Curry v. Wilson

• Decision Date: 01 March 1910
• Citation: 107 P. 367,57 Wash. 509
• Parties: CURRY v. WILSON et al. WILSON et al. v. CURRY.
• Court: Washington Supreme Court

107 P. 367

57 Wash. 509

CURRY v. WILSON et al.

WILSON et al. v. CURRY.

Supreme Court of Washington

March 1, 1910

Department 1. Appeal from Superior Court, Skagit County; Geo. A. Joiner Judge.

Consolidated actions by J. Albert Curry against Richard Wilson and others and Augusta S. Wilson, an insane person, by Henry McLean, her guardian ad litem, and others, against said Curry. From a judgment in favor of Wilson and others, Augusta S. Wilson and others appeal. Affirmed.

Million & Houser, for appellants.

Henry McLean and D. G. Wakefield, for respondents.

CHADWICK J.

This case has been before this court ( Curry v. Wilson, 45 Wash. 19, 87 P. 1065), to which reference may be made for the facts. The court there said: 'We cannot under the record properly determine all the equities between the parties.' The case was sent back for the ascertainment of such equitable claims as might exist in favor of Curry, the present appellant. The validity of the mortgage upon which appellant's title rests, as well as the subsequent foreclosure proceeding, was denied in the former case, and although appellant insists that he has been denied a constitutional right and that he has been, and is being deprived of his property without due process of law, the validity of the mortgage and the mortgage foreclosure was fully considered by this court on the former appeal, and the claim of the appellant that he has been given no opportunity to be heard on these questions finds no support in the record. We feel bound by the facts as found by this court, as well as by its legal conclusions. Therefore the only question for the trial court to determine was the items and amounts legally and equitably chargeable against the property.

Under the theory that he is being deprived of his property without due process of law, appellant seeks to open up the main question decided in the former opinion, and seems to make the further point in his brief that a part, if not all, of the amount represented by the original mortgage, was an existing equity against the land at the time the mortgage was given and should for that reason be allowed. If this were true appellant would, no doubt, have a right of subrogation; but here again we are met by the fact that, at the time Mrs. Wilson was adjudged insane, there was no lawful demand against her or any equitable lien upon the property. Hence there can be no subrogation. To meet the issues within the rule of our former decision, appellant filed in obedience to an order of the trial court, a bill of particulars, in which the payment of taxes running over a period of 10 years was claimed. It was also set up that: '(2) Plaintiff claims that the money which was advanced by J. A. Cloud to Richard Wilson was used by said Wilson for the purpose of paying off valid liens and obligations then existing against said real estate, and for the purpose of keeping, maintaining, and supporting the family of said Wilson, and that plaintiff is unable to give a more particular or specific bill of particulars of said moneys, for the reason that all of the facts and data are peculiarly within the knowledge of the defendants, and especially of defendant Richard Wilson. (3) That the moneys loaned by said Cloud to said Richard Wilson, as said guardian, were used for the purpose of clearing, fencing, and otherwise improving said real estate, the facts of which are peculiarly within the knowledge of the defendants, and especially of defendant Richard Wilson. (4) That plaintiff claims that a large amount of the money paid by said Cloud to said Richard Wilson was used for said Richard Wilson in the payment of debts and obligations incurred in the care, keeping, and support of the minor children of said Richard Wilson and wife, and for which the property of said Richard Wilson and wife were liable'--all of which was stricken by the court except the part which we have italicized. We learn from the briefs that appellant offered to file an amended pleading, setting up the items inserted in the bill. This offer was denied by the court. The proffered pleading is not in the record; but, assuming for the purposes of the argument that it goes no further than the bill of particulars, we shall discuss the case as if it were before us. The bill of particulars claimed that the money advanced by Cloud at the time the first mortgage was given was to pay off valid and subsisting liens against the property. This question was therefore before the court under the former decision, and testimony might have been taken on this issue, but it does not appear that any was offered at the trial. The conclusion is inevitably forced that the equities in this regard are the same as those...