Cady v. Kerr

• Decision Date: 23 October 1941
• Docket Number: 28376.
• Citation: Cady v. Kerr, 11 Wn.2d 1, 118 P.2d 182 (Wash. 1941)
• Court: Washington Supreme Court
• Parties: CADY v. KERR et al.

118 P.2d 182

11 Wn.2d 1

CADY v. KERR et al.

No. 28376.

Supreme Court of Washington

October 23, 1941

Department 1.

Action by R. W. Cady against Fred J. Kerr and Jane Doe Kerr, his wife, Mason County, and K. K. Kirschner and Georgia Kirschner, his wife, for the appointment of commissioners to establish and mark the boundary line between two tracts of land.From an interlocutory decree dismissing the action with prejudice as to defendantFred J. Kerr who, in his answer recited that he was unmarried and denied every allegation in the complaint, directing a survey and determination of the boundary to be made by three commissioners appointed by the court, and retaining jurisdiction of the action for the ultimate entry of a final decree, K. K. Kirschner and Georgia Kirschner, his wife, appeal.

Interlocutory decree reversed, with leave to plaintiff to amend, or to obtain, if he can, amendment of the complaint.

Appeal from Superior Court, Mason County; John M Wilson, Judge.

Allen Froude & Hilen, of Seattle, for appellants.

J. W. Graham, of Schelton, for respondent.

STEINERT, Justice.

Plaintiff sought by this action to have the superior court for Mason county appoint commissioners to establish and mark the boundary line between a certain tract of land of which plaintiff was alleged to be the owner and another tract of land which defendantsFred J. Kerr and wife and K. K Kirschner and wife were alleged to own.DefendantFred J. Kerr answered, reciting that he was unmarried and denying every allegation in the complaint, including the allegation that he was one of the owners of the second tract of land above mentioned.DefendantMason county appeared but filed no answer.Defendants Kirschner answered, admitting in part and denying in part the allegations of the complaint and further alleging, as a first affirmative defense, that a large number of other landowners were affected by plaintiff's action and that plaintiff should therefore be required to bring in such other landowners as parties.These allegations were in turn denied in plaintiff's reply.Other affirmative defenses were pleaded in the Kirschners' answer, but with these we are not now concerned.

After a hearing, the court, sitting without a jury, made findings of fact and conclusions of law, upon which the court entered an interlocutory decree dismissing the action with prejudice as to defendantFred J. Kerr, directing that a survey and determination of the boundary between the lands in question be made by three commissioners appointed by the court, and retaining jurisdiction of the action for the ultimate entry of a final decree.Defendants Kirschner alone have appealed from the interlocutory decree as entered.They base their appeal on a short record pursuant to Rule IX, subd. 2, of the Rules of the Supreme Court, 193 Wash. 10-a.

Inasmuch as appellants' assignments of error are all directed against the conclusions of law which the trial court drew from its findings previously made, and since the findings present the facts with which we are here concerned, we shall recite those findings in haec verba, and likewise set forth the conclusions drawn therefrom.To avoid possible confusion resulting from a similarity of names, we call attention to the distinction between the name of Fred J. Kerr and that of Fred H. Kerr, as they appear therein.The court found, as facts, the following:

'I.That R. W. Cady[respondent] is a contract purchaser under a forfeitable real estate contract from North Pacific Public Service Company, a corporation, of the following described property situated in Mason County, Washington, to-wit:

'Lot 26 in the unrecorded plat of Olympic Beach located in Government Lot 1, Section 7, Township 22 North Range3 W.W.M. and the second class tide lands situate in front of said Lot, the said Lot 26 being otherwise described by metes and bounds as follows: [Here follows a metes and bounds description, which it is unnecessary to recite.]

'II.That K. K. Kirschner and Georgia Kirschner, his wife, are contract purchasers under a forfeitable real estate contract, of a tract of land known as Lot 1 of Kerr's Hood Canal Water Front Tracts, plat of which is unrecorded, the said lot being described as The North 165 feet of Lot 4, Section 18, Township 22 North, Range3 W.W.M.Mason County, Washington, under a contract of purchase from the defendants, Fred J. Kerr and wife, the fee simple title to said Lot 1 of Kerr's Hood Canal Water Front Tracts, subject to the contract for the sale thereof to K. K. Kirschner and wife, being in Fred H. Kerr, who is not a party to this action.That Lot 4, Section 18, Township 22 North, Range 3 West W. M., Mason County, was platted under un unrecorded plat as Kerr's Hood Canal Water Front Tracts into eight separate tracts, several of which have been conveyed to persons not parties hereto, and the remainder of the tracts being owned by Fred H. Kerr, and that all of the descriptions conveying said property to said owners are conveyed with specific reference to the north line of Lot 4, Section 18, Township 22 North, Range 3 West, W. M.

'III.That a dispute has arisen as to the true and correct location of the boundary lines between the property known as Lot 26 in the unrecorded plat of Olympic Beach, described in paragraph I hereof, and the property described in paragraph II hereof, and because of such dispute said boundary line has become obscure and uncertain, and the parties are unable to reach an agreement as to the true location thereof.

'IV.That pursuant to the provisions of Sections 947 to 949 of Remington's Revised Statutes it is necessary and advisable that said disputed, lost and uncertain boundary referred to in the preceding paragraph be established and properly marked.The court hereby finds that W. C. Miller, Walter W. Weedin and Geo. M. Ashford are competent, suitable and disinterested persons to be appointed commissioners, as provided in said statute.'

From these findings of fact, the court drew the following conclusions of law:

'I.That plaintiff's [respondent's] action be dismissed with prejudice and with costs as to the defendant, Fred J. Kerr,

'II.That North Pacific Public Service Company and Fred H. Kerr are not necessary parties to this action, particularly in view of Section 8430-22, Pierce's 1939 Code, Section 308-2 of Remington's Revised Statutes.

'III.That plaintiff[respondent] is entitled to the appointment of commissioners for the purpose of surveying, erecting, establishing and marking boundaries between the properties hereinabove described, the cost of such proceeding to be determined or apportioned upon the final hearing upon the commissioners' report, as provided in Section 949 of Remington's Revised Statutes.'

The first assignment of error which we shall notice, although it is not the first in order, is that the court erred in making conclusion of law number one, wherein it concluded that the action should be dismissed, with prejudice, as to Fred J. Kerr.

The record discloses that on June 28, 1935, Fred J. Kerr, as seller, executed to appellants Kirschner, as purchasers, a real estate contract covering the land described in finding of fact number two, which is the land latterly occupied by appellants and in which they claim to have an interest.The record further reveals that on August 1, 1939, which was prior to the commencement of this action, Fred J. Kerr assigned the contract of June 28, 1935, and conveyed the property therein described to Fred H. Kerr, and that the instrument of assignment and conveyance was, likewise, filed for record prior to the commencement of this action.At all times pertinent to this case, Fred J. Kerr has been a widower.As intimated above, Fred J. Kerr in his answer denied, in effect, that he had any interest in the land, either presently or at the time of the commencement of the action.The limited statement of facts presented upon the appeal contains no evidence, other than that heretofore recited, concerning Fred J. Kerr's connection with any of the land here involved.Upon this showing by the record, it definitely appears that Fred J. Kerr had no interest in the land at the time of, or since, the commencement of this action, and hence he was not a necessary party thereto.We therefore find no error in the trial court's first conclusion of law.

The next assignment of error is directed against conclusion of law number two, wherein the court concluded that North Pacific Public Service Company and Fred H. Kerr were not necessary parties to the action.If will be borne in mind that North Pacific Public Service Company was the vendor named in the real estate contract covering the land which respondent now occupies, and that Fred H. Kerr was the assignee and grantee of Fred J. Kerr's former interest in the land which appellants now occupy.As already indicated, neither North Pacific Public Service Company, the title holder of the first tract, nor Fred H. Kerr, the title holder of the second tract, was made a party to the action.

Appellants contend that since respondent is simply a purchaser of the first tract of land under a forfeitable real estate contract, he cannot maintain this action without bringing in as a partyNorth Pacific Public Service Company, his vendor and the holder of the legal title to that parcel of land.They further argue that respondent cannot maintain this action against them as purchasers of the second tract of land without also joining as a partyFred H. Kerr, their vendor and the holder of the legal title to that tract.Respondent's contention is to the contrary, and is in accord with the trial court's conclusion of law number two.

With respect to partiesplaintiff, the rule appears to be that, in the...