60 P.2d 251 | Wash. | 1936
Respondent brought this action against A.C. Frost, Lewis N. Rosenbaum, Rosenbaum Properties, Inc., a corporation, L. Rein, The Newman Corporation, a corporation, and Wilmington Trust Company, a corporation, as defendants, to recover an alleged balance of five thousand dollars due on a real *374 estate contract made between Townsend and Frost of lots 1 and 2, block 31, Plat of the Second Addition to the Town, now City, of Seattle, as laid off by the heirs of Sarah A. Bell, deceased, located at Ninth avenue and Pike street.
Appellants Rosenbaum and Rein are residents of New York state, the Wilmington Trust Company is a Delaware corporation, and The Newman Corporation and Rosenbaum Properties, Inc., are domestic corporations.
No relief was asked against the Wilmington Trust Company, the complaint alleging that it had been asked to become a party plaintiff and refused. All defendants, except Frost, appeared in the action. No judgment was entered against Frost, and he was a witness for respondent at the trial.
All appellants denied liability, pleaded prior rescission of the contract and failure to tender a marketable title, and asked that this suit be stayed pending the outcome of a prior suit brought in New York by Rosenbaum, against the Wilmington Trust Company, involving the same questions as litigated here; and in the alternative, if the stay order be not granted, asked, by cross-complaint against the Wilmington Trust Company and respondent, for rescission of the real estate contract and recovery of the amount paid on the purchase price. At the trial, a voluntary nonsuit was asked as to the cross-complaint.
No more concise and accurate statement of the issues of fact and law in the case can be made than by setting forth in full the forty findings of fact and thirteen conclusions of law made by the trial court.
"Lots 1 and 2 in Block 31, Plat of the Second Addition to the Town (now city), of Seattle, as laid off by the heirs of Sarah A. Bell, deceased, saving and excepting *376 that portion of said Lot 1 theretofore condemned and appropriated by the City of Seattle for the widening of Pike Street.
"An undivided 1/3 thereof (including an undivided 1/12 of said Frost contract) to a daughter of the said McChesneys; an undivided 1/3 of said residuum, including *388 a 1/12 interest in said Frost contract to another daughter of the said McChesneys; and an undivided 1/3 thereof to the defendant Wilmington Trust Co. in trust for Frank W. McChesney, son of the said McChesneys, with full power on the part of said trust company to sell, invest and reinvest the proceeds of sales. The only real estate owned by the said Clara B. McChesney at the time of her death was her home place in Everett, and immediately upon the said distribution the defendant Wilmington Trust Co. conveyed away the 1/3 of said real estate so distributed to it in trust. The greater portion of the estate of Clara B. McChesney consisted of securities. The trust portion of these securities were immediately, upon such distribution, transferred into the possession of the defendant Wilmington Trust Company at Wilmington, Delaware, where they have since remained.
Appellants have assigned error as to only nine of the findings and all of the conclusions of law.
No evidence whatever was introduced by or on behalf of any of appellants. Although the briefs of appellants are long and discursive, they contain no discussion of any specific finding of fact. The action was begun as one at law, which by the answers and cross-complaint of appellants, was converted into a suit in equity.
[1] The burden is not upon this court as an appellate court, but upon appellants, to show that any finding was contrary to a preponderance of the evidence. There is no such disclosure shown in the briefs, and we shall not search for any. The law is well settled here that, unless this court discovers a preponderance of evidence against the findings, they are never disturbed, but are treated as verities. Automatic Canteen Co. of Washington v.Automatic Canteen Co. of America,
Twenty-two errors are assigned by appellants, which *392 they argue under seven points. Too much space is needed to discuss but briefly the most pertinent and important legal questions. We cannot review the many questions and cases submitted by counsel.
[2] The first point argued by appellants is that respondent cannot maintain this action because he is not the real party in interest. Findings IX and X, not now to be disputed by appellants, fully sustain the first conclusion that, at the time of the commencement of this action and for years prior thereto, respondent was and now is a trustee in good faith of an express trust within the meaning of Rem. Rev. Stat., § 180 [P.C. § 8256], and entitled to commence and maintain this action.
Rem. Rev. Stat., § 180, reads:
"An executor or administrator, or guardian of a minor or person of unsound mind, a trustee of an express trust, or a person authorized by statute, may sue without joining the person for whose benefit the suit is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another."
These findings and conclusions of the trial court are fully sustained by the following of our cases: Doe v. Tenino Coal Iron Co.,
[3] The second point urged is that a stay of proceedings should have been granted pending the determination of the New York case brought by appellant Rosenbaum. Under finding XXXVI, which cannot now be disturbed, respondent in this action is not a defendant in the New York action. In that action, Rosenbaum seeks a personal judgment against the trust *393 company. In this action, respondent seeks a personal judgment on the same contract as is involved in the New York action. It is well settled here, and elsewhere, that a suit to enforce an express trust is a transitory action in personam and can be brought anywhere that jurisdiction may be had of the parties.
The fact that jurisdiction has been acquired in a subsequent case in one state during the pendency of another action in another state does not require the abatement of the later action. We agree with the trial judge in his tenth conclusion of law that for the lower court to grant a stay of proceedings of this case, pending the determination of the New York case, would be an abuse of discretion. That conclusion is fully sustained by our decision in State ex rel. Milwaukee Lumber Co. v. Superior Court,
[4] Appellants' third point is that respondent failed to deliver a marketable title. The main reason assigned by them in support of this proposition is based upon a noncompliance of the trust company with the Washington statutory provisions relating to foreign corporations.
The argument is involved and rather confusing. The Washington statutes concerned are Rem. Rev. Stat., §§ 3855, 3836-2, 3836-5, 3842 [P.C. §§ 4660, 4640-12, 4640-15, 4647], and of the trust act, Rem. Rev. Stat., §§ 3247, 3286-a and 3287. There is no provision in any of these statutes, nor in any statute of this state, that the contract entered into by a foreign corporation, not domesticated or not qualified, shall be void. The utmost the Washington statutes do is to provide for penalties on foreign corporations for noncompliance therewith.
The cases cited by appellants are not applicable, nor is 2 Restatement of the Law of Trusts, §§ 291, 292, 293 *394 and 294. The uniform current of authority is that, under similar statutory provisions, a foreign corporation can take and hold the title to real property situated in a state other than its own; that its title can only be defeated by an action brought by the state for that purpose, and that, prior to such state action, the corporation can convey good title. The law is thus stated in American Restatement of the Law, Conflict of Laws, 266, § 179.
This court has said that our statutes recognize the right of foreign corporations to do business here when they have complied with the statutes relating to the filing of a certified copy of the charter and the appointment of an agent. Contracts entered into by such corporations have never been held to be void.Dearborn Foundry Co. v. Augustine,
[5] Furthermore, had the original deed tendered by respondent to The Newman Corporation been accepted, as found by the trial court, no purchaser would have questioned the grantee's title.
Assuming that the conveyance by the trust company to respondent was in violation of some Washington statute, or had the conveyance been made by the trust company to The Newman Corporation in violation of the statute, nevertheless, the conveyance tendered to The Newman Corporation would have passed good and marketable title as against every one, including the state.
[6] The second reason assigned under the third point rests upon the assumption by appellants that time was of the essence of the contract; and that, since the *395 abstract did not show payment of the estate tax to the government, the grantee was free to rescind on the theory that time was of the essence.
While time was stipulated in the Townsend-Frost contract to be of its essence, because of repeated indulgences to Frost's assignees during a period of four and one-half years, not counting tax delinquencies, time ceased to be of the essence of the contract. It was so held in Ready v. Sound Inv. Co.,
[7] A further argument is made by appellant that the title is defective because respondent had made a prior deed to the trust company. The finding of the trial court is conclusive that the deed from respondent to the trust company was placed in its vault and never recorded, the intent of the parties being not to presently invest title to the property in the trust company, but only to serve the purpose of protecting the interest of Mrs. McChesney and the children of John T. McChesney, deceased, should respondent die or become incapacitated; that the transaction was in accord with the practice of the trust company theretofore and thereafter in transactions of this character and was done in good faith and as a safeguard of the interest of the McChesneys and the trust company.
The law seems to be well settled that it is not necessary that the vendor should be the owner of the land which he sells. It does not necessarily follow that, because the grantors had made a deed to the tract of land, or any portion thereof, to some one else since the execution of the contract, they would not be able to fulfill the conditions of the contract when the time for its performance arrived. Webb v. Stephenson,
[8] The fourth point argued by appellants is that they are not liable because they are assignees of the vendee and did not specifically assume to pay the balance of the purchase price.
The Townsend-Frost contract contained this clause:
"All the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties."
In support of this contention, appellants cite: Osburn v.Dolan,
In the Bimrose case, it was said that, unless there is an agreement to that effect, assumption of the debt by the assignee, on his, the assignee's, part, he could not be held. To the same effect is the Hardinger case, supra.
The trial court found in its twenty-fourth finding, now conclusive, that Rosenbaum himself and Rein expressly agreed to pay the balance of the purchase price, which brings this case within the rule stated in the cases relied upon by appellants. Cf. Brewer v. Rosenbaum,
[9] The fifth point stated by appellants is that the contract was rescinded, and because thereof respondent cannot recover. In their argument, this question is treated as one of rescission actually accomplished; whereas, the issue tendered by them in this action was whether or not, under the circumstances, the court would decree a rescission. This distinction is adverted to in one of the decisions relied upon by appellants, Empey v.Northwestern Pac. Hypotheekbank,
"The action does not proceed upon the theory of a contract already rescinded, but proceeds on the theory that the jurisdiction of a court of equitable cognizance is needed to accomplish that end. It is therefore sufficient to show, as the plaintiffs did in this instance, a willingness to do equity."
This contention is therefore untenable.
[10] Point six maintains that the tender of deeds and other documents subsequent to the date fixed for final payment was unavailing, and their admission in evidence was error. These tenders consisted of the following: The first was a deed from Townsend to The Newman Corporation; and, second, a deed from Townsend to Rosenbaum accompanied by a deed from the trust company to Rosenbaum. Both of these tenders were made in New York prior to the commencement of this action.
The third tender, made after the commencement of this action and prior to the trial, consisted of documents as follows: (a) A confirmatory deed from the Wilmington Trust Company to Townsend, reciting a conveyance by it and Mrs. McChesney to Townsend and a deed from Townsend to the Wilmington Trust Company; (b) resolution of the board of directors authorizing that confirmatory deed; (c) a warranty deed from Wilmington Trust Company to Rosenbaum; (d) certified copy of resolution of the directors of the trust company authorizing an exhibit; (e) resolution of board of directors ratifying the deed of the trust company to Rosenbaum; (f) a deed from the McChesney children to Townsend ratifying the Townsend-Frost contract, dated August 16, 1935; and (g) a deed from the McChesney children to Rosenbaum, which last was also joined in by the trust company.
All of these tenders were muniments of title and authorizations thereof and made before any tender was *398 made by appellants on the trial, either to account for rents, or deliver possession.
During the trial respondent tendered in open court, to cure alleged defects in the title, instruments showing the payment of the government tax, the re-recording of the Townsend-Frost contract, to correct an error in the recording of the notarial seal, and the several deeds tendered with the resolutions, at his own expense.
These tenders by respondent are in conformity with the principles announced in Colcord v. Leddy,
The seventh point asserted by appellants is that the equities of the case are with them. On the contrary, as we said in Rohnev. Horton,
We have considered all of the other errors assigned by appellants and consider none of them merit further, separate, discussion.
There being no conceivable error in the findings, unquestionably they sustain the conclusions of law and the decree.
The judgment is affirmed.
MILLARD, C.J., MAIN, BEALS, and BLAKE, JJ., concur. *399