27 Wash. 211 | Wash. | 1902
The opinion of the court was delivered by
This action was brought by appellant against respondents to recover possession of the following described real estate situated in Walla Walla county, viz., the southwest quarter of section 24, township 10 north, of range 35 east, W. M. Appellant alleged in his complaint that he was the owner in fee, and, after demand, respondents refused to surrender possession of the said property, and also that he acquired the title to the said property from the respondent D. B. Rogers by sale under execution upon judgments against respondents. The respondents T. A. Rogers and Louisa Rogers appeared in the action together, and filed a general denial. Respondent D. B. Rogers appeared separately, and, after a general denial, alleged substantially that the judgment under which the property was sold to appellant was fully paid prior to the issuance of appellant’s deed, and that the deed was therefore void. The trial proceeded for some time upon these issues, when respondent D. B. Rogers obtained leave of the court to file an amended answer, which alleged, in substance, that on April 5, 1898, appellant and respondent had an accounting and settlement of the judgment under which sale of the land in question had been made, and that appellant then and there agreed to satisfy the said judgment, and return the promissory notes upon which tke judgment was based; that the respondent performed his part of the agreement, by delivering deeds to appellant for certain real property, and bill of sale of certain personal property in satisfaction of the judgments, and that respondent at said time did not know that a sale of the lands in question had been made
At the trial the facts developed were substantially as follows: Appellant held two deficiency judgments against respondents in the superior court of Columbia county, the aggregate amounting to $948.68. Executions were issued on these judgments and forwarded to the sheriff of Walla Walla county. On February 16, 1898, these executions were levied on the lands in question and an adjoining tract in Walla Walla county. These lands were thereafter sold at sheriff’s sale, and purchased by appellant, and a sheriff’s certificate of sale issued to him therefor. The
It is argued by appellant in this court: First, that this is a law action, and that findings of fact by the court were necessary, under § 5029, Bal. Code; Bard v. Kleeb, 1 Wash. 370 (25 Pac. 467) ; and Sadler v. Niesz, 5 Wash. 182 (31 Pac. 630, 1030). It is true, the action was brought as a law action, and that there was a general denial in the answer which raised questions of fact proper for a jury. There appears to have been no demand for a jury, but the parties seem, without objection, to have submitted the cause to the court for trial without a jury. There was also an equitable defense interposed, and the cause was tried solely upon this defense. There was no attempt to dispute the record title to the land, or that the legal title of record was in the appellant. The whole controversy was tried upon the amended answer and reply. The court seems to have heard all the evidence relating to, the transaction, and to have considered the reply amended to conform to the proof, and determined that the appellant had, in fraud of respondent’s rights, obtained title to the land, and adjudged appellant’s title to be held in trust for respondent. As tried, the action was purely equitable. This court has repeatedly held that § 5029, Bal. Code, has no
2. Appellant alleges as error, that the court permitted oral evidence to vary the terms of a written contract. We do not think this was the effect of the oral evidence offered. The agreement of settlement does not appear to have'been in writing. It is true, there were three written instruments, viz., a bill of sale by respondents, conveying certain personal property to appellant; a release of certain judgments, executed by appellant, describing the Columbia county judgments, and reciting, “this release being only of the deficiency judgments obtained in said two cases,” but not reciting whether the deficiency was the original amount or the amount of the judgment after the application of the proceeds of the Walla Walla county sale of real estate; and a certain written agreement signed by both parties, wherein the fact was recited that the bill of sale and release named above had been executed and placed in escrow, to be delivered to respondents upon respondents delivering the property named in the bill of sale within the time therein stipulated. There is nothing in these papers which purports to state the terms of the settlement, or the consideration thereof. These papers, upon their face, make no reference to the principal agreement, and show that they are all collateral matters which were necessary to carry out the terms of the contract. They do not show the contract itself, but indicate there was a'contract. It was, therefore, not error of the court to receive oral evidence of what the agreement was, because the agreement itself was oral.
3. Appellant next contends that the evidence shows no fraud on his part, and that the record shows the legal title in him, and there is no defense to defeat this title. These last assignments of error depend upon the facts. The evi
At the time of the settlement on April 5, 1898, other proceedings were, therefore, necessary before the title to the lands passed to appellant. The evidence clearly snows that appellant and respondent agreed that all court proceedings should stop at the time of the agreement, and that appellant should satisfy the judgments and deliver all papers to respondent. In answer to the question, “How has the land been treated since the agreement?” respondent answered, “It has been treated as mine. It has been in my possession all the time, — this northwest quarter of section 24. It is in the south side of the field. There is no division fence between the north and south half. We had a surveyor run a line between, and he agreed to put up his part of the fence at any time. We had always treated it as mine. I did all his heading of this grain that I gave to him, and he treated it all the time as my land. He said all the time that I had about as good a half as he had, referring to that half in the south side of the field; and his half was in the north side of the field.” T. A. Rogers, Louisa Rogers, George L. McGhee and J. H. Snyder each testified to having had conversations with appellant after the time of this settlement, and that appellant said to each of these persons, substantially, that respondent had paid his debt and had- the land in controversy left; that it was
Reavis, C. J., and Dunbar, Hadley, Fullerton, Anders and White, JJ., concur.