Calhoun v. Leary

• Decision Date: 01 March 1893
• Citation: 6 Wash. 17,32 P. 1070
• Court: Washington Supreme Court
• Parties: CALHOUN v. LEARY ET AL.

32 P. 1070

6 Wash. 17

CALHOUN v. LEARY ET AL.

Supreme Court of Washington

March 1, 1893

Appeal from superior court, King county; I. J. Lichtenberg, Judge.

Action by William M. Calhoun against John Leary, Jacob Furth, the Leary-Collins Land Company, M. V. B. Stacy, Elizabeth A Stacy, John H. McGraw, May L. McGraw, John Collins, Angie B Collins- and Angus Mackintosh, to have the interests of the parties in certain land determined. Decree, from which the three first, named defendants appeal. Affirmed.

Preston Albertson & Donworth and Bausman, Kelleher & Emory, for appellants.

James Kiefer and Blaine & De Vries, for respondent.

HOYT J.

In January, 1884, M. V. B. Stacy, John Leary, and A. Mackintosh desired to jointly purchase the land the title to which is in controversy in this action. The first named had the money with which to make the purchase, and was willing to make it on the joint account of the three. It was therefore agreed between them that the purchase should be made, and the entire consideration paid by said Stacy. Under this arrangement the property was purchased by said Stacy, and the legal title thereto placed in said Mackintosh, and a memorandum made between them by which it was agreed that each of said parties should have a one-third interest in the same, the said Leary and Mackintosh each to pay said Stacy the sum of $2,666.67 within six months, with interest thereon from the date of the agreement at 1 per cent. per month. Upon such payment by said Leary and Mackintosh, each of the parties was to be entitled to a deed of an undivided one-third interest in the property. While the legal title yet remained in said Mackintosh, the said Leary paid his share of the purchase price. The said Mackintosh never paid for his share, and at this time disclaims all interest growing out of said agreement; and, so far as his equitable interest is concerned, it can cut no figure in the case, as upon such disclaimer by him his interest therein, if he ever had any, was in equity vested in said Stacy. The said Mackintosh, as the holder of the legal title, issued to said Stacy a certificate showing that he was the owner of an undivided one-third interest in the land. Soon after such certificate was issued, Stacy, for a valuable consideration, assigned and transferred it and his interest thereunder to one Mathias, who, by like assignment, and also by quitclaim deed, conveyed said interest to Fred E. Sander, who thereafter received a deed from Mackintosh, the holder of the legal title, conveying to him the same interest. Sander and wife then conveyed to William M. Calhoun, the plaintiff in this action. After the payment of his share of the purchase price by Leary, and long after the time when the interest of said Mackintosh should have been paid for under the terms of said agreement, the property was levied upon and sold under an execution issued upon a judgment in favor of one George D. Hill, and against said Stacy and Leary, at which sale the property was bid in by said George D. Hill, who thereafter received a sheriff's deed therefor. The title, if any, thus acquired by said Hill was afterwards conveyed to and vested in the respondent John H. McGraw. Such title was questioned by certain parties, who instituted a suit in equity relating thereto, and such proceedings were had that the matter was finally compromised by the payment of the claim of those attempting to assert equities as against said title by said McGraw in the interest of the title derived from said Hill. Before the interest of said Hill was purchased by said McGraw he had, in the interest of the several claimants, been vested with the legal title to an undivided two-thirds interest in said land as the trustee for said claimants. At this time, and before said purchase by said McGraw, negotiations were had between him and said Leary, by which it was arranged between them that the title derived by said Hill under said execution sale should be purchased by said McGraw in the interest of himself and the said Leary. This arrangement was carried out, and the title of said Hill purchased by said McGraw, and the sum of $8,000 paid therefor. In further pursuance of the arrangement between said Leary and McGraw, the interest of those attempting to assert equities as against the Hill title was purchased in their interest by said McGraw, and the sum of $4,000 paid therefor. It was understood between said McGraw and Leary that they each had an equal interest in these transactions. It was understood between them that the entire interest held by both of them was a two-thirds interest in the property in question. At the request of said Leary, and in pursuance of this understanding, the said McGraw conveyed to one Jacob Furth, as trustee for said Leary, an...