31 Wash. 43 | Wash. | 1903
The opinion of the court was delivered by
— This is the second appeal in this cause. The opinion of this court on the former appeal is reported in 20 Wash. 479 (55 Pac. 629), and, as therein stated, two causes of action are attempted to he set up in the complaint: The first, to subject the premises in question to a lien for plaintiff’s support; and the second, to cancel and set aside a conveyance of the premises .made to Jacob Patton and Ida Payette Patton, and also to cancel and set aside a mortgage upon the premises given by Jacob and Ida Patton to the defendant Jacobus. For a second cause of action the complaint alleges, in substance, among other things, that on the 9th day of March, 1882, the plaintiff, in order to secure for himself for the remainder of his life protection and support at the hands of his daughter, Ida Payette Patton, and her husband, Jacob Patton, both of
“Plaintiff bases his right to a lien upon the land for support and maintenance upon a decree of the superior court of Lewis county entered in March, 1896, in a suit-then pending between the present parties, with the exception of the respondent Jacobus, who was not joined in that action. That action was based upon an alleged failure to furnish support prior to the year 1895. The court denied a rescission, but entered a decree which recited that-plaintiff was given a right to a lien upon the premises for the support to which he was entitled for the year 1893 and subsequent years. Appellant insists that this decree established his right to a lien, and that the question is res ad judicata as to respondent Jacobus, although he was not a party to that suit, and bound him, as the privy of the grantees Patton and wife. The conclusion we have reached regarding the other cause of action set up in the*48 complaint makes it unnecessary to determine the effect of the former decree as regards the question of plaintiff’s right to a lien.”
It will thus he seen that the only question which was presented for consideration and not determined on the former appeal was simply the effect of a decree of the superior court granting the plaintiff a right to a lien. And we think the court was fully justified in assuming that, if the complaint stated facts sufficient to entitle the plaintiff to a cancellation of his deed, it was a. matter of little or no consequence whether or not he was also entitled to a lien. Upon the question whether the averments of the complaint entitled the plaintiff to a rescission, we there said:
“We think the demurrer was improperly sustained as to the second cause of action. The jurisdiction of a court of equity to cancel a conveyance made by a parent to a child, when the child fails to furnish the support provided by the agreement constituting the consideration for the conveyance, is well established. ... It appears from the complaint in the present case that the sole consideration for the conveyance from the plaintiff to his daughter and her husband was their agreement to support and maintain him. The duty to do so was and became a personal and continuing one. The obligation was not assignable, but to be performed by them only. -The mortgage executed by the grantees to the respondent Jacobus must be given the same effect as a deed, and it is well settled that, where a child attempts to transfer and assign this personal obligation for maintenance which he owes to his parent, the parent has a right to a rescission and cancellation of the conveyance.”
Tor the foregoing reasons, and the further reason that the covenants of the grantees to support and maintain the plaintiff were personal and died with them, and that the happening of that event put an end to the obligation, this court concluded that, upon the allegations of the com
It was there claimed by the defendant Terrier (appellant here), on the first appeal, that the decree In the foimer case constituted a bar to plaintiff’s recovery in this action, hut the court held that this action was not barred thereby for the reason that the rescission was claimed in the other action solely upon the ground of failure to support, and that the effect of the conveyance to respondent Jacobus, or of the death of the grantees, appeared not to have been considered or determined by the court in that action. The cause was accordingly remanded to the superior court, with directions to overrule the demurrers to the second cause of action. Upon receiving the remittitur from this court, the court below set aside the order of dismissal and entered an order in accordance therewith. The defendant Terrier then filed his answer denying that the defendants had not boarded the plaintiff, or furnished the supplies .mentioned in the deed for the years 1893, 1894, 1895, and 1896, and that a consideration of one dollar was not paid for the deed, and setting up the proceedings in the action brought by plaintiff in 1895 against all the defendants herein, except Jacobus, including the judgment therein denying a rescission and cancellation of the plaintiff’s deed and awarding costs to the defendant Terrier, and alleging that from the date of the execution of the deed, in 1882, Jacob Patton and Ida Payette Patton, their minor children, and the defendant Terrier, as administrator, had been in possession of the premises in controversy, claiming the same adversely to the plaintiff. It was also alleged in the defendant’s answer that Ida Payette Patton died in August, 1891, and Jacob Patton died in March, 1892, and that the defendant has been administrator of their estates since April, 1892;
A demurrer was filed by the plaintiff to the answer of the defendant Perrier, and also a motion for judgment on the pleadings, and at the hearing, the demurrer having been withdrawn, the court granted .the plaintiff’s said motion, and the answering defendant excepted. After announcing his decision, the judge made and filed his findings of fact and conclusions of law, and a decree was thereupon entered, rescinding and cancelling the deed
The appellant Perrier did not except to the findings of fact made by the superior court, or print the same in his brief, and for that reason the respondent moves to dismiss the appeal. But, inasmuch as no evidence whatever was taken or offered in the case, and the findings of fact were in effect but a repetition of the allegations of the complaint, and no claim of error is based thereon, we think that the learned counsel for appellant properly regarded such findings as immaterial and exceptions thereto unnecessary. The motion to dismiss is denied.
The learned trial judge found in the present case, as conclusions of law: (1) That the defendant Perrier has denied none of the material allegations of the second .cause of action; (2) that the second further and separate answer to said second cause of action contains nothing now material as a defense, and nothing that the court can legally consider in the determination of this cause; (8) that the covenants of the grantees, Ida Payette Patton and Jacob Patton, to support and maintain the plaintiff, were personal and died with them, and their death put an end to the obligation; (4) that the admission of the death of Ida Payette Patton and Jacob Patton eliminated the defense set up by the defendant J. ‘W. Perrier; and (5) that the plaintiff is now entitled to be revested with the title to the premises involved herein (describing them), and entitled to judgment accordingly, and to his costs and disbursements herein legally expended. Exceptions were properly saved to these conclusions. It will be observed that the foregoing conclusions of law are largely based upon the opinion of the court in this cause on the other appeal. It is insisted by his counsel that the answer of the appellant denied material allegations of the plain
The main contention, however, of the appellant is that, the judgment in the other action constitutes a complete bar to the respondeut’s recovery in this suit, and several decisions of this court and others are cited in support of the proposition that the plea of res judicata applies as a general rule not only to questions upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time. We do not dispute the general doctrine contended for by appellant, but it must be borne in mind that this same point was made in the brief of appellant on the former hearing, and was then decided adversely to the contention of appellant upon the grounds that, as
Under the admissions of the answer, we feel satisfied that the respondent was entitled to a cancellation of his deed, and the judgment is therefore affirmed.
Dullerton, C. J., and Mount, Dunbar and Hadley, JJ., concur.