Burke v. Bladine

• Decision Date: 11 January 1918
• Docket Number: 13848.
• Citation: 99 Wash. 383,169 P. 811
• Parties: BURKE et al. v. BLADINE et al.
• Court: Washington Supreme Court

169 P. 811

99 Wash. 383

BURKE et al. v. BLADINE et al.

No. 13848.

Supreme Court of Washington, En Banc.

January 11, 1918

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by Emma Burke and another against Ed. Bladine and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

C. S Goshert and Alfred Gfeller, both of Seattle, for appellants.

Saunders & Nelson and Karr & Gregory, all of Seattle, for respondents.

MAIN J.

By this action the plaintiffs seek to have set aside a judgment in an action to quiet title and a judgment in an action of ejectment, because it is claimed that the court was without jurisdiction in either action, and that the judgment in the equity action was secured by fraud. To the complaint a demurrer was interposed and sustained. The plaintiffs refused to plead further, and elected to stand upon their complaint and appealed from the judgment dismissing the action.

The complaint is too long to be here set out in full, and, with the exception of the portions which we hereinafter quote, may be summarized as follows: On the 19th day of June, 1890, Olaf S. Anderson and Sarah F. Anderson were husband and wife and on this day acquired title to lot 3, in block 11, in Commercial Street Steam Motor addition to the city of Seattle, and immediately thereafter took possession of the same. Sarah F. Anderson died on the 16th day of August, 1893 and left surviving her Olaf S. Anderson, her husband, three children by a former husband, and two grandchildren, the children of a deceased daughter. The day before her death, Sarah F. Anderson made and executed her last will and testament, bequeathing to her children and grandchildren $1 each, and devising and bequeathing to her husband, Olaf S. Anderson, all the rest and remainder of her estate, both real and personal. Olaf S. Anderson was named as executor in the will. On the 28th day of August, 1893, the will was filed for probate, and the court made an order fixing the 8th day of September, 1893, as the date for proving the will. No one appearing on the date set for the proving of the will, the cause was continued from time to time until the 3d day of November, 1893, when the court of its own motion dropped the matter from the calendar, to be taken up and disposed of at such time as the witnesses thereto should appear to prove it. The will was not admitted to probate until the 20th day of March, 1916. On the 26th day of May, 1902, Olaf S. Anderson executed a deed, conveying the above-described property to the appellants in this action, who took possession of the same on the 26th day of May, 1902, and remained in possession until the 3d day of February, 1913, when they were dispossessed in the ejectment suit above referred to.

If the complaint states a cause of action, it is by virtue of the allegations in three paragraphs thereof, which will be here quoted in full:

'VII. That said Olaf S. Anderson had failed and neglected to proceed with and complete the administration of the estate of his said wife, and that the defendants F. G. Cookson, Emma Duby and Isabel Thornthwaite, although fully aware of the existence of the last will and testament of said Sarah F. Anderson, the filing of the same for probate and the proceedings had therein, designedly failed to prove up the last will and testament of said Sarah F. Anderson, and designedly failed to proceed with the administration of said estate, and designedly failed to make any claim to the estate of said Sarah F. Anderson until after the death of said Olaf S. Anderson, which occurred nine years after the demise of the testatrix, and until after the witnesses to said will had removed from the state of Washington, and until the death of the person who wrote said will, which was five years after the conveyance of said real estate to these plaintiffs, and five years after the death of said Olaf S. Anderson; that defendants designedly permitted the action commenced to probate said last will and testament of said testatrix to remain in abeyance and uncompleted, and designedly failed to assert or claim any right, title or interest in and to said real estate for nearly fourteen years after the death of said Sarah F. Anderson; that defendants knew that on the 12th day of August, 1902, these plaintiffs gave a mortgage on said real estate to Nels Peterson to secure the payment of the sum of $200, which mortgage was filed for record in the office of the auditor of King county, Wash., and recorded in volume 194 of Mortgages, at page 133, records of said county; that said defendants knew that said mortgage was assigned by said Nels Peterson to A. E. Blavine, known also as Ed. Bladine, one of the defendants herein, on the 3d day of August, 1904, which said assignment was filed for record in the office of the auditor of said King county, and recorded in volume 266 of Mortgages at page 284, records of said King county; that they designedly stood by and permitted these transactions to be carried on, until after the death of removal from the state of all parties connected with the execution of said will of said Sarah F. Anderson; that no claim was made by said defendants until the 25th day of June, 1907, when the defendant F. G. Cookson, for himself and on behalf of defendants Emma Duby and Isabel Thornthwaite, for the first time made a demand upon these plaintiffs for an accounting, and that they pay rent for the possession of said above-described property, then claiming that said property was the community property of the said Olaf S. Anderson and Sarah F. Anderson and defendants were entitled to a one-sixth interest each in and to said property, which demand and claim these plaintiffs refused and denied upon the grounds that they were the sole owners of said property by virtue of the said deed of warranty from Olaf S. Anderson, aforesaid.

'VIII. That on or about the 24th day of July, 1907, the defendants F. G. Cookson, Emma Duby and Isabel Thornthwaite, with the intent to cheat and defraud plaintiffs out of a one-half interest in said real estate, commenced an action in the superior court of King county, Wash., against plaintiffs herein and A. E. Blavine, one of the defendants herein, being cause No. 57179, to quiet title in them to a one-sixth interest each in and to said above-described real estate, and for partition of the same; that said action did not come on for hearing for almost three years; that a decree of partition was entered in said proceeding and the court appointed D. K. Sickels referee to appraise and sell all of said above-described real estate thereunder, except so much thereof as was taken by the city of Georgetown, King county, Wash., for street purposes, under condemnation proceedings in cause No. 69252, in which cause judgment was entered on the 24th day of February, 1910; that said real estate was sold by said referee to Mrs. Ed. Bladine, one of the defendants herein, on or about the 29th day of April, 1911, for the sum of sixteen hundred dollars ($1,600), and which sale was approved by the court on the 20th day of May, 1911, and referee's deed filed for record in the office of the auditor of King county, Wash., on the 9th day of June, 1911, and recorded in volume 785 of Deeds, at page 152, records of said King county.'

'XI. That for a long time prior and at the time of the demise of the said Sarah F. Anderson and Olaf S. Anderson, the defendant F. G. Cookson was living near them and was fully acquainted with their affairs and had full knowledge of the existence of the said last will and testament of said Sarah F. Anderson, and of the person who wrote said will and the witnesses thereto, and the pendency of the action to probate the same; that Emma Marie Burke, one of the plaintiffs herein, did not come to the state of Washington until the year 1900, and up to that time had no knowledge whatever of the affairs of said Olaf S. Anderson and Sarah F. Anderson, deceased, and that she did not learn that the said Sarah F. Anderson left a will devising said above-described property to the said Olaf S. Anderson, and that said will had been written by the said Harry C. Carson and witnessed by William Peterson and Mrs. Viola Stenfalt until the commencement of said partition proceeding: that she immediately began a search for said will, but was unable to find it; that she believed that defendant F. G. Cookson had secured possession of said will and destroyed it; that notwithstanding this belief these plaintiffs kept up a constant search for said will until the latter part of November, 1915, when the same was found locked up in the vault in the office of the clerk of the superior court of King county, Wash., together with a number of other old papers, where it had remained since it was filed on the 28th day of August, 1893; that by reason of said will not being admitted to probate it was not recorded in the record of wills in said office; that immediately upon the discovery of said will a diligent search was commenced for witnesses to prove said will; that said will was duly and legally proved and admitted to probate in this court on the 20th day of March, 1916, as provided by statute in such cases made and provided.'

The purchaser of the property at the referee's sale in the partition proceedings subsequently brought an action of ejectment against the appellants, which resulted in their being dispossessed of the property. The plaintiffs in the ejectment suit, as well as the plaintiffs in the action to quiet title and for partition, are made defendants in this action. If the complaint states a cause of action, the judgment must be reversed, otherwise it should be affirmed.

As preliminary to a consideration of the questions of law, it may be admitted that devises of real estate vest in the...