Engstrom v. Peterson

• Decision Date: 08 July 1919
• Docket Number: 15325.
• Citation: 107 Wash. 523,182 P. 623
• Court: Washington Supreme Court
• Parties: ENGSTROM v. PETERSON.

182 P. 623

107 Wash. 523

ENGSTROM v. PETERSON.

No. 15325.

Supreme Court of Washington

July 8, 1919

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Hanna Engstrom, administratrix of the estate of Ingeborg Turnquist, deceased, against Charley E. Peterson. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.

H. B. Madison, of Kent, and Tucker & Hyland and S H. Steele, all of Seattle, for appellant.

Elias A. Wright and Sam A. Wright, both of Seattle, and Ralph Woods, of Tacoma, for respondent.

TOLMAN J.

Respondent as administratrix of the estate of Ingeborg Turnquist deceased, instituted this action for the purpose of establishing that her decedent in her lifetime acquired title to an undivided half interest in a certain 10-acre tract of land in King county, that she was a tenant in common with appellant, the owner of the other undivided half interest, up to the time of her death, and prayed that the lands be partitioned. From a judgment establishing such title and tenancy and directing that partition be made, appellant brings the case here on appeal.

It appears that Ingeborg Turnquist prior to the year 1901 lived in Tacoma in a small two or three room house owned by her, but standing on leased ground, and supported herself by going out by the day in the performance of domestic services. While so situated, she met appellant, who was a sailor by occupation, employed on boats plying between Puget Sound points and San Francisco. About the year 1901 these persons began living together, and held themselves out as husband and wife, though in fact they were never married. With the exception of a time when both were employed at Walla Walla, they continued to so live together in Tacoma, each continuing his or her gainful occupation as theretofore; appellant, of course, being absent for longer or shorter periods as his calling demanded. In 1908 appellant abandoned seafaring, the woman sold her home, for what amount does not appear, and they removed to King county near Kent, where they occupied rooms in a house belonging to and occupied as a home by one John Lybeck and his wife. On May 15, 1908, appellant purchased 10 acres of land from the Lybecks, for which he agreed to pay $600, and on that day he received a written receipt from John Lybeck for $200 paid in cash as a part of the purchase price; appellant testifying that this money was a part of his individual savings accumulated while employed at Walla Walla. After making the purchase, appellant went to Alaska, where he appears to have found employment for the summer, leaving the woman known as his wife still occupying the rooms in the Lybeck home. He returned in the fall, spent the winter there with her, and again went to Alaska for the summer of 1909. In November, 1909, having come back from Alaska with, as he says, some $900 as the fruits of his season's work, he went to the office of an attorney or notary in Kent with Mr. and Mrs. Lybeck, where a warranty deed was prepared and duly executed by Mr. and Mrs. Lybeck conveying the 10 acres of land theretofore purchased. The deed, which is in evidence, is upon a printed blank, generally known as the statutory form, and the blanks are filled by the insertion of the names of the Lybecks as grantors and the name of appellant as grantee, a description of the land, and the date, all completed in typewritten form. As the deed now appears, after the name 'Charley E. Peterson,' typewritten, there appears written with a pen and in a hand totally dissimilar to the signatures of either of the grantors the words 'and Ingeborg Peterson, His Wife.' Mr. Lybeck has since died, but his wife and brother were produced as witnesses upon the trial. The former testified that she, her husband, and appellant went to Kent on the day the deed bears date; that the deed as there prepared and executed was without the interlineation 'and Ingeborg Peterson, His Wife'; that the deed was delivered to appellant as executed; that they all returned home together, and the deed was there shown to the woman she knew as Mrs. Peterson; who had remained at home while the deed was being executed in Kent, and who, upon the deed being exhibited to her, became angry because her name was not in it as a grantee; that Mr. Lybeck then explained to her that, as she was appellant's wife, the property became community property belonging to both without her name being written into the deed, and that upon the death of either the title would vest in the survivor, but, according to Mrs. Lybeck, deceased declared that she would see that her name went into the deed. Mrs. Lybeck further testified that appellant and his supposed wife took the deed with them to the part of the house which they occupied, and that later it was returned by one of them to Mr. Lybeck for the purpose of having it recorded, and that he did record it. And she further testifies that the interlined name was not in the deed when it was returned from the auditor's office, though in this she was manifestly in error, as the auditor's record shows the grantees to be 'Charley E. Peterson and Ingeborg Peterson, His Wife.' The brother also testified that he saw the deed after its execution and delivery, though he was unable to fix the date definitely, and that the interlined name was not in the deed when he examined it. Appellant, a witness in his own behalf, was asked:

'At the time this deed was executed, were those words 'and Ingeborg Peterson, His Wife,' written in there?'

To which an objection was interposed, based upon the statute (section 1211, Rem. & Bal. Code) which limits the testimony of a party in interest where the adverse party sues or defends as executor or administrator. This statute has been considered in many cases, and frequently quoted; but it may not be out of place to again say that the testimony forbidden is 'as to any transaction had by him with or any statement made to him by...