Barth v. Barth, 29053.

• Decision Date: 02 December 1943
• Docket Number: 29053.
• Citation: 19 Wn.2d 543,143 P.2d 542
• Court: Washington Supreme Court
• Parties: BARTH v. BARTH et al.

143 P.2d 542

19 Wn.2d 543

BARTH v. BARTH et al.

No. 29053.

Supreme Court of Washington

December 2, 1943

Department 1.

Action by Ariel Barth against Frank J. Barth for divorce and confirmation of a property settlement, in which defendant's guardian, appointed after defendant was adjudged insane, was granted leave to defend the action, and A. M. Medalen and wife were made additional defendants as claimants of title to realty which had been original parties' community property. From so much of the decree entered as canceled a deed conveying the realty to additional defendants and ousted them therefrom, they appeal.

Affirmed so far as appealed from.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Little Burgunder & Smith, of Seattle, for appellants.

B. Gray Warner, of Seattle, for respondent.

STEINERT Justice.

Plaintiff commenced an action against the defendant for divorce and for the confirmation of an alleged property settlement made between herself and her husband. Two days after the commencement of the action the defendant husband was adjudged insane, and about two months later a guardian was appointed for his person and property. The guardian, after obtaining leave of court to defend the divorce action procured an order bringing in as additional defendants two individuals who were then in possession, and claimed title by virtue of a recent deed to them, of certain real estate which had been the community property of the plaintiff and the defendant. The guardian thereafter filed a second amended answer in the action, denying the material allegations of the complaint and, by way of further answer, setting up as against the plaintiff a cause of action for divorce from her and for nullification of the alleged property settlement, and also a cause of action as against the additional defendants for cancellation of the deed held by them and for restoration of the property to the defendant. The additional defendants filed a reply denying the allegations of that answer in so far as it applied to them and alleging affirmatively that they had purchased the real property in due course, for value, and without notice of any claim thereto by the principal defendant. Upon the issues thus framed, the cause proceeded to trial Before the court without a jury. The trial court made findings of fact from which it concluded that the prayer of plaintiff's complaint should be denied and that defendant instead should be awarded a decree of divorce; that the alleged property settlement should be set aside and the entire community property divided as then directed by the trial court; that the deed above referred to should be cancelled and the real property therein described be awarded to the defendant as his separate property; and that the additional defendants should be repaid the sum of fifteen hundred dollars, which was the amount they had originally paid for the purchase of the property. A decree was entered accordingly. Plaintiff has not appealed from any portion of the decree. The additional defendants alone have appealed, but only from that portion of the decree cancelling the deed and ousting them from the property in question.

As may be inferred, the case has some very peculiar and unusual features, and it may be stated in the beginning that none of the attorneys appearing upon this appeal had any connection with the case until after the trial in the superior court. The evidence with reference to the issue concerning the deed sought to be set aside is virtually without dispute. Furthermore, the facts relating to the alleged reciprocal causes of action for divorce are not important here except as they bear upon the transaction with reference to the deed. We shall hereinafter refer to the respective parties by name or else, at times, to Ariel Barth, who has not appealed, simply as plaintiff; to the defendant Frank J. Barth as respondent; and to the additional defendants, A.

M. Medalen and Margaret M. Medalen, husband and wife, as appellants.

The plaintiff and the respondent intermarried in June, 1932 or 1933. Respondent had been married Before and had a son who at the time of the second marriage was about six years of age. There is no child of this second union. Some time after their marriage, the plaintiff and respondent acquired the real property involved in this action, located at 514 North 75th street, in the city of Seattle, and described as lot 24 and the west twenty feet of lot 25, block 17 of Hillman's Lake Front No. 2 Addition to that city. Upon this property the parties established their home.

The plaintiff and respondent lived together as husband and wife until June 1, 1942, at which time their community property consisted of household furnishings and furniture, a 1941 Chevrolet automobile, nine or ten United States War Bonds having a maturity value of fifty dollars each, a savings account amounting to about fifty dollars, and an equity of about fifteen hundred dollars in the real property above described which allegedly was worth about fifty-five hundred dollars, but was subject to a mortgage of approximately thirty-nine hundred dollars, held by a savings and loan association in Seattle.

The husband and wife and the young boy lived together fairly amicably until about a year Before the commencement of this action. In that year, however, there were frequent quarrels between the spouses, the causes for which were disputed upon the trial. At any rate, by June 1, 1942, matters had come to such a state that the respondent concluded to get a divorce.

Mr. J. Lael Simmons, of the law firm of Simmons & McCann, had been the attorney for Mr. Barth for many years prior to the latter's second marriage; he had also represented both Mr. and Mrs. Barth in various lawsuits since their marriage.

On June 1st, respondent consulted Mr. Simmons with reference to obtaining a divorce from the plaintiff. In that interview, the respondent told the attorney that he and his wife had been having a good deal of trouble, fighting and quarrelling with each other, and that he had given his wife a beating the Saturday night Before . After some further discussion, Mr. Simmons concluded that the respondent did not have satisfactory grounds for a divorce and so advised his client. At the same time, Mr. Simmons suggested: 'Well, if it doesn't make any difference to you, why don't you let her get the divorce,' to which respondent replied: 'Well, that would be fine. Call her up.' Upon the understanding that he would act as the attorney for Mrs. Barth in such action, Mr. Simmons at once got in touch with her by telephone and requested her to come to his office, which she did on the following day.

In the interview between Mr. Simmons and the respondent on June 1st, they also discussed the matter of a proposed property settlement, and thereupon Mr. Simmons on the same day prepared such an agreement, which in terms provided that plaintiff should 'receive the house and household furniture and furnishings' except respondent's personal effects and keepsakes, 'the house to be otherwise left intact and possession delivered within 15 days;' that respondent should receive as his absolute property 'nine or ten defense bonds owned by the parties,' together with the 1941 Chevrolet sedan; that each party should 'execute such instruments as might be necessary to carry out this agreement;' and that the plaintiff should pay the unpaid balance owing on 'the stove and furniture' and the respondent should pay 'the unpaid balance on the car.' The final paragraph of the proposed agreement reads: 'The parties own no other property and desire this agreement to be approved by the court in the above entitled cause; the plaintiff to pay costs of the divorce action.' (Italics ours.)

During that same interview between the respondent and Mr. Simmons, respondent signed a blank form of statutory quitclaim deed, and there is some evidence that Mr. Simmons signed his name thereto as notary. The instrument as thus executed contained noting, however, except the usual printed provisions with the addition of the date, the signature of the respondent, and the signature of J. Lael Simmons at the end of the notarial certificate.

It is conceded that the respondent did not sign the property settlement agreement at the time of the interview on June 1st, for the reason that he wanted the plaintiff to sign it first; in fact, the agreement is dated June 2nd.

On June 2d, plaintiff went to the office of Mr. Simmons as she had been requested to do and, after some discussion, signed and verified her complaint in this action. At the same time, she also signed the property settlement agreement. Mr. Simmons then called the respondent by telephone and said to him: 'Well, I have got her to sign all right,' and respondent replied: 'All right; I will be right down.' Respondent then went to Mr. Simmons' office on June 2d and, in the absence of the plaintiff, signed the property settlement agreement. At the same time, the complaint was served upon respondent, and service thereof was acknowledged by him on the summons.

It appears from the evidence that for several weeks prior to June 1st respondent had been on the verge of nervous prostration. He was extremely irritable, fidgety, and upset and at times talked irrationally. One of the witnesses testified that he had been informed by Mrs. Barth that this condition had been coming on for four or five months but had grown more acute during the three or four weeks immediately preceding June 1st. It also appears that either on June 2d or June 3d, Mr. Simmons had called a psychiatrist and arranged for an examination of the respondent's mental condition. At any rate, respondent was taken to the Harborview Hospital on June 3d, and on...