Denny v. Schwabacher

• Citation: 54 Wash. 689,104 P. 137
• Parties: DENNY v. SCHWABACHER et al.
• Decision Date: 25 September 1909
• Court: United States State Supreme Court of Washington

104 P. 137

54 Wash. 689

DENNY v. SCHWABACHER et al.

Supreme Court of Washington

September 25, 1909

Department 1. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Action by Victor W. S. Denny against Sigmund Schwabacher and another. From a decree for complaint, defendant Schwabacher appeals. Affirmed.

Harold Preston and G. Ward Kemp, for appellant.

William Martin and John B. Denny, for respondent.

GOSE J.

This action, instituted by the respondent July 1, 1907, to obtain a decree declaring him to be the owner in fee of the property in controversy and to quiet his title, terminated in a decree in his favor on October 10, 1908, from which this appeal is prosecuted. The complaint alleged that the respondent was and since July 16, 1903, had been, the owner and in the possession of the property; that the appellant Schwabacher claimed an interest therein adverse to the respondent, under an execution sale upon a judgment against D. T. Denny and D Thomas Denny; that neither of the judgment defendants at any time owned any interest in the property, but that the same became the separate property of Louisa Denny, wife of D. T. Denny, on October 5, 1889, in virtue of a purchase of the same by her and a conveyance of the legal title to her husband, D. T. Denny, who held the legal title for her until July 16, 1903, at which date they conveyed it to the respondent. The answer denied the respondent's ownership, and alleged affirmatively that the property was acquired as the community property of D. T. Denny and his wife, Louisa Denny; that the appellant, Schwabacher, acquired title as a purchaser at an execution sale upon a judgment in his favor against D. T. Denny and D. Thomas Denny, theretofore entered upon a community indebtedness of D. T. Denny and his wife, Louisa Denny; that the respondent's right to maintain the action was barred by the statute of limitations and by his laches. Louisa Denny was made a cross-defendant, under an allegation in the answer and cross-complaint that she claimed an interest in the property. The reply joined issue on the new matter in the answer. Louisa Denny before the trial answered, disclaiming any interest in the property, and alleging that on the 16th day of July, 1903, she conveyed the same to the respondent by a deed of gift. Upon the issues thus joined the case was tried to the court.

It is admitted that D. T. Denny and Louisa Denny were husband and wife on October 5, 1889, and that on that date the property was conveyed to D. T. Denny, and that the legal title remained in his name of record until July 16, 1903, when it was conveyed to the respondent by D. T. Denny and his wife, Louisa, by a deed which was filed for record on November 20 following. The principal question to be determined is whether the property was purchased with the separate funds of Louisa Denny, and conveyed to D. T. Denny in trust for her. If it was so purchased and conveyed, respondent's title is complete, unless a determination in his favor is precluded by the statute of limitations or his laches. If it was not so purchased and conveyed, the appellant, Schwabacher, acquired title as the purchaser at the execution sale. A brief review of the evidence, therefore, becomes incumbent in order to determine this question. The evidence shows conclusively that D. T. Denny died November 25, 1903; that in 1896 the appellant, Schwabacher, recovered a judgment against D. T. Denny and D. Thomas Denny, which was renewed in 1902; that in 1906 all the right, title, and interest in the property, owned by D. T. Denny on May 8, 1902, was purchased by the appellant, Schwabacher, at a sale made upon an execution issued upon the judgment; that the sale was confirmed; that D. T. Denny and Louisa Denny, in consideration of love and affection, conveyed whatever interest they had in the property to the respondent, their son, on July 16, 1903, and that he has since been in possession thereof; that the deed of conveyance was filed for record on November 20th following; that before the execution sale the respondent caused a notice to be served on the attorneys for the appellant, Schwabacher, and upon the sheriff, notifying them that D. T. Denny owned no interest in the property, and that he caused public notice to that effect to be given at the sale.

There are two applicable fundamental principles of law in the instant case: (1) Property acquired by purchase during marriage is presumed to be community property, and the burden rests upon the spouse asserting its separate...