Gunderson v. Gunderson

• Decision Date: 08 July 1901
• Citation: 25 Wash. 459,65 P. 791
• Parties: GUNDERSON v. GUNDERSON et ux.
• Court: Washington Supreme Court

65 P. 791

25 Wash. 459

GUNDERSON v. GUNDERSON et ux.

Supreme Court of Washington

July 8, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Johan Gunderson against Otto Gunderson and wife. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Adolph Munter, for appellants.

HADLEY J.

Johan Gunderson instituted this action against Otto Gunderson and Annie Gunderson, his wife. It is alleged that on the 23d day of April, 1898, plaintiff and said Otto Gunderson entered into a contract by the terms of which plaintiff agreed to convey to said Otto Gunderson, by good and sufficient deed, a tract of land situated in Columbia county in the state of Oregon, and, in consideration of said land being so conveyed, the said Otto Gunderson covenanted and agreed to support and maintain plaintiff from the date of said contract until the death of plaintiff, and that on or about said date said land was duly conveyed in accordance with said agreement. It is further alleged that from the date of said contract to the 14th day of July, 1899, the said Otto Gunderson furnished plaintiff with board and lodging, but that since said last-named date he has failed and refused to contribute in any way to the support of plaintiff; that, by reason of the breach of said contract, plaintiff has been put to an expense of $150 for his board and lodging since the said 14th day of July, 1899, to the date of the commencement of this action; that plaintiff is of the age of 74 years, and has a reasonable expectancy of life of 6.68 years, and, by reason of the breach of said contract, defendants are further indebted to plaintiff in the sum of $1,747.20 for his further maintenance. The answer denies that the land referred to was duly conveyed to said Otto Gunderson in accordance with said agreement, and denies that it was conveyed at any time or at all. It also denies that defendants are indebted to plaintiff in any sum whatever for his maintenance and support. There are also some matters of defense alleged affirmatively in the answer, which are denied by the reply, but for the purposes of this opinion it is not necessary to set them out here. A trial was had before a jury, and a verdict was returned in favor of plaintiff for $1,200. Defendants moved for a new trial, which was by the court denied. Judgment was thereupon entered in favor of plaintiff for the sum of $1,200 and costs, and from said judgment the defendants have appealed.

A number of errors are assigned in the brief of appellants, but we will confine our discussion to the third assignment, which is that the court erred in denying appellants' motion for nonsuit. During the introduction of respondent's testimony, he offered in evidence a written instrument claimed to be a deed for land mentioned in the complaint. It purported to convey said land to the appellant Otto Gunderson, and was signed: 'Johan Gunderson. Annie Carine Gunderson, by Har Attorney in Fact, Johan Gunderson.' The instrument showed upon its face that it was executed in the state of Oregon, and that the land sought to be conveyed was located in said state. No power of attorney is shown in the record, from Annie Carine Gunderson to her husband, Johan Gunderson, authorizing him to execute the purported deed in her behalf. The wife is not named in the body of the deed as being a party to it, and she is not mentioned in the certificate of acknowledgment. Johan Gunderson alone is named as the grantor in the body of the deed, and he alone is named in the officer's certificate as having acknowledged the execution of the instrument. This instrument was offered in evidence in support of the allegation of the complaint that said land was conveyed in accordance with the contract described in the complaint. Objection was made by appellants' counsel to the introduction of this offered instrument for the reason that it appeared that Johan Gunderson was a married man when the instrument was executed that the land must be presumed to be community real estate in the absence of a showing to the contrary, and, since his wife and not joined in its execution, it was therefore void, and was not evidence of any consideration for the contract stated in the complaint. It was further urged in support of the objection that, while it appeared that the land was situated in the state of Oregon, yet, in the absence of averment in the pleading and proof in support thereof to the contrary, it must be presumed that the law of Oregon is the same as our own. The court overruled the objection, and permitted the offered instrument to go to the jury. There was no averment in the complaint concerning the law of Oregon, and no evidence upon that subject. It appears from the record that the theory of the trial court was based upon its construction of the legal effect of certain words in the written contract which called for a deed. The words are as follows: 'Know all men by these presents, that Otto C. N. Gunderson, of the city of Spokane, Spokane county, and state of Washington, for and in consideration of certain lands, to wit, two hundred acres in Columbia county, state of Oregon, being conveyed to him this day by a deed executed, sealed, and delivered to the said Otto C. N. Gunderson by Johan Gunderson, at Portland, Multnomah county, state of Oregon,' etc. The court construed the above words to mean that the deed of Johan Gunderson alone was required by the contract; that it did not call for any deed from the wife, but one for jury what Johan Gunderson could convey for...