34 Wash. 132 | Wash. | 1904
This was an action for the partition of real estate, commenced in the superior court of Skagit county by appellants, William D. Legg, Hattie Legg, Cassie Legg, Mary Legg, Lydia Staples, Arthur L. Heywood, Edgar A. Heywood, and William M. Lyden, against respondents, Malena Legg, Milo J. Legg, John Steen, and James White.
Joseph B. Legg, on the 8th day of March, 1873, made final proof, under the pre-emption laws of the United States, on the northwest quarter of the southwest quarter of section 22, township 36 north, range 3 east, in Skagit county, Washington. Patent issued for this land to said Legg on Eebruary 25, 1874. On the 22nd day of September, 1874, in Whatcom county, this state, Joseph B. Legg and respondent Malena Legg intermarried, and, from that date continuously till on or about June 1st, 1899, they occiipied this property as their home. After their marriage, on June 20, 1884, Joseph B. Legg acquired title by patent to lot 3, section 21, in township 36 north, range 3 east, W. M., pursuant to the homestead laws of the United States.
On or about June 1st, 1899, Joseph B. Legg died, intestate, leaving as his heirs at law, his widow, Malena Legg; Lydia Staples, a sister; Cassie, Mary, and Hattie Legg, children of Charles H. Legg, a deceased brother; William M. Lynden, whose name was formerly William M. Legg, an only child of Edwin Legg, a deceased brother, whose name was changed by a decree of the probate court in
The trial court found, that, since June 1st, 1899, the date of the decease of Joseph B. Legg, respondent Malena Legg has been in the sole and exclusive occupation of the northwest quarter of the southwest quarter of section 22, above described; that the reasonable rental value thereof is $225 per annum; that, at the time of the marriage of Joseph B. Legg with respondent Malena Legg, this land was of no other or greater value than $500; that since their marriage said husband and wife resided upon, improved, and enhanced the value of said land by their joint efforts to the extent of $900; that the present value thereof is $2,000; that the rental value of such property, during the time it was occupied hy intestate and Malena Legg, in excess of taxes paid, was $100 per annum; that Malena Legg, at the time of the death of her husband, had no property of any kind or character except her community interests in the property above named; that she was not indebted to the community in any sum whatever; that, since the decease of Joseph B. Legg, Malena Legg has paid the expenses of the last sickness and funeral of her deceased husband and costs of administration of the estate amounting to $150, the sum of $111 general taxes, and $43 in labor for road property tax assessed against said northwest quarter of the southwest quarter of section 22; that in 1901 the Seattle and Montana Railroad Company instituted proceedings to condemn a right of way through the real estate first above described, making Malena Legg, William D. Legg, James White, and John Steen defendants therein; that all of said parties defaulted in such proceedings, except Malena Legg,
The trial court further found: “That, so far as the public records show at the time said condemnation proceedings were pending, said Malena Legg was the owner of said property. That an order was made in said proceedings directing said $940 to be paid to said Malena Legg, said order was made without notice to any of the plaintiffs [appellants].” The court also found, that $100 is a reasonable fee to be allowed appellants’ attorneys in case the same is a proper allowance as a part of the costs herein; that said property is so situated that a partition thereof cannot be made without great prejudice to the owners.
On these findings of fact the trial court made its conclusions of law, that respondent Malena J^egg is the sole owner of said lot 3 in section 21 as the survivor of the community (Joseph B. and Malena Legg) ; that the appellants and respondent Milo J. Legg are the owners of an undivided one-half of the northwest quarter of the southwest quarter of section 22, township 36 north, range 3 east,
On October 28, 1902, the superior court rendered a decree ordering this tract to be sold. Out of the proceeds of such sale, Malena Legg was first to receive $904.05, with interest at seven per cent, from date of decree; one-half of the residue of such proceeds was to be paid to Malena Legg, and the other half thereof to be paid to appellants and Milo J. Legg. Malena Legg was charged with one-half of the costs, and appellants and Milo J. Legg, with the other half. The court refused to tax any attorney fees as a part of the costs on either side. Plaintiffs allege exceptions, and appeal to this court.
Appellants contend that the trial court erred: (1) in not allowing them an attorney fee of $100 as a part of the costs; (2) in refusing to allow them their share of the money received by respondents for the right of way from the railroad company; and (3) in allowing Malena Legg’s
(1) Bal. Code, § 5604, provides:
“The costs of partition, including fees of referee and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree. In that case there shall be a lien on the several shares, and the decree may be enforced by execution against the parties separately. When, however, a litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.”
The question presented by appellants’ counsel is whether the above provision authorizes the taxation of attorney’s fees as a part of the costs in partition suits. Some of the authorities cited by appellants from other states hold that, under the general term “costs,” attorney’s fees may be taxed in partition cases; while the vast majority of courts treat this subject-matter as regulated wholly by statutory provisions, refusing to tax such fees unless specially named therein. The recovery of costs, by that name, was unknown to the common law till regulated by statute, in the courts of law. The allowance of costs in any case depended entirely on the terms of the statute. 5 Enc. Plead. & Prac. p. 110. This court, in Trumble v. Trumble, 26 Wash. 133, 66 Pac. 124, decided, in accordance with this rule — in enforcing a judgment lien for alimony in a divorce suit against certain property — that, when there was no provision for an attorney fee by the terms of the original decree, it was error to allow more than the statutory compensation as provided in Bal. Code, § 5165. We think the rule enunciated in that case on this subject is correct, and, when applied to the case at bar, AVould not authorize us in allowing the attorney fee which appellants now contend should be charged against
(2) On the second contention, we are of the opinion that Malena Legg should account, under the findings of the trial court, to the appellants (excepting William D. Legg), as heirs at law of decedent, Joseph B. Legg, above named, who were not parties to the condemnation proceedings instituted by the Seattle and Montana Railroad Company, for their interests, respectively, as such heirs, in the money received by her from the railroad company, after deducting the expenses necessarily incurred in connection with such condemnation proceedings. The public records showed that, at the time of the condemnation proceedings, Malena Legg was the owner of the land taken as a right of way, and she received the money as the value of the real estate condemned, and not simply as payment for her interest therein. This seems to be the correct interpretation of the findings of the trial court in that behalf. If this be true, it is hut fair and equitable that Malena Legg should be treated as a trustee for these heirs, with reference to their respective interests in that fund. Whether these appellants are concluded by the judgment of the superior court in the condemnation proceedings instituted by the railroad company, is not a material question in the controversy, as presented by this record. These appellants have the undoubted right to treat the proceedings as valid, and call upon Malena Legg for an accounting as their trustee. Appellant William D. Legg is not entitled to share in this fund, as he was a party to-the condemnation proceedings, and defaulted therein.
(3) Appellants’ counsel concede in their argument that respondent Malena Legg is entitled to a credit of one-half
In Furrh v. Winston, 66 Tex. 525, 1 S. W. 527, the court uses the following language: “It is well settled that separate estate of one mtember of the community must reimburse the community for any proper improvements made in good faith upon the separate estate with community funds.” Citing Rice v. Rice, 21 Tex. 66; Bond v. Hill, 37 Tex. 626. See, further, Clift v. Clift, 72 Tex. 144, 10 S. W. 338. Applying this rule of law to the facts in the case at bar, Malena Legg, as survivor of the community, is entitled to reimbursement from the separate estate of Joseph B. Legg, decedent, as decided by the trial court.
The judgment of the superior court should be modified as indicated in this opinion, and the case is therefore re
recover costs on this appeal.