respondent was the wife of George U. Holcomb; knew that the real estate was conveyed to the wife; knew, or could have easily ascertained, that George H. Holcomb was the manager of the South Bend Land Company; knew, or could have easily ascertained, that the wife was of limited means before she came to Washington. The real estate in her name, under the circumstances, — her husband being insolvent, as claimed, — was certainly sufficient notice to put
“ ‘Whatever is notice enough to excite attention, and put the party on his guard, and .call for inquiry, is notice of everything to' which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall he deemed conversant of it’ . . . ‘The presumption is that if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.’ ” Wood v. Carpenter, 101 U. S. 135 ; Martin v. Smith, 1 Dill. 86; Carr v. Hilton, 1 Curt. 390; Morgan v. Morgan, supra; Wickham v Sprague, 18 Wash. 466 (51 Pac. 1055) ; Hecht v. Slaney, 72 Cal. 363 (14 Pac. 88) ; Wright v. Davis, 28 Neb. 479 (44 P. W. 490, 26 Am. St. Pep. 347) ; Hawley v. Page, 77 Iowa, 239 (42 P. W. 193, 14 Am. St. Rep. 275).
A party defrauded must he diligent in making inquiry. The means of knowledge are equivalent to knowledge. A clue to the fact, which, if followed up diligently would lead to a discovery, is in law equivalent to discovery, — • equivalent to knowledge. Norris v. Haggin, 28 Fed. 275.
Mr. Egbert, one of the attorneys when the judgment was recovered in 1893, had actual knowledge of the probable value of the home and its appurtenances; that the husband had given it to the wife, had furnished it for her, and had given to her 399 shares of the capital stock of the South Bend Land Company. The knowledge of
The deed to respondent in 1896 by the South Bend Land Company for two lots in South Bend was long after the respondent was divorced from George TJ. Holcomb. The South Bend Land Company was indebted to the respondent on account of dividends on her capital stock, and this deed was delivered to her in part payment of these dividends. If the transfer of the stock is rendered valid by the lapse of time, property purchased with the dividends cannot be charged with the original fraud. But the appellant claims that the knowledge of Egbert should not he imputed to the appellant and his associates, Hewen & Stratton, because out of personal friendship for respondent Mr. Egbert did not see fit to institute this action in 1893. The only instance wherein notice to the attorney does not constitute notice to the client is where the attorney, in collusion with the adverse party, suppresses the information that he may have. The respondent did not know that Egbert had suppressed such information. She never advised with him relative to the suppression of such information. There is not a scintilla of evidence offered to show that there was any collusion between the respondent and Ebgert. The fact that Egbert did not inform his client of the knowledge he had cannot militate against respondent, Ida Holcomb, as she was in no way to blame for the failure to give such information. If the attorney did not proceed with his action when he
The evidence clearly shows that the debt due from George U. Holcomb, to the appellant was the separate debt of George U. Holcomb, and was not a community indebtedness in any sense of the term. That being the case, real estate acquired in this state by George H. Holcomb and wife in the manner the real estate in controversy is shown to have been acquired was community real estate, and was not subject to execution for the payment of the separate debts of the husband. It is immaterial whether such-real estate stands in the name of the husband or wife. The conveyance of such real estate to the wife is not even evidence of fraud. The husband could give his interest in such real estate to the wife, and no one could question the good faith of such a transaction but the creditors of the community. The appellant is not such a creditor, and a transfer of such property is a matter •of no concern to him. Bump, Fraudulent Conveyances (Ith ed.), § 220.
George H. Holcomb testifies that in drawing the last three dividends on his wife’s share of stock he was acting as her agent. There is no evidence to contradict this. There is no evidence in this case in any way tending to support the allegation of the complaint that the respondent holds any'of the property in controversy in trust for the benefit of George H. Holcomb. The most favorable construction, in favor of the appellant, that can be put upon the testimony, is that George H. Holcomb made a gift of the 399 shares of stock, and the furniture in the house,
The judgment of the court below is, therefore, affirmed with costs to the respondent.
Keavis, C. I., and Duxbak, Axdebs, Mount, Fulleetox and Hadley, JJ., concur.
OX MOTION TO EETAX COSTS.
This is a motion by appellant to retax
costs, for the reason that one dollar per page is an unreasonable price for printing the briefs; the assertion being that seventy cents per page is the customary price. A second objection is that pages from I to 23, inclusive, of respondent’s brief, contain only the findings of fact made