131 Wash. 657 | Wash. | 1924
Alma de la Pole, formerly Duncan, was legally adopted by John W. Duncan and his wife, Clara A. E. Duncan, who had no child born of their marriage. During their married life the Duncans acquired farm lands, including the tract of about four hundred acres involved in this action, situate in Columbia county. He died intestate in 1898, leaving no child other than the adopted one. Mrs. Duncan served as administratrix of his estate, and because of certain probate proceedings therein and transfers of the property, she claimed all of the property as her own. "While thus claiming the property, she executed in proper form and delivered a lease of the property to E. L. Lindley for a term of years and put him in possession of the lands, other than the dwelling thereon, which had been reserved and for a number of years had been, and continued to be, occupied by Mrs. Duncan and her daughter as a residence until the death of Mrs. Duncan in the year 1919, and thereafter by her daughter Mrs. de la Pole. Mrs. Duncan died in 1919, leaving a will by which she devised to Mrs. de la Pole, among other things, a life estate in and to all of the property involved in this suit. The will was duly proven and admitted to probate. Thereafter Mrs. de la Pole brought and prosecuted an action with the final result that this court, in the case of de la Pole v. Lindley, 118
Thereafter, in 1922, the lease from Mi's. Duncan to the respondent not having expired by several years, the respondent and his wife instituted this action, and by a complaint and an amended complaint against Mrs. de la Pole and others, sought a decree of partition of the property, alleging, among other things, that she unlawfully and unjustly asserted an interest in the real estate and growing crops adverse to the plaintiffs and was molesting and interfering with plaintiff’s possession of the premises. These allegations were sustained by the proof at the trial. And by a supplemental complaint demanded an accounting of Mrs. de la Pole for the value of the crops that year, which it was alleged she had harvested and sold. Upon appropriate issues duly made up, the case was tried. A decree of partition was entered, together with a money judgment in favor of the plaintiffs and against Mrs. de la Pole in the sum of $1,769.19, less a credit in her favor in the sum of $381.92. Mrs. de la Pole has appealed.
At the date of the execution of the lease by Mrs. Duncan to the respondent Lindley, although she held the legal title of record to all the property, she was the beneficial owner of only an undivided one-half interest in it, as was determined by the subsequent suit of de la Pole v, Lindley, supra, and the present respondents Lindley were bound by the final judgment in that action because they were parties to it. So far as their rights are concerned, that is as far as the judgment went in that case, and contrary to’appellant’s contention now, it did not adjudicate that the lessee had no rights under the lease from Mrs. Duncan,
It is assigned that the court erred in physically dividing the property between the parties and awarding to the respondents a portion of it during the remainder of the term of years provided in the lease. The procedure followed was that provided in § 838 et seq., Rem. Comp. Stat., and the record shows that, upon hearing the report of the referees and written objections filed thereto by Mrs. de la Pole, there was abundant and convincing evidence to show that the property could be divided and allotted to the respective parties, as it was, quality and quantity relatively considered according to the respective rights of the parties as determined by the court, without prejudice to the rights of the parties.
It is further contended by the appellant that the respondents have forfeited their rights under the lease because of a violation of its terms that the lessee should “not assign this lease, or sublet any portion without first obtaining the written consent of the first party.” The evidence on which reliance is had was to the effect that, at the time the lease contract was made, the lessee
The conclusion reached by the trial judge upon the accounting between the parties for the crops of 1922 was clearly sustained by the proof.
Affirmed.
Main, C. J., Pemberton, Fullerton, and Bridges, JJ., concur.