Dart v. McDonald

• Decision Date: 03 February 1921
• Docket Number: 16146,16145.,16144
• Citation: 114 Wash. 448,195 P. 253
• Parties: DART et ux. v. McDONALD et al. McDONALD v. DART et al. DART et ux. v. McDONALD et ux.
• Court: Washington Supreme Court

195 P. 253

114 Wash. 448

DART et ux. v. McDONALD et al.

McDONALD v. DART et al.

DART et ux. v. McDONALD et ux.

Nos. 16146, 16144, 16145.

Supreme Court of Washington

February 3, 1921

Department 2.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Separate actions by L. S. Dart and wife against D. K. McDonald and others, by Maude S. McDonald against L. S. Dart and others and by L. S. Dart and wife against D. K. McDonald and wife. From the judgments rendered in the first and third cases L S. Dart and wife appeal, and from judgment rendered in the second case L. S. Dart and others appeal, and Maude S McDonald cross-appeals; that appeals being consolidated. Judgments affirmed.

F. W. Girand and Fred M. Williams, both of Spokane, for appellants.

Edwin C. Matthias and Graves, Kizer & Graves, all of Spokane, for respondents.

MOUNT J.

These three cases are closely related. They were tried separately in the court below, but by stipulation of the parties are consolidated for argument here and are presented in one set of briefs. They all arise out of facts which may be briefly summarized as follows:

On June 24, 1918, L. S. Dart and others obtained a judgment against D. K. McDonald, Maude S. McDonald, his wife, and others. Mrs. McDonald appeared separately in that case and appealed from a judgment therein rendered against her. The judgment against her in her individual capacity was reversed. See Dart v. McDonald, 107 Wash. 537, 182 P. 628. Pending the appeal in that case an execution was issued and levied upon two pieces of property which then stood in the name of Mrs. McDonald. One is known in the record as an orchard tract, in Opportunity, in Spokane county, and the other is an apartment house known as Princeton Apartments, in the city of Spokane. These properties were sold by the sheriff under the execution and bid in by Mr. Dart. Sheriff's deeds were issued and confirmed and Dart went into possession of the property. After the judgment had been reversed upon appeal Mrs. McDonald brought two actions, one an action against the Darts to quiet title in her because of the sheriff's deed standing of record. This action resulted in a judgment quieting title in Mrs. McDonald. The Darts have appealed from this judgment. About the same time Mrs. McDonald sued out a writ of restritution, which came on to be heard and resulted in a judgment placing her in possession of the property and an accounting forrents, issues, and profits in favor of Mrs. McDonald for $1,709.61. Mrs. McDonald has appealed from the order determining the rents, issues, and profits, claiming that the court erred in not allowing her $294.02 paid by the Darts to an agent as commission for renting the apartments.

After judgments in all these cases the Darts, by a proceeding in the lower court, attempted to offset the costs amounting to some $600 in their favor in the original action against a judgment for a like amount in favor of Mrs. McDonald upon her appeal in that action. The trial court denied the right to offset. The Darts have appealed from that order.

We shall consider these cases in the order in which they are above stated.

The facts relating to the action to quiet title are substantially as follows: In the year 1911 Mr. and Mrs. McDonald, who were then husband and wife and had been such for a number of years, owned jointly with one A. B. Clark and wife a tract of land in Grant county comprising 1,620 acres. A mortgage upon this land had been executed by the owners for $35,000 in favor of the De Tweed Northwestern & Pacific Hypotheek Bank. In the same year (1911) Mr. and Mrs. McDonald and Mr. Clark agreed upon a partition of that tract of land; 320 acres of the tract was deeded to Mrs. McDonald as her separate property. She assumed and agreed to pay $10,000 of the mortgage then existing upon the whole tract. D. K. McDonald in his separate right was given 800 acres, and he assumed and agreed to pay $15,000 of the mortgage then upon the whole tract. A. B. Clark and wife were given 500 acres, and assumed and agreed to pay $10,000 of the mortgage then upon the whole tract. Immediately after this division of the property among the parties Mrs. McDonald took actual possession of the 320 acres deeded to her as her separate property and operated it thereafter as her own separate property without the intervention of her husband. Mr. McDonald at that time, according to the undisputed testimony, was worth over and above his unsecured debts $200,000 or more. This transaction took place two years or more before the transaction arose upon which the judgment of Dart et al. against McDonald et al., reported in 107 Wash., supra, was instituted, and apparently before McDonald had thought of the business which gave rise to that action. In the year 1916 Mrs. McDonald borrowed from the Vermont Loan & Trust Company $10,500 and secured the same by a mortgage upon her separate property. Mr. McDonald at the same time borrowed $20,000 from the Vermont Loan & Trust Company and secured the same by a mortgage upon the 800 acres of his property; $25,000 of this money was used to satisfy the mortgage held by the De Tweed Northwestern & Pacific Hypotheek Bank. The mortgage of that company was then released upon the property of Mrs. McDonald and D. K. McDonald. Afterwards Mrs. McDonald exchanged her 320 acres or land subject to the mortgage of $10,500 to one L. Williams for the apartment house in Spokane. Mr. Williams accepted the 320 acres of land subject to the $10,500 mortgage. Mrs. McDonald took the apartment house subject to a mortgage of $15,000, which she assumed and agreed to pay. After Mrs. McDonald had taken possession of the apartment house which she had obtained for her farm land Mr. McDonald executed a quitclaim deed reciting that the property was the separate property of Mrs. McDonald. Mrs. McDonald, from the time she received the farm land in 1911 up until she was dispossessed of the apartment house under the sheriff's sale, had operated both the farm while she owned it and the apartment house as her separate and individual property.

We have carefully read the whole of the evidence upon the trial and it conclusively shows that this property is the separate property of Mrs. McDonald. In fact, there was no evidence offered to the contrary. The appellants here...