100 Wash. 119 | Wash. | 1918
Thisaction was brought by appellants to quiet their title, as against defendants Augusta Miller and Jacob Miller, her husband, to the west half of section 9, township 22, north, range 38 east W. M. The complaint, which was filed on March 3, 1916, alleged that, for more than ten years next preceding the commencement of the action, plaintiffs, as a community, have been, and now are, the owners in fee, and in open, exclusive, notorious and uninterrupted possession of the premises; that the defendants, Augusta Miller and
After a trial upon these issues, the court made finding and decree in favor of the defendant, dismissing plaintiffs’ action, and adjudging Augusta Miller to be the owner of a 1-16 interest in the premises, subject to a life estate of Michael Mielke therein, exclusive of the improvements placed thereon by plaintiffs, after deducting the interest of plaintiffs by virtue of the payment by them of the sum of $1,300 on the purchase price of said lands. The plaintiffs have appealed.
The essential facts found by the trial court, and those sustained by the preponderance of the evidence, are these: For many years prior to the year 1901, Michael Mielke and Karoliene Minni Mielke were husband and wife, owning as a community, real and personal property in Lincoln county, Washington, which relationship continued until August 18, 1904, when the wife died testate. By her will, which was duly ad-
The will of Karoliene Minni Mielke named her surviving husband, Michael Mielke, as the executor thereof. In the inventory and appraisement filed by him, the property described in the contract of purchase was listed as an asset of the estate, and on December 19, 1904, the interest of the estate therein was valued by the appraisers at. $1,400. Thereafter, and on November 6, 1911, said executor filed in the probate proceedings his petition for an order of solvency of the estate of his deceased wife, wherein he alleged that the inventory theretofore made was true and correct; that
There is testimony in the record tending to show that this land was purchased with the intention that it should become the property of the appellant Louis H. Mielke; that the initial payment was advanced by the parent community with the understanding that, when the money was repaid, the property would be given to the son—a claim which receives some support in the circumstance that the deed was subsequently executed and delivered to the appellants, and the further fact that all of the devisees except respondent have quit-claimed their interest in the land to appellants; that all payments, except the initial payment, including interest and taxes, were made by appellant, and that improvements in excess of the value of $5,000 were placed on the land by appellants. However, much of the testimony in this respect is unsatisfactory. The son’s statement as to the repayment of the purchase money is not supported by any receipt, voucher or written memoranda, nor is any specific date given when such payment was made, neither was his wife called to verify the assertion, although they were married and living upon the premises more than a year before the mother’s death, and it is not contended that the purchase money was repaid until subsequent to the happening of that event.
It seems unreasonable that the sum of $750 could have been paid by appellant Louis Mielke from the
At the time the cause was tried, the father was advanced in years, uncertain of memory, and the greater part of his evidence was given through the aid of an interpreter. We are not disposed to reflect upon the multitude of inconsistencies that characterize his testimony, or to censure his course of conduct, other than to say that, under the circumstances disclosed by the record, the trial court did not abuse its discretion in refusing the findings requested by appellants based
Appellants’ suit was brought to quiet their title by virtue of their adverse possession for the period of more than ten years prior to the commencement of the action. Such claim cannot prevail as against the interest of respondent, whose estate and right of possession must remain in abeyance during the lifetime of the surviving husband of the deceased testatrix.
But it is urged by appellants that the contract of purchase and the oral agreement between the parents and their son constituted a resulting trust which should be established in his favor upon proof of the repayment of the purchase money advanced by the community estate of the deceased and M. Mielke. It seems this question is first raised by appellants in the opening brief on this appeal. The cause was tried in the lower court upon appellants’ theory of ownership by adverse possession. No issue of a resulting trust in plaintiffs’ favor was tendered or considered in the trial below. Causes should be tried upon the issues presented by the pleadings. Counsel should know, or ascertain in advance of the trial, the relief which the known facts will justify, and try the case in accordance with the rules of established procedure. The practice of initiating in this court the trial of issues for the benefit of unsuccessful litigants will not be tolerated.
Finding no claim of error that merits a further discussion, and being satisfied that, under the circum