Davis v. Ford

• Decision Date: 07 July 1896
• Citation: 15 Wash. 107,45 P. 739
• Parties: DAVIS v. FORD ET AL.
• Court: Washington Supreme Court

45 P. 739

15 Wash. 107

DAVIS v. FORD ET AL.

Supreme Court of Washington

July 7, 1896

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Doliska B. Davis, as administratrix of the estate of B. N L. Davis, deceased, against A. Ford and E. E. Taylor, to enjoin defendants from entering on certain timber land belonging to the estate, and cutting and removing timber therefrom. From the decree both parties appeal. Affirmed.

Lindsay, King & Turner and Moore & Pittman, for plaintiff.

Million & Houser and Jas. O. Barrow, for defendants.

ANDERS J.

In the month of May, 1891, one B. N. L. Davis died intestate, in Skagit county, owning a large tract of land therein situated, in sections 3, 4, 9, and 10, in township 34 N., of range 4 E., and lying north of the county road leading from Mt. Vernon to Clear Lake, and between the Nookachamps creek and Skagit river. The plaintiff is the widow of the said deceased, and soon after his death was appointed administratrix of his estate. On March 8, 1895, as such administratrix, she brought this action in the superior court of Skagit county to enjoin the defendants from trespassing upon the lands above mentioned, and from cutting, removing and appropriating the timber thereon, and alleged in her complaint, among other things, that the defendants have wrongfully entered upon said land and premises, and are now wrongfully and unlawfully trespassing thereon against plaintiff's will and without her consent, and are wrongfully and unlawfully cutting and removing the timber growing thereon, and appropriating the same to their own use and benefit, and thereby causing great and irreparable injury to said estate; that the defendants have refused to desist from so trespassing upon said lands, and threaten to continue to cut, haul, and appropriate said timber to their own use and that, unless they are restrained by an order of this court, they will cut, remove, and appropriate all the timber of value growing on said lands,-and asked for a temporary restraining order commanding the defendants, their agents, servants, and employés, to refrain from cutting, hauling, removing, or appropriating to their own use any timber or logs growing on said land or belonging to said estate, and from entering upon or trespassing on such lands or any part thereof, which restraining order was duly issued by the court.

The defendants, answering, denied that they had wrongfully entered upon the lands and premises described in the complaint, or were wrongfully upon said lands, or against plaintiff's will or consent, or were trespassing thereon; that they were wrongfully cutting timber, or removing timber growing thereon, or that they were wrongfully or unlawfully appropriating the same, or any part thereof, to their own use; and that they had caused great or irreparable injury to said estate, or any injury or damage whatever. And for an affirmative defense the defendants alleged that on September 27, 1892, the plaintiff, as such administratrix, entered into a certain written contract of sale with the defendants, whereby she, as such administratrix, bargained, sold, and conveyed to the defendants all the merchantable timber standing, lying, and being upon all the land lying north of the county road leading from Mt. Vernon to Clear Lake, in said county, and west of the Nookachamps, and between said county road and the Skagit river, located in sections 3, 4, 9, and 10, in township 34 N., range 4 E.; that defendants were, by the terms of said contract, given until March 1, 1895, to cut and remove said timber, and were to pay the plaintiff therefor the sum of $1,200; that the defendants, relying upon the representations of the plaintiff and her attorney, who drew the contract of sale, that plaintiff had full power and authority to execute said contract, entered into the same; that in pursuance of said agreement the defendants, on September 27, 1892, paid the plaintiff as such administratrix the sum of $250 as part of the purchase price for said timber, and subsequently made other payments on account thereof, which are specified; that in September, 1894, it was mutually agreed between the plaintiff and the defendants, in consideration of the payment of $75 by defendants to plaintiff, that the time for cutting and removing the said timber should be extended from March 1, to October 1, 1895; that at the time of the making of said contract and sale it was necessary for the plaintiff as such administratrix to raise funds with which to pay the debts of her intestate's estate and support the family, and that the contract was entered into by the plaintiff as such administratrix for the purpose of raising money with which to meet the expenses of administration and pay the debts and family allowances; that the said sale was made after full and careful investigation by plaintiff as to the worth and value of said timber, and that plaintiff at such time deemed it to the best advantage of the estate to make the sale; that said sale was fair, and was to the best interest of all parties concerned; that the plaintiff and said estate have received the full value of the property so sold; that the plaintiff, as such administratrix, has accounted for the money paid to her by defendants, and has appropriated the same to the use and benefit of the estate, and has applied the same in payment of debts of the estate and in paying the family allowance ordered by the court in the matter of said estate to plaintiff and the minor children of plaintiff and her deceased husband; that, in pursuance of and immediately after the making of said contract, the defendants entered upon and took possession of said premises, and put the same in a condition to enable them to cut and remove said timber by building roads, etc., and expended thereon the sum of $1,200, and that such possession was taken and said improvements made with the knowledge, approval, and consent of the plaintiff as such administratrix.

To this affirmative defense the plaintiff interposed a demurrer on the grounds that the facts stated were insufficient, and that the court had no jurisdiction. The demurrer was overruled and an exception taken. The plaintiff then replied to the affirmative matter set up in the answer, admitting the making of a contract of sale of timber with defendants, but averring that the contract as made only included parts of the premises described in the complaint and answer, specifying them, and alleging that defendants were to have until October 1, 1894, in which to cut and remove said timber, and that all of the timber on said lands had been cut and removed by the defendants. For a further reply to the defendants' affirmative defense plaintiff alleged that she had never obtained any authority from the court to enter into the contract mentioned, and that she had no right or authority to make such contract or to sell said timber. She also alleged that the defendants had, without any authority, cut from other lands, described in the complaint, other timber, which the defendants have appropriated or are about to appropriate to their own use, and for which she asked judgment against the defendants in the sum of $1,371. The defendants moved to strike out the reply on the ground that it was not responsive to the complaint, and not a proper reply, and to strike out the second affirmative defense set forth in the reply for the reason that it was irrelevant and immaterial, and not responsive to the issues of the case, which motions were denied, and exceptions allowed. The defendants also moved for judgment on the pleadings, and that motion was also denied, and an exception noted.

It appears that the instrument of writing mentioned in the pleadings had been lost by the attorney for the plaintiff, with whom it had been deposited for safe-keeping, and both parties gave evidence as to its contents. Upon the trial the court found as facts that in September, 1892, the plaintiff, as administratrix of said estate, sold all the merchantable timber fit for logging purposes on certain specified portions of the premises described in the complaint and answer; that the contract of sale was in writing, and that by its terms the defendants were to have until the 1st day of March, 1895, in which to cut and remove the timber, which time was for a...