Long v. Eisenbeis

23 Wash. 556 | Wash. | 1900

The opinion of the court was delivered by

Dunbar, C. J.

The history of this case is a long one. One Henry Bash purchased from Mary Eowler and others, in August, 1888, certain land situated in Jefferson county, known as the “Eowler Tract,” containing 237.85 acres. Bash had previously, in the same month, obtained a contract of sale of the land from the grantors, and a deed of conveyance pursuant to the contract was obtained. About that time Bash entered into a written contract with Eisenbeis, whereby they agreed to acquire, hold, sell, and dispose of the land jointly, Eisenbeis to furnish the money for purchasing and platting the land, and to hold the title in his own name, and to reimburse himself from the proceeds of sales, the net balance of all moneys received from sales to be divided equally between them. This agreement was subsequently modified orally to cover an increased purchase price demanded by the grantors as to a part of the tract. On the 31st of August, 1888, Bash and wife conveyed all the land by deed to defendant Eisenbeis, pursuant to their contract. Eisenbeis entered into possession, and subsequently sold a greater portion of the land. He received all the money, and reimbursed himself for all outlay, and divided the net proceeds with respondent Bash. The parties, however, disagreed upon their accounting and upon the ownership of the unsold land, and in September, 1893, Bash and wife instituted a suit against the defendants, setting out substantially the foregoing facts, asking that the contract be rescinded and an accounting had of all the affairs of the trust, and that the lands remaining unsold be divided in accordance with the rights of the parties. Hpon the tidal of that action specific findings of fact were made by the court. It appears that all the land had been platted except 81.61 acres. The court in that suit found that the unsold land should be equally divided, but the decree omitted auy mention of the unplatted land, viz., the 84.61 acres. Tbe plaintiffs brought an action to vacate such judgment. Upon appeal to this court, the cause was decided against the plaintiffs, for the reason that the petition to vacate the decree did not exhibit the entire record upon which the decree was based, and, if there were any seeming inconsistencies between the portions of the record pleaded, they must be presumed to be explained by that portion of the record which was not shown. Long v. Eisenbeis, 18 Wash. 423 (51 Pac. 1061). Upon the decision of that case, this action was brought against the defendants, plaintiffs alleging that they were owners in fee simple of an undivided one-half interest in 84.61 acres of land; that defendants wrongfully held possession and claimed ownership of the same, and asking for relief and for damages. The defendants answered, denying the material allegations of the complaint, and pleaded the former judgment of the court as an estoppel. The plaintiffs demurred to the affirmative matter alleging the estoppel, which demurrer Avas overruled, and, upon appeal to this court (Long v. Eisenbeis, 21 Wash. 23, 56 Pac. 933), the cause was reversed, it being there held that the record of the former judgment pleaded as an estoppel affirmatively showed that the land in controversy, viz., the 84.61 acres, was not an-issue determined in the former suit. The case was remitted to the superior court, with directions to sustain the demurrer of plaintiffs to the plea of res adjudicaba set up in defendants’ answer, and for further proceedings not inconsistent with the opinion in that case.

It must have been determined by this court that one-half the land in dispute had been found by the findings of fact in the prior case to belong to Eisenbeis, and that Eisenbeis was a trustee of Bash, holding said lands for his benefit; for, if it had not so appeared, it would have been a vain thing for the court to have remanded the ease for trial upon its merits, the complaint being the same which is now demurred to, with the exception of the supplemental portion thereof. Upon the return of the case a supplemental complaint was filed by the plaintiffs, alleging, in brief,, that since the commencement of the action, the lands in dispute have been condemned by the United States government; that one-half the value of the same has been turned over by the government authorities to Eisenbeis, and that the other half is held in the registry of the United States court, awaiting a determination by the state court of the question of who was entitled to the same. To this complaint the defendants interposed a demurrer, which embraced the following assignments of error:

(1) The court below erred in permitting the plaintiffs to file their supplemental and amended complaint in this cause over the objections and exceptions of defendants; (2) the court erred in overruling the demurrer of defendants to said supplemental and amended complaint filed by plaintiffs; (3) the court erred in retaining jurisdiction of this cause after the filing of said supplemental and amended complaint, and in refusing to dismiss this cause for want of jurisdiction; (4) the court erred in refusing to dismiss this cause after it was shown at the hearing of said demurrer that there were necessary and indispensable parties, who had not been made parties to this cause, and without whom no decree would be rendered which would determine the whole question involved; (5) the court erred in refusing to sustain said demurrer to said supplemental and amended complaint upon the ground that said supplemental and amended complaint did not state facts sufficient to constitute a cause of action; (6) the court erred in refusing to sustain said demurrer upon the ground that this cause was barred by the statute of limitations; (7) the court erred in rendering judgment for plaintiffs; (8) the court erred in refusing to render judgment for defendants.

Outside of any question of res adjudicada, in the case, we are satisfied from all the records that Bash was entitled to one-half of the 84.61 acres. This amount added to 153.24 acres, land which was platted into- lots and blocks, makes the amount of 237.85 acres, the land deeded by Bash to Eisenbeis, and the amount which was the subject of the written contract.. We are also very firmly of the opinion that the complaint stated a cause of action, and that it would be a narrow and illiberal construction of the contract to hold that Bash would not be entitled to an equitable division of the property upon the refusal or inability of Eisenbeis to sell the same. He was entitled to have the property sold in accordance with the contract, and, upon the failure of Eisenbeis to do this, he was entitled to- his equitable relief, viz., a restoration of his portion of the property and a decree restoring the legal title to him. The case is not different from thousands of adjudicated cases where the contract was substantially as the contract in this case. This disposes of' the sixth assignment, that the court erred in refusing to sustain the said demurrer upon the ground that the cause was barred by the statute of limitations; for it is conceded that, if the action was an action in relation to interest in real estate, or to- remove the cloud from title, the six year statute does not apply. The first, second, third and fourth assignments of error are based upon the amended complaint. We do not think the court erred in permitting the plaintiffs to- file their supplemental and amended complaint. Our Code provides for a liberal allowance of amended pleadings, and it is a matter that is, of necessity, so largely discretionary with the trial court that its action in this respect will not be reversed unless it is manifest that the discretion is abused.. We do not think there was any abuse of discretion in this case. The defendants were not taken by surprise, nor was any injury done them hv the supplemental matter alleged. For do we think any new cause of action was stated. A recovery on the original complaint would have barred recovery on the supplemental complaint, if it stated the facts, ánd the demurrer concedes that the supplemental complaint was necessary to bring to the attention of the court material matters and things which had transpired subsequent to the filing of the original complaint, and which could not have been brought to its attention in any other way. ISTor was it necessary, under the averments of the complaint, to make the United States in any manner a party to this action. The lower court has entered judgment in favor of plaintiffs, declaring, among other things, their ownership of the money in the federal court registry. The appellants urge this court to reverse that judgment, and the logic of their reasoning is that the federal court may not respect the judgment of this court, and may refuse to disburse the money pursuant to such judgment. The answer to this is two-fold: (1) The defendants will not be injured if the United States should refuse to pay the money over upon the determination of the cause by the state court; and (2) the complaint alleges, and the demurrer admits, that the United States will distribute the money pursuant to judgment in this case.

There appearing to be no error committed by the court, and substantial justice demanding that the plaintiffs be awarded the relief prayed for, the judgment will he affirmed.

Reavis, Fullerton and Anders, JJ., concur.