Baker v. Murrey

• Decision Date: 20 February 1914
• Court: Washington Supreme Court
• Parties: BAKER et al. v. MURREY et ux.

138 P. 890

78 Wash. 241

BAKER et al. v. MURREY et ux.

Supreme Court of Washington

February 20, 1914

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by F. W. Baker and others against M. E. Murrey and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. W. A. Nichols, of Tacoma, for appellants.

MOUNT J.

On July 20, 1909, the Puget Sound Land Development Company, a corporation, entered into a written contract with M. E Murrey, by which that corporation agreed to sell to Mr Murrey certain real estate for the price of $5,400. The contract provided that the purchase price should be paid in installments. It also provided that time was of the essence of the contract, and, in case of the failure of the vendee to make the payments, the vendor, at its election, might terminate the contract, and forfeit all payments made thereon. At that time M. E. Murrey was married and living with his wife. Mrs. Murrey declined to sign and objected to her husband entering into the contract. When the contract was executed, Mr. Murrey paid to the vendor in accordance with the terms of the contract $1,074. It is conceded that this money was the community funds of Murrey and wife. Thereafter on February 23, 1910, the Puget Sound Land Development Company assigned all its right, title, and interest under the contract to F. W. Baker and wife and F. D. Black and wife. After the assignment of the contract, Mr. Murrey continued to make payments until he had paid something over $2,000 thereon. He then neglected or refused to make further payments, when this action was brought by Baker and wife and Black and wife to recover the entire unpaid balance upon the contract. The cause was tried to the court and a jury. At the conclusion of the evidence, which shows the facts above stated, the court concluded that the only question in the case was one of law, to wit, whether the contract could be enforced against the community of Murrey and wife, and therefore dismissed the jury, holding that the plaintiffs could maintain their action against the community of Murrey and wife. Judgment was thereupon entered in favor of the plaintiffs for the amount due at that time under the contract. The defendants, Murrey and wife, have appealed from that judgment.

Two questions are presented by the appellants upon the brief: First, did these appellants as a community enter into the contract sued upon? and, second, are the respondents the owners of the contract and the land sold so as to enable them to maintain the action?

It is argued by the appellants that, because the contract was signed by M. E. Murrey only, and because Mrs. Murrey objected to her husband entering into the contract, that therefore the contract was the separate obligation of the husband, and the community is not bound thereby. This is the substance of the argument of the appellant.

The statute provides (Rem. & Bal. Code, § 5917) that: 'Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.'

The two preceding sections referred to provide that property acquired by either the husband or the wife before marriage or afterwards, by gift, bequest, devise, or descent, is the separate property of the husband or wife so acquiring such property. All other property is made community property by the provisions of section 5917, supra.

It is conceded in this case that the appellant M. E. Murrey entered into this contract. It is also conceded upon the record that the first payment of $1,074 was made from community funds. It is also admitted upon the record that all the property belonging to Murrey and wife was acquired by them after their marriage. It is plain, therefore, that this contract, whether considered as personalty or realty, is community property under the statute, unless the mere fact that Mrs. Murrey objected to the purchase of the property or to the contract entered into by Mr. Murrey makes it the separate property of the husband. We are satisfied that such objection of the wife does not change the character of the property acquired. This is plain, we think, from the statute above quoted.

In the case of McDonough v. Craig, 10 Wash. 239, 38 P 1034, where a suit was brought upon promissory notes executed by the husband in the prosecution of community business, this court said: 'There are but two questions of substance which seem to us to be involved in the decision of this case; one is as to whether or not the community property is liable for a debt incurred for its benefit by the husband alone, and the other is as to the effect upon the status of such debt of the giving of a...