44 Wash. 513 | Wash. | 1906
On June 12, 1899, the appellant, Meikle, recovered a judgment for the sum of $699.62 against the respondent August Cloquet, Sr., in the superior court of Lewis county, on a promissory note executed sometime in 1894. At the date of the judgment August Cloquet was a married man, and was then living with his wife on certain real property situated in Lewis county on which they had theretofore filed a declaration of homestead. The real property at the time of the entry of judgment was of the probable value of $5,000. The parties also owned certain personal property, which was appraised later at $664. Mrs. Cloquet died'oh December 16, 1900. Just prior to her death, and during her last sickness, she joined her husband in certain deeds purporting to convey to their children as tenants in common the real property above mentioned, reserving to the grantors and to each of them the use and possession of the property during their and each of their natural lives. These deeds were not delivered during the lifetime of Mrs. Cloquet, but were held by the husband at the time of her death, and recorded by him on August 29, 1904, some years after the date of their execution. On January 12, 1903, August Cloquet filed a petition in the superior court of Lewis county asking to be appointed administrator of his wife’s estate, averring that she had died intestate. On a hearing he was appointed according to his request, but later and before, qualifying, he filed a supplementary petition asking for the appointment .of his son, the respondent Louis Cloquet. Louis Cloquet was thereupon appointed administrator, and duly qualified as
On January 9, 1905, the administrator filed his final account with the estate. In the account he recited the judgment of the appellant against August Cloquet, Sr., above mentioned, but averred that no claim had been presented to the estate for it, and that he.was not advised whether it was or was not a charge against the estate payable out of the property in his possession. He also set forth the property in his hands subject to distribution, and prayed that a time and place be fixed for hearing the account, that due notice thereof be given, and that on such hearing that the court settle and approve his account, and make such distribution of the property as the law required. On filing the account a time and place was fixed for its hearing and the statutory notice thereof given. At the hearing the account of the administrator was approved, and the property ordered distributed without division, one-half to August Cloquet, Sr., and one-half to the heirs at law of Mrs. Cloquet; the judgment of the appellant being disallowed as a claim against the estate because not presented within the time limited by law. This decree was enteied on February 20, 1905.
On March 20, 1905, the appellant brought a common law action against August Cloquet, Sr., on his judgment, averring its due recovery and entry in the year 1899, and that the same had not been paid. Thereafter he asked and obtained leave of the court to file an amended complaint making the heirs-at-law of Mrs. Cloquet and distributees of her estate parties defendant. In this amended complaint the appellant attacks the conveyances above mentioned and the probate proceedings as being fraudulent and void. He alleged that the conveyances were made for the purpose of hindering, delaying and defrauding creditors, and that the probate proceed
The appellant’s judgment against the respondent August Cloquet, Sr., it will be observed, since it was rendered upon a contract entered into prior to the act of 1897, was one capable of being revived and continued, either by a direct action at law brought upon the judgment, or by the special proceeding provided for in §§ 262 and 263 of 2 Hill’s Code. Bettman v. Cowley, 19 Wash. 207, 53 Pac. 53, 40 L. R. A. 815; Palmer v. Laberee, 23 Wash. 409, 63 Pac. 216; Fischer v. Kittinger, 39 Wash. 174, 81 Pac. 551.
The appellant'insists, however, that notwithstanding the action was begun as an action at law upon a judgment, its entire scope and purpose was changed by the amendment permitted by the court, and that the action as prosecuted is in no sense an action to revive or continue a judgment, but that it is one in the nature of a creditor’s bill to set aside certain fraudulent conveyances and proceedings which the judgment debtor and his privies in interest have interposed to prevent the collection of the judgment by execution. The trial court, accepting this view of the action, held that the judgment on which the action was founded became dormant and ceased to be a lien upon any of the respondent’s property at the end of five years from the time of its rendition; namely, June 12, 1904, and was incapable, because not a lien, of supporting a creditor’s bill. The appellant insists in this court .that this is an erroneous view of the judgment. He argues that, inasmuch as the judgment was entered after the passage of the act of 1897, it is governed by that statute,, and that its lien continues for six years after the date of its entry, and conse
But it has seemed to us that if the appellant’s view of the judgment be correct, namely, that it is controlled by the statute of 1897, it does not follow that its lien has been continued by this proceeding. On the contrary, the statute expressly provides that such a judgment ceases to be a lien after the expiration of six years, against either the estate or the person of the judgment debtor, and that no suit, action, or other proceeding shall ever be had upon it by which its duration shall be extended or continued for a greater or longer period than six years from the date of its entry. Laws 1897, p. 52. If the judgment cannot be continued for a longer period than six years by a direct action or proceeding brought for that purpose, it must follow that it cannot be continued by an indirect or ancillary action brought to remove fraudulent conveyances made to cover up property subject to execution under the judgment. We think, therefore, whether the judgment be treated as a judgment capable of revival, or as one under the statute of 1897 which expired absolutely at the end of the six-year period, it was insufficient to support the present action.
But if we were to take the other view of the matter and agree with the appellant that “fraud vitiates everything,” still we must reach the same result. The appellant’s judgment was never a lien upon the homestead of August Cloquet and wife. Smalley v. Laugenour, 30 Wash. 307, 70 Pac. 786. While the appellant might, during the lifetime of his lien, have subjected the homestead to sale for its excess of value over and above the value allowed by statute by complying
Nor do we find any fraud in the probate proceedings. The objection to the notice given to the creditors is that the name of the administrator was signed thereto by his attorneys instead of by himself. While we think the weight of the evidence is against the contention, it would not avoid the proceedings if the fact were otherwise. Since the statute does not expressly require the administrator to personally sign the notice, he may authorize his attorney to sign it in his name and on his behalf. There is no question that the notice was regularly published for the required time under an order of the court, and fully complied with the statute in both form and substance.
There is a claim put forth in the brief to the effect that the conduct of the administrator and his attorney was such as to mislead the appellant, by which he was lured into security and was thereby prevented from presenting his judgment to the administrator, as a claim against the estate. The fault charged against the attorney is that, in answer to a letter from the appellant requesting him to look after the renewal and collection of the judgment, he stated that he was employed by the administrator and could not act for the appellant. This answer was mailed promptly, and it is hard to understand what more the attorney was in honor bound to do. The appellant says that the attorney ought to have informed him of his rights, but surely it would not only have been improper, but would have been presumptious on the part of the attorney to advise him concerning his business after he had refused to accept his offer of employment. The charge against the administrator is not made clear by either the brief or the evidence, but we think there is no cause for the complaint that he misled the appellant. On the contrary, he not only gave the notices required by law to be given, but went to
We conclude, therefore, that the appellant has lost his right to collect his judgment by reason of his own laches, and not through any fault of the respondents. The judgment will stand affirmed.
Mount, C. J., Rudkin, Hadley, Root, Crow, and Dunbar, JJ., concur.