Davies v. Metropolitan Life Ins. Co.

• Decision Date: 05 April 1939
• Docket Number: 27401.
• Citation: 88 P.2d 829,198 Wash. 482
• Parties: DAVIES v. METROPOLITAN LIFE INS. CO. et al.
• Court: Washington Supreme Court

88 P.2d 829

198 Wash. 482

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

No. 27401.

Supreme Court of Washington

April 5, 1939

Department 1.

Action by Mozella E. Davies against the Metropolitan Life Insurance Company and others to establish plaintiff's right to an undivided one-half interest in certain land. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Chas. W. Greenough judge.

Josiah Thomas and Clarence L. Gere, both of Seattle, for appellant.

Hamblen Gilbert & Brooke, of Spokane, for respondents.

JEFFERS, Justice.

This is an action instituted by Mozella E. Davies against Metropolitan Life Insurance Company, Bank of Fairfield, Bank of Rosalia, John Hancock Mutual Life Insurance Company, Docia Davies, individually, and as administratrix of the estate of Lewis Davies, deceased, John Hartmeier and wife, in which she seeks to establish her right to an undivided one-half interest in the south half of section 32, township 22 N. R 44 E.W.M., in Spokane county, Washington. After trial to the court, a judgment was entered dismissing the action. Motion for new trial was made and denied, and this appeal followed.

This case was Before this court, and the pleadings construed, in Mozella E. Davies v. Metropolitan Life Insurance Co., 189 Wash. 138, 63 P.2d 529, and therein we held that appellant, as heir or descendant of her grandmother Mozella E. Davies deceased, could establish no interest in the southeast quarter of section 32, township 22 N. R. 44 E. W. M., and as to the southwest quarter, we held that the complaint stated facts sufficient to show a resulting trust in Lewis Davies, for Clyde Davies, father of appellant, to an undivided one-half interest in this quarter section; that Clyde Davies died intestate in 1921, leaving appellant as his sole heir; and we therefore held that the demurrer should have been overruled as to the southwest quarter, and the cause was remanded for further proceedings not inconsistent with the views expressed in the opinion.

After the case was remanded, and Before the trial in which the judgment here on appeal was entered, appellant set up in her reply that she was entitled to an interest in the southeast quarter, by virtue of a deed from Docia Davies, dated November 12, 1936, and that Docia Davies had an interest in the southeast quarter because of the fact that this property was a homestead, so created by her husband, Lewis Davies, and that he had no right to give a mortgage on this property without her signature. It was also set out in the reply that Lewis Davies was mentally incompetent at the time he executed the mortgage to the Metropolitan Life Insurance Company, which mortgage was subsequently foreclosed.

We are of the opinion that, by the decision in Mozella E. Davies v. Metropolitan Life Insurance Co., supra, appellant is foreclosed from making any claim to the southeast quarter of section 32, as the heir or descendant of her grandmother, Mozella E. Davies, and that, by our decision in the case of Mozella E. Davies v. Metropolitan Life Insurance Co., 191 Wash. 459, 71 P.2d 552,

she is also foreclosed from making any claim to this quarter section, based upon the deed from Docia Davies, or based upon any claimed homestead right of Docia Davies in this property. It follows that appellant, having no interest in the southeast quarter of section 32, could not raise the question of the mental incompetency of Lewis Davies, at the time he executed the mortgage to the Metropolitan Insurance Company.

This leaves only appellant's claim to the southwest quarter of section 32. In her amended complaint, appellant seeks to establish an interest in the southwest quarter, on the theory of a resulting trust, and therein alleges that Lewis Davies, in 1900, received the sum of $440.89, in trust for Clyde Davies; that with this and other money, Lewis Davies, in 1909, purchased and took title, in his own name, to the southwest quarter of section 32, and that he has since held in trust for Clyde Davies an undivided one-half interest in the southwest quarter; that Lewis Davies recognized and admitted that he held such interest in trust for Clyde Davies; that Clyde Davies died intestate in March, 1921, leaving as his sole heir his daughter, this appellant; that at the time of her father's death, appellant was ten years of age; that knowledge of the fact that her father had an interest in this property was fraudulently concealed from her, and that prior to December 21, 1934, appellant had no knowledge of her father's interest in the property; that appellant did not know, prior to December 21, 1934, that respondents claimed any interest in the property, adverse to her interest, or that Lewis Davies, her grandfather, had attempted to alienate the interest of appellant.

Of the defendants named, only Docia Davies, Metropolitan Life Insurance Company, and John Hartmeier and wife, appeared and answered the complaint. The Bank of Fairfield, Bank of Rosalia and John Hancock Mutual Life Insurance Company were dismissed from the action. It is apparent that Metropolitan Life Insurance Company was the real party claiming title to the property, adverse to appellant, under and by virtue of a decree of foreclosure, which decree was Before this court in Metropolitan Life Insurance Co. v. Davies, 190 Wash. 329, 67 P.2d 867.

By way of a first affirmative defense, respondent Metropolitan Life Insurance Company alleges that, on May 1, 1929, Lewis Davies, dealing with his sole and separate property, executed to respondent a mortgage on the south half of section 32, to secure the payment of a promissory note in the sum of $15,000; that at the time of the execution of the mortgage, there was nothing of record to indicate that appellant, Mozella E. Davies, or her father, Clyde Davies, had or claimed any right, title or interest in this property, and that respondent, at no time prior to the institution of this action, had any notice or knowledge that either appellant or her father claimed any interest in the property; that in April, 1934, respondent instituted proceedings to foreclose its mortgage, and thereafter, April 19, 1935, a decree of foreclosure was entered, directing the sale of the south half of section 32, and pursuant to the sale, the premises were sold to respondent on June 22, 1935, which sale was subsequently confirmed.

It is also alleged, by way of a second affirmative defense, that Lewis Davies paid to Benjamin Kienholz, in cash, from his own separate funds, the sum of $7,900, for the southwest quarter of section 32, and that Clyde Davies, since deceased, contributed no part of the purchase money, either directly or indirectly.

Appellant in her reply, set out that the south half of section 32 constituted a vested homestead in Lewis Davies, his minor children and his wife, Docia Davies, and that it could not be alienated or encumbered without the joinder of Docia Davies and appellant, Mozella E. Davies; that appellant, since the institution of this suit, has received a deed conveying to her an undivided one-half interest in the south half of section 32 (this being the deed from Docia Davies, executed November 12, 1936); that at the time Lewis Davies executed...