22 Wash. 6 | Wash. | 1900
The opinion of the court was delivered by
In April, 1890, plaintiffs conveyed the land described in the complaint to Thompson, Drum, and George M. Savage, together with other property, for $18,-140, of which $1,000 was paid in cash, and notes secured by a mortgage on the land were executed, payable two years from date. Pursuant to agreement, a deed was made to Savage, and he executed a mortgage to plaintiffs. Both deed and mortgage were duly recorded. At the time the deed was executed George M. Savage was unmarried. In October, 1890, articles of incorporation of the Home Building Association were filed, and on the same day Savage conveyed the land included in the mortgage, together with other tracts of land, to the association. Savage was president of the association at the time the conveyance was made. In November, 1890, Savage intermarried with his present wife, Bessie I. Savage. In May, 1892, the notes given for the purchase price became due, and plaintiffs brought suit thereon against Savage, Thompson, and Drum to recover the remainder of the purchase price. On the 28th day of May, 1892, the Home Building Association, Savage still remaining, its president, conveyed the land in controversy to Savage, the consideration expressed in the deed being one dollar and other valuable considerations. On the 13th day of June, 1893, plaintiffs recovered judgment in the action pending against Savage, Drum, and Thompson. Defendants appealed, and the judgment was
1. Judgment was rendered in favor of defendant Has-son. After the answer was filed, counsel for plaintiffs moved to dismiss the action as to the defendant Hasson on the ground that her answer was in the nature of a cross-complaint, and set up a legal title to the premises involved, which could not be properly litigated in the action. Such motion was overruled. The motion is urged here, and counsel maintains that only an equitable defense or the superiority of liens can be determined in a foreclosure of the mortgage. Citation is made from 1 Pomeroy on Equity Jurisprudence, § 130, which reads as follows:
“ In some instances, however, where the equitable functions of the court are specifically defined by statute, or the facts show very clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordinary legal proceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection has in any way been raised by the parties.”
But it is also said in § 177, by the same authority, that:
“ While this general doctrine is well established, still, in addition to the particular cases of disputed boundaries, partition, and assignment of dower, over which the concurrent jurisdiction may extend, and in which a remedy strictly legal may be granted, a court of equity will also confer the final relief of possession, and will decree a defendant to deliver up possession of land to the owner, when such relief is incidental to the main object of the suit, and the action is brought for some object otherwise within the equity jurisdiction.”
Section 4913a, Bal. Gode, declares:
“ The defendant may set forth as many defenses and counterclaims as he may have, whether they may he such as have heretofore been denominated legal or equitable, or both.”
Counsel for appellants also cites California Safe Deposit, etc., Co. v. Cheney Electric Light, etc., Co., 12 Wash. 138 (40 Pac. 732), but we do not think the case is in point here. The following eases are pertinent in the examination of the question: Cole v. Reynolds, 18 N. Y. 74; Bowen v. Aubrey, 22 Cal. 566; New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85.
It was within the power of the court to determine the rights of the respective parties after the plaintiffs had brought the defendant Kasson into the action.
2. It is contended by counsel for plaintiffs that, if the execution sale under which the premises involved were sold was invalid because the community property could not be sold for the separate debt of George M. Savage, still the court ought to revive the original mortgage executed for the purchase price by Savage and delivered to plaintiffs; but plaintiffs abandoned this mortgage. They brought suit upon the note which it was given to secure, and obtained the judgment against the makers of the note, and levied the execution under such judgment upon the property which was included in the original mortgage, and it was sold for a sufficient amount to satisfy the judgment. By agreement between the plaintiffs and the sureties upon the supersedeas bond in the original action, the sureties purchased the premises, and the sheriff returned the satisfaction of the execution and the notes which were executed for the purchase price by the sureties to the plaintiffs. •The original mortgage had thus been abandoned. The
3. It is argued in the brief that the transfers of the property in controversy from George M. Savage to the Home Building Association, and from the Home Building Association to George M. Savage, after his marriage, were fraudulent; that is, intended to defraud George M. Savage’s creditors. But, from an examination of the record, it does not appear that any evidence of fraud was adduced by plaintiffs. The conveyance from the Home Building Association to Savage and wife after the existence of the community raises the presumption that the transfer was made to the community. In addition to this presumption is the testimony that the consideration for the land transferred in fact proceeded from the community. It is true that it also appears that a part of the consideration for the land transferred was the surrender of some shares of stock in the Home Building Association which were the separate property of George M. Savage, but it does not appear that they were of any value, while it does appear that the community advanced the consideration of real value. Without proof negativing the presumption raised by the facts shown, the premises in controversy must be held to belong to the community of Savage and wife, and, the conveyance having been made to them prior to the levy of the execution under the judgment obtained by plaintiff against Savage, Drum and others, the sale made thereunder could not affect the community rights of Savage and wife and the respondent holding these. It follows that the judgment of the superior court was correct.
Affirmed.
Gordon, C. J., and Fullerton, J., concur.
Dunbar, J., dissents.