Davies v. Metropolitan Life Ins. Co.

• Decision Date: 14 September 1937
• Docket Number: 26447.
• Citation: 191 Wash. 459,71 P.2d 552
• Parties: DAVIES v. METROPOLITAN LIFE INS. CO. et al.
• Court: Washington Supreme Court

71 P.2d 552

191 Wash. 459

DAVIES v. METROPOLITAN LIFE INS. CO. et al.

No. 26447.

Supreme Court of Washington

September 14, 1937

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Mortgage foreclosure action by Mozella E. Davies against the Metropolitan Life Insurance Company and others, wherein Docia B. Davies filed an intervening cross-complaint. Judgment dismissing the cross-complaint, and cross-complainant appeals.

Affirmed.

R. L Edmiston, of Spokane, and George V. Ostroth, of Seattle (A J. Menny, of Seattle, of counsel), for appellant.

Hamblen Gilbert & Brooke, of Spokane, for respondents.

ROBINSON Justice.

In April, 1934, Metropolitan Life Insurance Company instituted an action to foreclose a mortgage on the south half of section 32, township 22 north, range 44 east of the Willamette Meridian. The mortgage was executed by Lewis Davies on May 1, 1929. Mozella E. Davies, a granddaughter of Lewis Davies, filed a complaint in intervention alleging paramount title. Docia B. Davies, the then wife of Lewis Davies, also filed a complaint in intervention alleging paramount title. Eventually, both intervening complaints were dismissed, that of Mozella E. Davies with prejudice, and that of Docia B. Davies without prejudice. Mozella E. Davies appealed, and the judgment of dismissal with prejudice was ordered modified to that of simple dismissal. Metropolitan Life Insurance Co. v. Davies (Wash.) 67 P.2d 867.

Presumably, in expectation of this result, Mozella E. Davies began an independent action against Metropolitan Life Insurance Company, even Before the formal decree in the foreclosure suit was entered. In this action, she sought to enforce her alleged paramount rights in the land. Docia B. Davies filed an intervening cross-complaint in this action, seeking to enforce her claims. Demurrers were interposed to both complaints and sustained as to each, and, in due course, each complaint was dismissed by a separate judgment. Both complainants appealed. The appeal of Mozella E. Davies was ruled upon by this court in the case of Davies v. Metropolitan Life Insurance Company (Wash.) 63 P.2d 529. The case at bar is the appeal of Docia B. Davies from the judgment dismissing her intervening complaint in that same action.

It is urged by respondents that some of the matters raised by appellant in her cross-complaint were adjudicated against her in the foreclosure suit. Having examined the record in that cause when it was here on appeal, we will go so far as to say that we suspect that this may be true. But that question is not Before the court, for, since the defense of res adjudicata requires pleading and proof, it cannot be interposed by demurrer. Furthermore, it is alleged in appellant's cross-complaint that she was not made a party to the foreclosure suit and that her complaint in intervention therein was dismissed without prejudice. If this is true, and, in determining whether or not the demurrer in this cause was properly sustained, we are compelled to regard it as true, it is difficult to see how anything could have been finally adjudicated against the appellant in the foreclosure action.

It is alleged that Lewis Davies and his first wife settled on the southeast quarter of section 32, township 22 north, range 44 east of the Willamette Meridian, in 1882, and that Davies acquired a homestead right therein under the then existing law, which he never abandoned or relinquished until April 21, 1934; that the appellant married Davies in 1910; that she did not consent to the making of the mortgage to the respondent insurance company in 1929; and it is contended that, as a matter of law, such mortgage is therefore wholly void, or, at least, subject to her alleged paramount right.

As to the southwest quarter of the section, it is alleged that appellant furnished $1,000 to Davies toward the purchase price thereof, with the understanding that, when the appellant and Davies should be married, it would become their community property; that the property was purchased; and the agreement fully executed by the subsequent marriage of the parties. Hence it is said that the property was community property and not subject to mortgage without appellant's consent. It is further contended that the mortgagee was put on inquiry by the fact that appellant, as the wife of Davies, was living with him on the land at the time the mortgage was executed.

We think appellant's contentions with regard to the southwest quarter are obviously unsound. Appellant's allegations amount only to this: That Davies made a contract with her which he only partially performed. When he purchased the property Before marriage and took title in his own name, it became, in law, his separate property. The marriage did not, and could not, convert it into community property. Some kind of conveyance from Davies to appellant was required to accomplish that. It is not alleged or pretended that any such conveyance was made prior to the execution of the mortgage. That such an advancement, as is alleged by the appellant, would not make the property subsequently purchased community property upon the taking place of the marriage, is held in Morse v. Johnson, 88 Wash. 57, 152 P. 677.

A much more difficult question is presented with reference to the southeast quarter of section 32. We have held, in the appeal taken by Mozella E. Davies in this case, that, since the first wife of Lewis Davies died Before final proof was made, he took the property as his sole and separate property. It, therefore, had been his separate property for 20 years or more when he married this appellant, Docia B. Davies.

At first sight, Rem.Rev.Stat. § 6890, would seem to dispose of the question as to whether or not he could give a valid mortgage without the consent of the appellant.

'Property and pecuniary rights owned by the husband Before marriage, and that acquired by him afterward by gift, bequest, devise or descent, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of his wife, and he may manage, lease, sell, convey, encumber, or devise, by will, such property without the wife joining in such management, alienation, or encumbrance, as fully and to the same effect as though he were unmarried.' (Italics ours.)

The appellant, however, calls attention to Rem.Rev.Stat. § 534. This section is as follows: 'The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.'

Appellant says that, at the time the property was mortgaged, it was the homestead of a married person, Lewis Davies, and that she his wife, did not...