Culmback v. Stevens
| Decision Date | 01 October 1930 |
| Docket Number | 22195. |
| Citation | 291 P. 705,158 Wash. 675 |
| Parties | CULMBACK v. STEVENS et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Snohomish County; Frank C. Mansfield Judge pro tem.
Action to recover possession of real property and to quiet title by George Culmback, as trustee in bankruptcy of Verne A. Smith and wife, against Charles E. Stevens and wife and Burdett Richardson and wife. From decree quieting title in defendants Stevens, subject to the rights of defendants Richardson in the property, the trustee in bankruptcy appeals.
Affirmed.
Verne C. Henry and Wm. A. Johnson, both of Everett, for appellants.
Robert Mulvihill, of Everett, for respondent.
On and for some time prior to August 22, 1927, one Verne A. Smith and Ethel Smith, his wife, were the owners of certain real property located at Beverly Park, near the city of Everett in this state. The owners had caused to be erected thereon two dwelling houses. On the date above given, the owners of the property entered into a written contract with the respondents Burdett Richardson and Dorothy Richardson, his wife, whereby they agreed to sell and the Richardsons agreed to buy one of the houses, together with the land upon which it was situated, the land being described by metes and bounds. The agreed purchase price of the property was $3,750. On the purchase price of the property the contract purchasers paid $100 at the time the contract was executed, and agreed to pay the remainder in monthly installments of $40 each. There was a mortgage upon the property at the time of $1,500 which mortgage the sellers agreed to pay. The contract purchasers entered into possession of the property at the time of the execution of the contract, and were in such possession at the time of the trial of the action now before us.
The labor of constructing the houses was largely performed by the respondent Charles E. Stevens, a brother-in-law of the sellers, under an agreement that he was to be paid for his services when one of the houses was sold. Pursuant to this agreement, the sellers, on September 5, 1927, executed a written instrument, the purpose of which was, according to the testimony of the sellers and the testimony of Stevens, to assign to Stevens all the right, title, and interest of the sellers in and to the contract and the property described therein. The instrument was drawn by one of the sellers, and is somewhat inartifically worded to accomplish the purpose intended. The words of grant are 'all of the right, title and interest' of the assignors in and to the property described, and the property described is 'all payments due or to become due' on the contract. Further on the assignment recites that 'the property which we are selling to Richardson is situated * * *,' followed by a description of the property as it is described in the contract with the Richardsons. The assignment, while signed by both the assignors, was not acknowledged nor recorded, and was delivered to the assignees named therein on a later day in the month than the day it bears date.
There was no substantial disparity between the debt owing by the Smiths to Stevens, and the interest the Smiths had in the property after the execution of the contract to the Richardsons. The Smiths' interest at that time was the contract price less the existing mortgage thereon. The debt due Stevens closely approximated this sum, being slightly larger.
Some time thereafter Verne A. Smith engaged in a business which led him into financial difficulties, and he and his wife were adjudicated bankrupts on July 10, 1928, in a proceeding instituted in a federal court. In the bankruptcy proceeding the appellant, Culmback, was elected trustee in bankruptcy and qualified as such.
In their schedule of assets filed in the bankruptcy proceedings the Smiths did not list this property as part of their assets, but later on, at the instigation of the trustee in bankruptcy, they were directed to so list it by the court and did list it, disclaiming at the time any interest in the property. Neither Stevens nor his wife, however, was made a party to the proceedings.
Richardson made the monthly payments falling due on his contract of purchase down to the time that the Smiths were adjudicated bankrupts. Following the adjudication, the trustee in bankruptcy demanded that all subsequent payments be made to him as such trustee. Stevens protested against the trustee's claim, and demanded that the payments be made to him. Richardson then refused to pay to either claimant until their rights were defermined. The trustee thereupon served upon them a notice purporting to forfeit the contract. No notice of forfeiture has been served on him by either the Smiths or Stevens.
Subsequent to the demand and service of the notice of forfeiture by the trustee in bankruptcy, but before the present action was instituted, the Smiths, by a formal deed of conveyance, conveyed all of their right, title, and interest in and to the property to the respondent Stevens.
Thereafter the trustee in bankruptcy began the present action to recover possession of the real property from the respondent Richardson, and to quiet title thereto in himself as trustee in bankruptcy of the bankrupts Smith against the claims of both Richardson and Stevens. Upon a trial after issue joined, the trial court found as a conclusion of law that the respondents Stevens and wife are the owners of the real property in controversy, subject to the contract of sale made by the Smiths to the Richardsons, and that the appellant, Culmback, as trustee in bankruptcy of the Smiths, had no right, title, or interest in and to the property of any nature whatsoever; further finding that Stevens was entitled to a decree quieting title in himself to the property against the claims of the trustee in bankruptcy, and entered a decree accordingly.
The trustee in bankruptcy makes two principal contentions for reversal. The first is that...
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... ... a portion of it to another, severs the title. As this court ... said in the case of Culmback v. Stevens, 158 Wash ... 675, 291 P. 705, 707: ... "Whatever ... this court may have said heretofore on the question ... ...
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...of his payments on the purchase price. (65 C. J. 430; Orange Cove Water Co. v. Sampson, 78 Cal.App. 334, 248 P. 526; Culmback v. Stevens, 158 Wash. 675, 291 P. 705.) C. J. Morgan, C. J., and Ailshie and Givens, JJ., concur, GIVENS, J., Specially Concurring. Budge, J., did not sit at the hea......
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