45 Wash. 175 | Wash. | 1906
This is a proceeding to effect a redemption of real estate from execution sale, in behalf of an insane person. The history of the case is as follows: In 1891 Sylvester Cohalan executed and delivered to one Sorenson a promis
A few days after the appointment of the guardian, he brought this proceeding. He filed what he called a petition to vacate judgment. The petition is very long and circumstantial in its statements, reciting much of the history hereinbefore outlined. It was originally intended as a petition to vacate the judgment under Bal. Code, § 5153 (P. C. §' 1033), and particularly under subdivisions 3, 4, 5, and 7, thereof. The petition alleged that Cohalan was at all times during the events hereinbefore narrated an insane person; that at the time summons was issued in the Steenstra suit and for a long time prior thereto, he was insane and wholly incapable of understanding what was meant by the service of process, and incompetent to realize the effect of the judgment, or to know that a judgment would be rendered against him; that he was likewise insane and wholly incompetent when the foreclosure suit was brought, when judgment therein was rendered, when the sale was made, and that he has at all times since continued to be insane; that his insanity was well known to all the participants above named; that the scheme for obtaining the said Steenstra judgment was a fraudulent conspiracy for the purpose of enabling redemption to be made
At the conclusion of the petitioner’s testimony, the defendants moved for a nonsuit, on the ground that no cause for vacation of the judgment was shown within the statute. The court then construed the petition as a bill in equity and held that, inasmuch as the parties interested were all before the court, a prima facie cause for relief had been shown, and denied the nonsuit. The defendants’ counsel, with this knowledge of the court’s view of the pleading, did not ask leave to file an answer thereto, claimed no surprise by reason of the construction placed upon the pleading by the court, and at once proceeded to introduce record evidence in opposition to the allegations of the pleading and the evidence offered by the plaintiff. Judgment was entered to the effect that the Steenstra judgment shall be vacated; that the subsequent redemption of the premises from the foreclosure sale shall be set aside; that the deed from Harrington to McCanna shall be set aside, and that the guardian shall be permitted to redeem from the foreclosure sale upon the payment to Harrington of the full amount paid by him to effect the former attempted redemption, together with the amount paid by him for the Steenstra judgment, the total sum of all of which is stated in the decree to be $558.17. This privilege of redemption must, however, be exercised by the guardian within ninety days of the date of the judgment. The defendants have appealed from the judgment, with the exception of defendant Steenstra, who has not appealed.
It is assigned that the court erred in overruling the demurrer to respondent’s pleading, and in denying the motion foi nonsuit and dismissal at the close of respondent’s testimony. We have seen that at the trial the court construed the peti
The court found that, at all times during the events heretofore stated, said Cohalan was insane,-and the finding is abundantly j ustified by the evidence. The findings also show that Jerome Harrington knew of the insanity, and that he instigated the procurement of the Steenstra judgment against the incompetent so that he might purchase the judgment; that the purchase thereof, the filing of the transcript in the office of the clerk of the superior court, and the redemption of the land by Jerome Harrington, all resulted from a design on the part of said Harrington to cheat and defraud said Cohalan and to obtain his farm, worth between $3,000 and $4,000, for the sum of $553.17; that the attempted conveyance of the real estate by Jerome Harrington to the McCannas was also in furtherance of said design, knowing that Cohalan was insane. These findings we think are all sustained by the evidence and should not be disturbed.
The conclusions of law and judgment properly follow. Under the circumstances shown by the court’s findings, it
Mount, C. J., Root, Fullerton, Dunbar, and Crow, JJ., concur.