Brydges v. Millionair Club, Inc.
| Decision Date | 21 December 1942 |
| Docket Number | 28675. |
| Parties | BRYDGES et al. v. MILLIONAIR CLUB, Inc. |
| Court | Washington Supreme Court |
Department 2.
Action by Charlotte Brydges and others against the Millionair Club Inc., to recover possession of property under the unlawful detainer statute. Judgment for the plaintiffs, and the defendant appeals.
Judgment affirmed.
Appeal from Superior Court, King County; James T Lawler, judge.
Carl J Smith, of Seattle, for appellant.
Hyland Elvidge & Alvord and Monroe Watt, all of Seattle, for respondents.
This action was instituted by Charlotte Brydges and several others, owners as tenants in common of a tract of improved real estate in the city of Seattle, against the Millionair Club, Inc., a corporation, for the purpose of recovering possession of the property under the unlawful detainer statute. Rem.Rev.Stat. § 812. In their complaint, which was filed September 5, 1941, plaintiffs alleged their ownership of the property; the possession thereof as a tenant by the defendant, at an agreed rental of seventy-five dollars per month; that the rental from March 15, 1941, was wholly unpaid; and that July 24, 1941, plaintiffs had caused to be served upon defendant a notice requiring payment of the rent due within three days from the date of service of the notice. It was further alleged that no rent had been paid, and that plaintiff were entitled to a writ of restitution placing plaintiffs in possession of the property. Plaintiffs asked for judgment for the amount of rent due, and that the amount due be doubled, as provided by statute.
By its answer, defendant admitted the service of the notice requiring payment of rent, but denied plaintiffs' ownership of the property and its possession thereof as plaintiffs' tenant, also denying that plaintiffs were entitled to a writ of restitution.
By way of an affirmative defense, defendant alleged that it entered into possession of the premises under an option to purchase the same from plaintiffs, and not as a tenant; denied that it ever agreed to pay rent for the premises; and alleged that it had purchased from one of the plaintiffs his undivided interest in the real estate, and that it was holding possession of the premises as a tenant in common with the other plaintiffs.
Plaintiffs demurred to this affirmative defense for want of sufficient facts, and October, 2, 1941, after argument, the court entered an order sustaining plaintiffs' demurrer.
December 1, 1941, the action came on regularly for trial Before the court, and resulted in findings of fact and conclusions of law in plaintiffs' favor, followed by a judgment providing that a writ of restitution issue, directed to the sheriff, instructing him to place plaintiffs in possession of the premises. A judgment for rent was also awarded in favor of certain of the plaintiffs, and one plaintiff was dismissed from the action. From this judgment, defendant has appealed.
Error is assigned upon the order sustaining the demurrer to the affirmative defense contained in appellant's answer; upon the admission of certain testimony over appellant's objection; and upon the entry of the judgment appealed from.
As above stated, the action was instituted by the respondents, who alleged their ownership as tenants in common of the premises which are the subject matter of the action. The trial court found that the persons named as plaintiffs in the complaint were, at the time appellant took possession of the property, the owners thereof; that thereafter W. Arthur Smith and W. H. Thompson, as successors in interest of George W. Smith, one of the plaintiffs and one of the tenants in common of the premises in question, conveyed to appellant all their interest in the property; that thereafter Frieda Ahues also conveyed to appellant her undivided interest in the property; that these conveyances were made without the knowledge of the other respondents; and that by these conveyances appellant became the owners of an undivided 25/140ths interest in the property.
These facts caused the removal of George W. Smith as a party plaintiff, as above stated. Respondent Frieda Ahues remained as a party plaintiff, because it appeared that she was entitled to judgment against appellant for a small amount of rent which had accrued in her favor prior to the date of the conveyance by her to appellant of her interest in the property. The trial court awarded the respondents, respectively, judgment for the various amounts of rental due them, based upon their respective interests in the property.
While the evidence was somewhat in dispute, the trial court expressly found that August 6, 1940, appellant rented the premises from respondents on a month to month tenancy, at seventy-five dollars per month, having previously taken possession; that on the date referred to, appellant paid to respondents' agent six hundred dollars, which paid its rent to March 15, 1941; and that appellant had remained in possession of the premises to the date of the trial of this action. The trial court also found that, appellant having paid no rent subsequent to March 15, 1941, respondents, July 24, 1941, caused to be served upon appellant, and posted upon the premises, a notice requiring appellant to pay within three days the delinquent rent or surrender the premises to respondents, and that appellant had neither paid the rent nor surrendered the premises. Finally, the trial court found that appellant was guilty of unlawful detainer of the premises, and that respondents were entitled to immediate possession thereof.
The findings of the trial court are amply supported by the evidence, and appellant assigns no error upon the making of any finding. The facts found, then, must be accepted as established facts in the case. LeCocq Motors v. Whatcom County, 4 Wash.2d 601, 104 P.2d 475. One of appellant's assignments of error does, however, present the question of whether or not the findings of fact support the conclusions of law and the judgment.
The court's finding that the relationship of landlord and tenant existed between respondents and appellant was based upon disputed testimony, and it is not contended in appellant's brief that any evidence was improperly admitted by the trial court over its objection. Under these circumstances, appellant is bound by the court's finding, which, it may be observed, is supported by the preponderance of the evidence.
Appellant assigns error upon the order sustaining respondent's demurrer to its affirmative defense above referred to, citing authorities to the effect that ordinarily a tenant may show that he has acquired the title of his landlord, or that by some other means, such as a decree of specific performance, or purchase at a judicial or execution sale, he has become the owner of the property. The gist of appellant's affirmative defense was that it had purchased an undivided interest in the premises from one of the respondents, and at the time of answering, was 'holding the possession of said premises as a tenant in common.'
On the trial, it was admitted that appellant had purchased the interest of George W. Smith in the premises, and also the interest of Frieda Ahues, and if such facts constituted any defense to the action, appellant has the full benefit thereof.
Appellant vigorously contends that this action, being one in unlawful detainer, may not be maintained by respondents, for the reason that appellant was, prior to the institution of the action, and at all times since has been, a tenant in common of the premises with respondents. Appellant obtained possession of the premises August 6, 1940, long Before it became a tenant in common by acquiring the interest of George W. Smith in the real estate. As found by the trial court, appellant entered into possession of the premises as respondents' tenant, and as the tenant of the two persons whose interest in the premises it subsequently acquired. It is undoubtedly the law, as argued by appellant, that a tenant may, under certain circumstances, acquire by deed or other conveyance the title of this landlord, and that it frequently, though not always, follows that the lease, being a lesser estate, becomes merged with the fee title. Appellant argues that a summary proceeding such as an action in unlawful detainer cannot be maintained between tenants in common, and that an action in partition is the only remedy whereby disputes between tenants in common may be adjudicated.
In this connection, appellant cites the opinion of this court in the case of Hamilton v. Johnson, 137 Wash. 92, 241 P 672, 675, which was an action in partition. The defendant contended that she and the...
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