Cummings v. Anderson

• Court: Washington Supreme Court
• Writing for the Court: ROSELLINI; UTTER
• Citation: Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (Wash. 1980)
• Decision Date: 07 August 1980
• Docket Number: No. 46486
• Parties: Patty J. CUMMINGS, Respondent, v. Wally H. ANDERSON, a/k/a Walter H. Anderson, Petitioner.

Page 135

94 Wn.2d 135

614 P.2d 1283

Patty J. CUMMINGS, Respondent, v. Wally H. ANDERSON, a/k/a Walter H. Anderson, Petitioner.

No. 46486.

Supreme Court of Washington, En Banc.

Aug. 7, 1980.

Victor V. Hoff, Seattle, for petitioner.

Gary M. Abolofia, Redmond, for respondent.

ROSELLINI, Justice.

In September 1973, the petitioner and the respondent, contemplating marriage, bought the purchaser's interest in a contract for the sale of a single-family residence in Enumclaw and assumed the obligations of the underlying contract. They paid $2,500 for the assignment of the purchaser's interest. The contract called for monthly payments of $150, including interest, and the payment of the balance in full on or before August 1, 1975. It provided for forfeiture upon default.

The assignment was made to the petitioner and the respondent as tenants in common, and, according to the testimony of the attorney who advised them in this transaction, they intended to acquire the property as equal owners.

The evidence showed that both parties contributed to the downpayment, neither of them having assets sufficient to pay for the interest which they bought from the purchaser. They used their separate funds ¹ for a part of it and obtained a loan for the balance. From the circumstances, it is evident that they planned to pay the balance owed on the real estate contract, as well as the balance of the loan, with community funds which would belong to both of them. From these facts, it can be inferred that they intended to contribute equally in the purchase of the property.

The respondent in her answer to the petition tacitly acknowledges that the obligations of the parties were equal.

In February 1974, the parties were married. They lived in the residence, with the petitioner's two teenaged children and the respondent's four younger children, until August 1974, when the respondent left the home, taking her children and substantially all of the community personalty, including the cash in the joint bank account. She was granted a default dissolution in March 1975, the decree making no disposition of the property of the parties.

At the time of the respondent's departure from the residence, the parties had paid $2,828.92 toward the purchase of the property and $16,350.16 remained to be paid. They had no discussion regarding their rights in the property or their future obligations. The respondent did not communicate with the petitioner and made no offer to participate in making the payments necessary for acquisition of the property, nor did she assert a right to occupy the property or to receive rent for the petitioner's occupancy of it. He remained in possession and continued to make the payments under the contract, paying also the taxes and insurance premiums. At the time this action was brought, he had reduced the unpaid balance to $8,763.85. He had arranged with the sellers to assume their mortgage obligations instead of paying the full balance of the purchase price in August 1975.

Shortly before the final payment became due under the original contract, the respondent, who had remarried after the dissolution, offered to purchase the petitioner's interest in the contract for the sum of $1,000. This offer was rejected. She then brought this suit for partition, claiming a one-half interest in the purchaser's equity, and demanding one-half of the rental value of the premises during the period that the residence had been occupied by the petitioner alone.

At the trial, the respondent testified she had left the premises to protect her children from involvement in and observation of the sexual activities of the petitioner's son, then in his early teens. She said that she had told the petitioner that one of them would have to leave, and he had said it would have to be her. His testimony was that she had left the home without notice and without explanation. She did not contend that her departure had been occasioned by any conduct or omission of the petitioner.

The trial court found that the respondent had not been ousted by the petitioner. Because the evidence was uncertain with respect to the contributions made by the parties prior to the respondent's departure, the court found that their contributions had been equal. It further found that the respondent had made her own division of the property when she took with her the bulk of the community personalty, which the court found to have a value in excess of $1,400, and that she had abandoned her interest in the real property, as well as her obligations under the contract of purchase. Its judgment quieted title to the purchasers' interest in the petitioner, and ordered that he obtain a release of the respondent from any liability under the real estate contract.

The Court of Appeals, Division One, affirmed the lower court's finding that there had been no ouster of the respondent, as well as its conclusion that the petitioner was not obliged to pay rent for his exclusive occupancy of the premises. It held, however, that the interests of the parties in the property were fixed as of the date of their purchase of the vendee's interest and their assumption of the contract obligations. Accordingly, it awarded the respondent a one-half interest in the purchasers' equity, allowing the petitioner a lien on that interest for one-half of the amount which he had paid out in maintaining the contract, one-half of the value of improvements which he had made, and one-half of the value of the community personal property taken by the respondent.

It is agreed that the parties' interest in this property was held as tenants in common. The petitioner urges that the court was in error in holding that the respondent had acquired a one-half interest in the purchasers' equity, which was not affected by her subsequent abandonment of her obligations under the contract. He argues that, because the survival of the purchasers' interest depended upon the fulfillment of the obligations under the contract, the respondent's abandonment of those obligations manifested an intent to also abandon any interest which she had acquired as of that date. Alternatively he argues that, even if it cannot be said that she abandoned her existing interest as of that date, that interest was proportionate to her investment in the property, and she acquired no further interest thereafter.

The respondent, on the other hand, maintains that because the status of the property was established as of the date of acquisition, the respective interests of the parties were fixed as of that date. The evidence was undisputed, and the trial court found that the parties intended to acquire the property as equal owners. It is the theory of the respondent that nothing which happened thereafter could alter her interest.

While there is no contention that the property is or was ever community property, the respondent relies upon the rule that the status of property as community or separate is determined as of the date of acquisition, citing E. I. DuPont de Nemours & Co. v. Garrison, 13 Wash.2d 170, 124 P.2d 939 (1942). According to this rule, the character of such property depends on whether it was acquired by community funds and community credit or separate funds and separate credit. In re Estate of Binge, 5 Wash.2d 446, 105 P.2d 689 (1940). It is immaterial whether the deed is made to one or both parties. Walker v. Fowler, 155 Wash. 631, 285 P. 649 (1930). The character thus established remains fixed, unless changed by deed, due process of law, or the working of some form of estoppel. Conley v. Moe, 7 Wash.2d 355, 110 P.2d 172 (1941). As was said in Hamlin v. Merlino, 44 Wash.2d 851, 272 P.2d 125 (1954), quoting from In re Estate of Dewey, 13 Wash.2d 220, 124 P.2d 805 (1942), which in turn quoted Guye v. Guye, 63 Wash. 340, 115 P. 731 (1911), once it is made to appear that property was once of a separate character, it will be presumed to maintain that character until some direct and positive evidence to the contrary shows otherwise. ²

These cases are concerned with the character of property owned by married persons. They do not involve the method of determining the respective shares of unmarried copurchasers under a real estate contract, which is the problem before us here. Assuming, however, that the same general principles are applicable to such a determination, they do not preclude a showing that the allocation of interests contemplated at the inception of a property acquisition was changed by subsequent events.

Where, as here, the character of ownership is that of cotenancy, and the instrument by which the property was acquired is silent as to the respective interests of the coowners, it is presumed that they share equally. However, when in rebuttal it is shown that they contributed unequally to the purchase price, a presumption arises that they intended to share the property proportionately to the purchase price. Iredell v. Iredell, 49 Wash.2d 627, 305 P.2d 805 (1957). Annot., Presumption and proof as to shares of respective grantees or transferees in conveyance or transfer to two or more persons as tenants in common, silent in that regard, 156 A.L.R. 515 (1945). The Illinois Supreme Court in People v. Varel, 351 Ill. 96, 100, 184 N.E. 209, 211 (1932), said: Where title to property is taken in the name of two persons as co-tenants and their contributions to the purchase price of the property are unequal and their relationship is not such that a gift from one to the other is presumed to be intended, they will in equity be held to own the property in the proportions of their contributions to the purchase price.

The presumption that cotenants intend their interests to be proportionate to their contributions to the purchase price was applied in Iredell, even though the relationship of the parties was that of husband and wife.

In West v. Knowles, 50 Wash.2d 311, 311 P.2d 689 (1957), we said that where property is held by the parties as...