Fidelity Nat. Bank of Spokane v. Adams

• Decision Date: 13 April 1905
• Parties: FIDELITY NAT. BANK OF SPOKANE v. ADAMS et al.
• Court: Washington Supreme Court

80 P. 284

38 Wash. 75

FIDELITY NAT. BANK OF SPOKANE v. ADAMS et al.

Supreme Court of Washington

April 13, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by the Fidelity National Bank of Spokane against Melville Adams and others. From a judgment for plaintiff, defendants appeal. Affirmed.

James Hopkins, for appellants.

Happy &amp Hindman, for respondent.

DUNBAR J.

The material allegations of the complaint are to the effect that the plaintiff obtained judgment against the defendants Melville Adams and Prentice Adams in the superior court of Spokane county for the sum of $2,834.75, costs and attorney's fees, etc., on the 24th day of September 1892, etc.; that in the year 1897 said defendants departed from the state of Washington, and never since said time have been within the borders of said state; that on the 27th day of October, 1890, said defendants, in order to cheat, hinder defraud, and delay their creditors, fraudulently caused a deed to be placed upon the records of Spokane county attempting to deed the property over which this controversy is waged to their brother Quincy Adams, which deed was properly recorded in Spokane county; that the deed was never delivered, was made wholly without consideration, and was not intended to pass title to said Quincy Adams, but was put in the name of said Quincy Adams for the sole and only purpose of putting said property out of the reach of the creditors of said defendants; that thereafter, and in carrying out said conspiracy, the said Quincy Adams, at the direction, procurement, and connivance of said defendants herein, caused a deed to be placed upon the records of Spokane county in the name of the defendant herein Charles T. Adams, which deed was properly recorded; that all the transactions by deeds between the brothers were fraudulent; that the property is now held by the said Charles T. Adams in trust for the use and benefit of said Melville Adams and Prentice Adams, who are now the owners of the same, and that said pretended deed of conveyance is a cloud upon the title to said property, and, in order that plaintiff herein may collect said judgment and get a clear title to said property, it is necessary that a court of equity remove the cloud therefrom and set aside said pretended deed of conveyance; that the defendants are insolvent, and have no other property with which to satisfy plaintiff's demand; and judgment is demanded that said conveyance be declared null and void, and that said property be sold to satisfy such claim of the plaintiff and such other creditors as may come in and help to pay the expenses of this action and prosecute the same. A demurrer was interposed to this complaint, which was overruled, and which constitutes the first claim of error.

The contention is that, inasmuch as the complaint shows that the judgment was obtained on the 24th of September, 1892, and that this action was not brought until more than six years had expired, the statute of limitations had run against the plaintiff. It must be borne in mind that this was an action alleging fraud, and that the statute of limitations would not commence to run under our statutory provisions until fraud had been discovered by the aggrieved party; and again, the allegation to the effect that the defendants had moved from the state during the year 1897, and had not been in the state since, was sufficient to protect the complaint from an assault by demurrer. Upon the overruling of the demurrer the defendants answered, pleading a general denial, and setting up as an affirmative defense that,...