Brownfield v. Holland

• Decision Date: 11 April 1911
• Citation: 114 P. 890,63 Wash. 86
• Court: Washington Supreme Court
• Parties: BROWNFIELD v. HOLLAND et al.

114 P. 890

63 Wash. 86

BROWNFIELD v. HOLLAND et al.

Supreme Court of Washington

April 11, 1911

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by C. W. Brownfield against Henry A. Holland and another executors of Solomon J. Holland, deceased, and another. From a judgment for plaintiff, the executors appeal. Affirmed.

Robertson & Miller, Cohn, Rosenhaupt & Blake, and W. E. Southard, for appellants.

Burcham & Blair and D. W. Bailey, for respondent.

GOSE J.

On the 7th day of June, 1905, the plaintiff leased certain business property in the city of Pendleton, Or., to S. J. Holland and J. F. O'Meara, for the period of five years, beginning on the 10th day of June, 1905, and ending on the 10th day of June, 1910. The tenants Holland and O'Meara, by the terms of the lease, expressly agreed to take possession of the property on the 10th day of June, 1905, and to 'pay as rental therefor the sum of $105 per month in advance on the 1st day of each and every month during the period of five years.' The lease was not acknowledged. The pleadings admit that the tenants entered into the possession of the premises under the lease and made payments of rent; admit that on the 24th day of August, 1907, S. J. Holland died testate; that at the time of his death he was a resident of Spokane; that the defendants Holland were appointed and are acting as executors of his estate; and that his estate consists of property real and personal in Spokane county. The purpose of the action is to recover a judgment against the executors for rent accruing after the death of the testator. The complaint alleges and the answer denies the presentation of the claim. The case was tried to the court, and it found that the lease was made as alleged in the complaint, that the tenants entered into the possession of the leased premises under the lease, made payments of rent thereunder, 'and at all times since have been and now are in possession of the said premises under the terms of the said lease.' The court further found that the claim was presented to the executors, and by them rejected. A judgment was entered against the executors for the amount of the unpaid rent as alleged in the complaint. The executors have appealed. A demurrer was interposed to the complaint and overruled.

The several contentions of the appellants may be epitomized as follows: (1) That upon the death of one of two joint debtors the right of action is against the survivor only; (2) that the primary liability is upon the survivor, and that the respondent should have alleged and proven his insolvency as a condition precedent to a right of action against the personal representatives of the deceased; (3) that an executor cannot be joined with the co-obligor of his testator in a suit for rent which accrued after the death of the latter; (4) that there can be no recovery because the lease is not acknowledged, and was not signed by the wives of the parties (5) that the claim was not properly presented to the executors; and (6) that the judgment should have been entered against both the executors and O'Meara.

In its final analysis the first two contentions rest upon the theory that the common law as to joint contracts obtains in this state. At common law the death of a joint debtor terminated his liability, and, whilst no action at law could be brought against his estate, a recovery could be had in equity upon a showing that the survivor was insolvent. In Potts v Dounce, 173 N.Y. 335, 66 N.E. 4, and kindred cases, it was held that the statute gave a right of action at law, but that the insolvency of the survivors must be alleged and proven. The court said: 'To hold otherwise would be to lose sight of an essential distinction between the engagement of a joint debtor and that of a joint and several debtor.' The common-law rule was based upon the ground that a judgment could not be rendered against the survivor and the personal representatives of the deceased because one was to be charged de bonis propriis and the other de bonis testatoris. The strict rules of the common law as applied to joint debtors and joint tenancy are no longer controlling in this jurisdiction.

The reasons for the rule have been abrogated by statute, and the rule ceases when the reason has ceased to exist. The doctrine of survivorship between joint tenants has been abolished. Rem. & Bal. Code, § 1344. Actions are prosecuted in this state by and against the real parties in interest, and all persons interested in the cause of action or necessary to the complete determination of the questions involved must be joined as plaintiffs or made defendants accordingly as their interests appear. Rem. & Bal. Code. §§ 179, 189. We have but one form of action for the enforcement of, or the protection of, private rights and the redress of private wrongs, and it is known as a 'civil action.' Rem. & Bal. Code, § 153. Actions for the recovery of or for the possession of property and all actions resting upon contract may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates. Rem. & Bal. Code, § 1535. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when justice requires it, determine the ultimate rights of the parties on each side as between themselves. Rem. & Bal. Code. §§ 406, 407. If the action is against joint debtors, a judgment may be entered against the defendants served unless the court otherwise directs, and it may be made enforceable against the joint property of all the defendants. Rem. & Bal. Code, § 236, subd. 1.

The intention of the lawmakers is the law, and the office of construction is to discover that intention and make it effective. If the reform procedure accomplished its purpose it is obvious that the statutes to...