Church v. Brown

• Decision Date: 06 December 1928
• Docket Number: 21425.
• Citation: 272 P. 511,150 Wash. 178
• Parties: CHURCH v. BROWN et al.
• Court: Washington Supreme Court

272 P. 511

150 Wash. 178

CHURCH v. BROWN et al.

No. 21425.

Supreme Court of Washington

December 6, 1928

Department 1.

Appeal from Superior Court, Asotin County; R. L. McCroskey, Judge.

Action by S. R. Church against Georgia M. Brown and others. Decree for plaintiff, and defendants appeal. Affirmed.

Benjamin F. Tweedy, of Lewiston, Idaho, for appellants.

Homer L. Post and Elmer E. Halsey, both of Asotin, for respondent.

BEALS J.

Plaintiff in his complaint alleged his ownership by warranty deed from defendants of certain real estate in Asotin county, Wash that defendants were in possession thereof under an unfounded claim of right, and prayed for a decree declaring him to be the owner of the land in question and entitled to the possession thereof. Defendants in their answer admitted their possession of the premises in question and alleged that the deed from themselves to plaintiff purporting to convey to him the premises therein described was in fact a mortgage, given as additional security for a pre-existing indebtedness, which indebtedness defendants alleged that they still owed to plaintiff. Defendants further alleged that their possession of the premises in question was rightful, and that they were the owners thereof in fee simple, subject to plaintiff's mortgage. In the prayer of their answer they asked that the action be dismissed and that they have judgment for their costs and 'for all relief to which they are entitled at law and in equity.' Plaintiff in his reply denied that the deed referred to in his complaint was in fact given as security or otherwise than as an absolute conveyance given him in full satisfaction of a pre-existing debt, evidenced by a promissory note and secured by a mortgage upon the premises conveyed. Plaintiff then proceeded to allege that he had made certain payments for the benefit of the property by way of taxes, assessments, and insurance, and asked that, should the court find his deed to be a mortgage, the same be foreclosed, and that he be allowed an attorney's fee of $150. Plaintiff also in his reply prayed that he be declared and adjudged to be the owner in fee simple of the premises described in his complaint, 'or, in the alternative, should the court find that the said warranty deed was in fact a mortgage, then in that case that the said mortgage be foreclosed and that plaintiff have judgment against defendants for the sums found due, for $150 attorney's fees, and for costs of suit, and for such other relief as in law and equity plaintiff shall be entitled.'

Defendants moved to strike from the reply the alternative allegations referred to, upon the ground that the same constituted a departure from the complaint; which motion was overruled. The trial resulted in a decree in plaintiff's favor declaring the deed from defendants to plaintiff to be a mortgage and foreclosing the same against the property covered thereby for certain amounts found by the court to be due, including an attorney's fee in the sum of $150.

From this decree defendants appeal.

No statement of facts has been brought before this court, the case being here only upon the complaint, answer, and reply, together with the decree signed by the court which includes certain findings of fact.

Appellants contend that the reply filed by respondent is inconsistent with the complaint; that in such an action as this a reply in the alternative is improper; and that the only judgment which the court had a right to enter, in view of its finding that the deed upon which respondent based his complaint was in fact a mortgage and not an absolute conveyance, was a judgment of dismissal. Appellants further contend that in any event the amount of the judgment is excessive and that no allowance to respondent by way of an attorney's fee should have been made.

Appellants in their answer pleaded an equitable defense, namely, that the deed which they had theretofore delivered to respondent was in fact a mortgage and not an absolute conveyance, and, in addition to asking that the action be dismissed, they prayed for 'all relief to which they are entitled at law and in equity.' It is possible that under the strict rules of pleading which formerly prevailed, respondent's reply, being in its nature an alternative pleading, might have been held to be objectionable; but under the more modern and liberal rules of pleading, under which rules it is held desirable that all controversies between the parties arising out of or depending upon the transaction which is the subject-matter of the action be determined and settled in one instead of several proceedings, we hold that the procedure followed by respondent in replying to appellants' answer was unobjectionable.

In the case of Beecher v. Thompson, 120 Wash. 520, 207 P 1056, 29 A. L. R. 699, it appeared that the plaintiffs had brought an action in replevin for the purpose of recovering possession of a motortruck, they having alleged in their complaint that they had held a chattel mortgage upon the truck and had thereafter received an assignment of the owner's interest...