Boyer v. Robison

• Decision Date: 17 July 1906
• Citation: 86 P. 385,43 Wash. 97
• Parties: BOYER et al. v. ROBISON.
• Court: Washington Supreme Court

86 P. 385

43 Wash. 97

BOYER et al. v. ROBISON.

Supreme Court of Washington

July 17, 1906

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Action by Arthur Boyer and others against J. L. Robison. From a judgment for plaintiffs, defendant appeals. Affirmed.

Brooks & Bartlett, for appellant.

Garrecht & Dunphy, for respondents.

RUDKIN J.

This was an action to quiet title. The complaint alleged that the plaintiffs were the owners in fee, and lawfully seised and possessed of the premises in controversy, as tenants in common; that the defendant claimed an estate or interest therein adverse to the plaintiffs; and that the claim of the defendant was without right. The defendant appeared in the action, and demanded a bill of particulars of the claim set forth by the plaintiffs, an abstract of their title, and also a particular statement as to the adverse claim of the defendant. The motion was denied. The defendant then moved to make the complaint more definite and certain by setting forth the nature and duration of the plaintiffs' estate, the character of their possession whether actual or constructive an abstract of their title, and the nature and character of the estate or interest claimed by the defendant. This motion was likewise denied. A demurrer was next interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action, but the demurrer was overruled. The defendant then answered, denying each and every allegation of the complaint, and alleging affirmatively the nature and extent of his own adverse claim. A reply was filed by the plaintiffs to the affirmative portions of the answer. During the trial a supplemental answer was filed, alleging that the plaintiffs had conveyed a portion of the land described in the complaint to third persons since the commencement of the action. On these issues the court gave judgment in favor of the plaintiffs according to the prayer of their complaint, except as to lost 9 and 10 of block 25, of Mountain View addition to the city of Walla Walla. From this judgment the defendant appeals.

The demurrer to the complaint was without merit, and the court did not abuse its discretion in denying the demand for a bill of particulars, or the motion to make the complaint more definite and certain. The claim of the respective parties was evidenced by written instruments and records, and there is no pretense that the appellant was surprised or misled by the claim of title disclosed by the respondents, or by any lack of information as to the nature of his own claim. The fact that the respondents conveyed a portion of the land in controversy after the commencement of the action and before the trial, did not defeat their right to prosecute the action to final judgment. Box v. Kelso, 5 Wash. 360, 31 P 973. That case is not overruled, as contended, by Baker v. Northwest Building, etc., Co., 33 Wash. 677, 74 P. 825. In the latter case the court had under consideration the right of the assignee to be substituted in the place of the plaintiff, and not the right of the plaintiff to prosecute his action to final judgment as against the defendant after the assignment. Furthermore, in this case, the respondents retained an interest in the property, notwithstanding their conveyance, because a portion of the purchase price was withheld until they should remove the cloud from their title in this proceeding. The appellant's claim to the property arises out of the following facts: He contends that one F. D. Boyer acquired an equitable interest in a part of the property described in the complaint under and by virtue of certain deeds from his mother, Sarah E. Boyer, to his brother E. H. Boyer, and that the appellant acquired a lien on such interest by virtue of certain attachment proceedings set forth in the answer and offered in evidence. The nature of the claim of F. D. Boyer, arising out of the deeds from his mother to his brother E. H. Boyer, can best be described in the language of Mr. Gose, a witness for the appellant, and legal adviser to Mrs. Boyer at the time of the execution of...