Biehn v. Lyon
Decision Date | 02 February 1948 |
Docket Number | 30231. |
Parties | BIEHN v. LYON. |
Court | Washington Supreme Court |
Department 2
Action by Louisa M. Walker Biehn against Marie Beaurman administratrix with will annexed de bonis non of the estate of John Biehn, deceased, to recover on a claim which had been made by plaintiff against the deceased's estate, and which had been rejected. The trial court entered an oral decision in favor of the plaintiff. From an order granting a new trial, the plaintiff appeals, and Burton W. Lyon, Jr., as administrator with will annexed de bonis non of the estate of John Biehn, deceased, is substituted as respondent.
Order affirmed.
Appeal from Superior Court, Pierce County; Ernest M. Card, judge.
Robert B. Abel, of Tacoma, for appellant.
Burton W. Lyon, Jr., of Tacoma, for respondent.
On September 30, 1938, John Biehn, a widower, then the owner of the following described real property situate in Pierce county, Washington: 'Lots Five (5) and Six (6) in Block Seventeen Hundred Sixteen (1716) as the same are shown and designated upon the map entitled, 'Map of New Tacoma Washington Territory',' on which property there was a house known as 1710 south Yakima avenue, Tacoma, Washington entered into a contract with W. J. A. Simpson and Edna Wallace Simpson, his wife, whereby Biehn agreed to sell and they agreed to buy the property referred to for $1400. This contract was filed for record in the office of the auditor of Pierce county on October 9, 1944, and was recorded in volume 760 of deeds, at page 349.
On September 30, 1938, the date the contract was executed, it was deposited in the United Mutual Savings Bank, of Tacoma, for collection, and there was then a balance due of $1,095.25. The bank collected $12.50 a month, and, at the time of trial on December 19, 1946, there was a balance due of $198.38.
On March 27, 1942, John Biehn married Louisa M. Walker, but, on the preceding day, March 26th, he quitclaimed all of his interest in the real property above described to his intended bride for an expressed consideration of $10. There is no evidence as to what balance was due on the contract as of that date. She testified that she did not know at that time that the property had been sold, but the circumstances were such as to negative her contention that she was a bona fide purchaser and no evidence to support her status as such was presented.
Within two and one-half years, on September 22, 1944, Louise M. Walker Biehn commenced an action for divorce. (The files are an exhibit in this case.) The only allegation concerning property in the complaint in that proceeding was as follows:
In his answer and cross-complaint, John Biehn alleged: 'That the real estate mentioned in plaintiff's complaint has been the home of the parties hereto since their marriage and is community property.' (It is clear that the real estate referred to in the complaint and answer is not the property referred to in the first paragraph of this opinion.)
He also alleged that he '* * * owned and had in his possession a real estate contract with a balance of about $460.00 due thereon; a note and insurance policy with a balance due on the note of about $660.00, * * *.'
We are somewhat puzzled by the form of the interlocutory decree and the findings of fact and conclusions of law made and entered on December 21, 1944. The decree, instead of being based on the findings and conclusions, apparently was prepared first, and the findings and conclusions refer to statements and descriptions in the decree. The only finding of fact that referred to property was the following: 'That the real estate mentioned in the complaint and described in the decree, has been the home of the parties herein since their marriage and is the separate property of the plaintiff.' (Italics ours.)
The only conclusion of law referring to the property of the parties was as follows: 'That the real estate described in the decree should be set aside to the plaintiff as her sole and separate property, and that the contract and note referred to in the decree should be set aside to the defendant.' (Italics ours.)
The interlocutory decree awarded certain property, specifically described by metes and bounds and located in Thurston county, to Mrs. Biehn, and then contained the following provision: 'It is further ordered, adjudged and decreed: That one certain land contract entered into between John Biehn, a widower, and W. J. A. Simpson and Edna Wallace Simpson, and filed for record in Volume 760 of deeds, at page 349, on the 9th day of October, 1944, be and the same hereby is set over to the defendant as his sole and separate property.'
It will be observed that this is the contract covering the real property which was referred to in the opening paragraph of this opinion.
The interlocutory decree was approved by the attorneys for both parties, and it was not appealed from. A final decree was entered on the tenth day of July, 1945, wherein the interlocutory decree was 'in all things confirmed and made final,' and this likewise was approved by the attorneys for both parties.
The date of John Biehn's death does not appear, but it is conceded that Marie Beaurman was appointed administratrix of his estate and that, on July 23, 1946, Louisa M. Walker Biehn filed a claim against the estate in the sum of $1400 'for payments collected on contract of sale' heretofore referred to. This claim was rejected on September 9, 1946.
The present action was commenced against Marie Beaurman, as administratrix, on the rejected claim. It appears from statements made by her counsel while discussing the judgment to be entered, that appellant was attempting to recover only the payments made on the contract subsequent to the quitclaim deed from Mr. Biehn on March 26, 1942, and it is difficult to see on what theory she could recover for payments on the contract made prior to that date.
The evidence disclosed that all payments on the contract had been made to the United Mutual Savings Bank and that all the money collected prior to his death had been paid to John Biehn, except four payments of $12.25 each (representing monthly payments of $12.50 each less a 25 cent collection charge) which had been delivered to Mrs. Biehn between August 30, 1944, and November 27, 1944. It is to be noted that she received no payments after the entry of the interlocutory decree.
At the conclusion of the trial, the trial court entered an oral decision indicating that Mrs. Biehn would be permitted to recover $1,095.25 (the balance of the contract on September 30, 1938), less the $49 she had received in the four payments of $12.25 each and less the $198.38 which was still due on the contract at the time of trial and which the trial court indicated she would be entitled to receive when and if paid.
Thereafter, a motion for new trial was interposed on two grounds:
The trial court thereafter filed a memorandum decision stating that it did not adhere to the decision as orally announced at the conclusion of the trial and would grant the motion for a new trial. The trial court expressed the view that the interlocutory decree of December 21, 1944, was sufficiently definite and certain in its provisions to vest the contract and the right to receive payments thereunder in Mr. Biehn; and as to payments received prior to that date, Mrs. Biehn was estopped to assert a claim. The formal order granting a new trial was entered February 6, 1947, and did not state any grounds, the pertinent portion of the order being: 'It is hereby ordered, adjudged and decreed, That the defendant's motion for a new trial be and the same is hereby granted, and a new trial of the above entitled action is hereby ordered.'
From the order granting a new trial this appeal is taken. Subsequent thereto, Marie Beaurman died and it was stipulated that Burton W. Lyon, Jr., as administrator with will annexed de bonis non of the estate of John Biehn, deceased, sould be substituted as respondent.
We fail to see what cause for complaint the appellant has. There is and was no judgment in her favor. The trial court was at liberty to change its ruling, as announced in the oral decision, at any time prior to the entry of a judgment: Russell v. Schade Brewing Co., 49 Wash 362, 95 P. 327; Ritter v. Johnson, 163 Wash. 153, 300 P. 518, 79...
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