Eckley v. Bonded Adjustment Co.

• Decision Date: 12 March 1948
• Docket Number: 30443.
• Citation: 190 P.2d 718,30 Wn.2d 96
• Parties: ECKLEY et ux. v. BONDED ADJUSTMENT CO. et al.
• Court: Washington Supreme Court

190 P.2d 718

30 Wn.2d 96

ECKLEY et ux. v. BONDED ADJUSTMENT CO. et al.

No. 30443.

Supreme Court of Washington

March 12, 1948

Department 2

Action by Edwin D. Eckley and Cora E. Eckley, his wife, against Bonded Adjustment Company, a corporation, and Ralph M. Smith as Sheriff of Spokane County, Washington, to quiet title to realty, for an injunction, and for damages, wherein the Bonded Adjustment Company filed a cross-complaint. From a judgment granting the plaintiffs an injunction but denying plaintiffs any damages and awarding the Bonded Adjustment Company damages on its cross-complaint, the plaintiffs appeal.

Cause remanded with instructions to amend judgment in accordance with opinion and in other particulars judgment affirmed.

Appeal from Superior Court, Spokane County; Carl C Quackenbush, judge.

Carl W Swanson, of Spokane, for appellants.

Clarke & Ecklow, of Spokane, for respondents.

BEALS Justice.

Anna Margret Harnisch, a widow, residing at Tekoa, Washington, by a written contract bearing date December 1, 1943, agreed to sell to Clifford H. Eckley and Annette E. Eckley, husband and wife, then residing at Spokane, lot 5 in block 13 of Broadview Addition to Spokane Falls, now Spokane, spokane county, Washington, for thirteen hundred dollars, fifty dollars of which was paid in cash, the balance to be paid in monthly installments of twenty-five dollars each, with interest. The contract contained the usual clause providing for forfeiture upon nonpayment of any monthly installment. The vendees took possession of the property, residing in a small cottage located thereon.

The defendant in this action, the Bonded Adjustment Company, a corporation, having brought a suit against the Eckleys, recovered judgment against them, by default, September 8, 1944, for the sum of $211.28, including costs. At the time of the rendition of the judgment, the Eckleys were still in possession, under their contract of purchase, of the property referred to above.

During the summer of 1945, Clifford Eckley was absent from home, in the employ of the Federal merchant marine, and Mrs. Annette Eckley was without sufficient funds for the support of herself and her child. Edwin D. Dckley (Clifford Eckley's brother) made the payments due upon the real estate contract for the months from July to October, both inclusive, 1945.

Annette E. Eckley filed Before the superior court for Spokane county, September 5, 1945, a complaint against Clifford H. Eckley, praying for a decree of divorce and asking, inter alia, that the equity of the parties in the real estate above described and the constract be awarded to her.

During the month of October, 1945, the plaintiffs in this action, Edwin D. and Cora E. Eckley, husband and wife, moved into the premises above described, and proceeded to remodel the building located thereon so that it could be used as a restaurant or fountain lunch, a bakery, and for the sale of confectionery. Annette E. Eckley and her child continued to reside in the premises with her brother-in-law and his wife.

The defendant Bonded Adjustment Company, November 2, 1945, caused an execution to be levied upon its judgment against Clifford and Annette Eckley. The execution was levied upon the property above described, and a notice of sale was posted upon the premises and called to the attention of plaintiff Edwin D. Eckley. The premises were sold at sheriff's sale, December 8, 1945, to the plaintiff (the defendant here) for the sum of ten dollars. Edwin Eckley attended the sale, but made no bid.

Immediately thereafter, the defendant demanded possession of the premises from the Eckleys, who refused to deliver possession, the plaintiffs having maintained possession of the premises ever since.

An interlocutory order was entered in the action for divorce brought by Annette Eckley, December 13, 1945, the equity in the premises above described being thereby awarded to her.

December 14, 1945, plaintiff Edwin Eckley paid to Mrs. Harnisch the balance due on the real estate contract covering the premises above described, such balance then amounting to $777, and received from Mrs. Harnisch a warranty deed to the premises, Edwin D. and Cora E. Eckley being named as grantees.

On the same day, Annette Eckley and Edwin Eckley signed a written agreement whereby Annette Eckley, for a valuable consideration, sold, assigned, and set over to Edwin Eckley all her right, title, and interest in and to the contract between Mrs. Harnisch, as vendor, and Clifford and Annette Eckley, as vendees.

A few days later, the defendant Bonded Adjustment Company again demanded possession of the premises from the Eckleys, who again refused to deliver possession.

December 6, 1946, Edwin D. Eckley deposited with the sheriff of Spokane county the sum of $10.80, demanding a certificate of redemption of the premises from the sheriff's sale above referred to, and received such a certificate.

December 28, 1946, defendant caused a second execution to be levied against the property, based upon its judgment referred to above, and, January 13, 1947, this action was instituted by plaintiffs Edwin D. and Cora E. Eckley, naming as defendants the Bonded Adjustment Company, a corporation, and Ralph M. Smith, as sheriff of Spokane county, Washington.

In this opinion, we shall refer to defendant Bonded Adjustment Company, a corporation, as the sole defendant (respondent) in the action.

The action was tried upon plaintiffs' second amended complaint, and the defendant's answer thereto.

The gist of plaintiffs' complaint is that they were the owners in fee simple of the property above described, pursuant to the deed above referred to, delivered to them by Mrs. Harnisch, dated December 14, 1945. Plaintiffs' complaint contains allegations covering the contract between Mrs. Harnisch and Clifford H. and Annette Eckley, referred to above, and also the entry of judgment in defendant's favor against Clifford H. and Annette Eckley, and levy of execution on the property pursuant to that judgment, the sale of the property, and the redemption by plaintiffs from that sale. Plaintiffs then allege the alias execution issued by defendant upon its judgment and the second levy upon the property pursuant to that execution, and that plaintiffs' title to the premises is clouded by the levy.

Plaintiffs demanded judgment quieting their title to the property, enjoining defendant from proceeding under the pending execution, awarding plaintiffs judgment against defendant for damages in the amount of two hundred fifty dollars, and prayed for equitable relief.

Defendant answered, denying plaintiffs' ownership of the property, pleading the contract between Mrs. Harnisch, as vendor, and Clifford and Annette Eckley, as vendees, alleging that this contract was in good standing, December 14, 1945; that plaintiffs could receive title to the property only by assignment by Clifford and Annette Eckley of their contract to purchase the premises, and that the assignment of that interest in the contract, executed by Annette Eckley and not by Clifford H. Eckley, was insufficient to operate as an assignment of the real estate contract.

Defendant further alleged that, at the time of the assignment, the community of Clifford and Annette Eckley owned no interest in the property because of the sale by the sheriff under the first levy, pursuant to defendant's judgment. Defendant further alleged that plaintiffs had no right to redeem the property, and that any certificate of redemption delivered to them by the sheriff was void and of no effect.

Defendant pleaded affirmatively that the interest of Clifford and Annette Eckley in the property which was sold pursuant to the first levy above referred to, was personal property and that there was no right of redemption from that sale, and, in the alternative, that, it the interest of Clifford and Annette Eckley constituted real estate, defendant was entitled to the immediate possession of the premises and became entitled to rents and profits arising therefrom during the period of redemption; that Annette Eckley had no title or equity in the property capable of assignment, and that plaintiffs had no right to redeem from the sheriff's sale, they having acquired only the rights held by Clifford and Annette Eckley under the latter's contract of purchase. Defendant further alleged that a conspiracy existed between all the Eckleys and Mrs. Harnisch to defeat defendant's lien upon the property, and that the rental value of the property was fifty dollars a month. Defendant prayed for dismissal of the action, and for relief in accordance with the allegations in its answer.

Plaintiffs replied with denials to the affirmative allegations in defendant's answer.

The cause was tried to the court, and resulted infindings, in the main, as above set forth. The court further found that the plaintiffs failed to prove any recoverable damages against the defendant, and that the reasonable rental value of the premises, during the year of redemption, amounted to ten dollars a month.

The trial court concluded that the plaintiffs were entitled to a decree enjoining the sheriff from selling the premises in question, pursuant to the execution upon the deficiency judgment owned by defendant, which was levied on the property December 28, 1946, because the deficiency judgment at the time of the levy, was not a lien against the real estate, the property having been acquired by the plaintiffs December 14, 1945, then subject only to the sheriff's sale of December 8, 1945, and defendant's rights under that sale.

The court further concluded that plaintiffs were not entitled to recover any damages against the defendant, no damages having been proved; that, December 8, 1945, upon the...