Hayden v. Zerbst

• Decision Date: 28 March 1908
• Citation: 94 P. 909,49 Wash. 103
• Parties: HAYDEN v. ZERBST et al.
• Court: Washington Supreme Court

94 P. 909

49 Wash. 103

HAYDEN v. ZERBST et al.

Supreme Court of Washington

March 28, 1908

Appeal from Superior Court, Clarke County; W. W. McCredie, Judge.

Action by the Portland & Seattle Railway Company against Mary Jane Hayden and another. From a judgment for plaintiff and her codefendant, Mary Jane Hayden appeals. Affirmed.

McMaster & Back, for appellant.

E. M Green, for respondents.

MOUNT J.

The Portland & Seattle Railway Company brought an action against the appellant and the respondent Reinhold Zerbst to condemn for railway purposes all of lot 8 in block 35 in the city of Vancouver, as platted by Esther Short. These two defendants each answered separately, Reinhold Zerbst claiming to be the owner of the whole lot, and Mary Jane Hayden claiming an undivided one-half interest therein. Thereafter a judgment in condemnation was entered, and the lot was taken by the railway company. The damages to the owner were assessed at $1,200, which was paid into court. Thereupon the court tried out the question of title to the lot, in order to determine the proper disposition of the $1,200. Upon this trial the court found that Reinhold Zerbst was entitled to all the money, and judgment was entered accordingly. Mary Jane Hayden appeals from that order.

There is no dispute about the facts. They are principally of record, and are as follows: The lot in question was a part of the donation land claim of Amos Short and wife, Esther Short. In 1855 this lot was platted as a part of Vancouver by Esther Short. In 1859 Esther Short, by a quitclaim deed, conveyed the lot to Sumner Barker. Thereafter there were many other conveyances of portions of the Short donation claim, and in order to perfect the title, which had become quite complicated and uncertain, a committee purchased from the heirs of Esther Short all their interest in the addition and subsequently, on May 10, 1880, this committee deeded the lot in question to six parties, one being Gay Hayden. Gay Hayden and Mary Jane Hayden, the appellant, were husband and wife from the year 1880 until May, 1902. On March 10, 1886 Gay Hayden and Mary Jane Hayden, his wife, entered into an agreement as follows: 'Whereas Gay Hayden and Mary Jane Hayden, his wife, residents of Clarke county, Washington Territory, have entered into an agreement this day concerning their property in said territory, and have divided their community property, and have caused to be conveyed, set over assigned, and delivered each to the other his or her allotted share of said property, to the end and with the intent that each of said parties shall hold or enjoy his or her share of said property in severalty and as separate property; now, therefore, in consideration of the premises and of one dollar by each to the other paid said Gay Hayden and Mary Jane Hayden do mutually covenant and agree, each to and with the other, that from this date henceforth each shall have, hold, and enjoy in severalty, and as separate property, whatever and all lands, goods, chattels, and personal property of every description which either shall acquire, earn, or produce while they shall remain husband and wife, without any claim, interference, or interruption of either by the other, and each hereby surrenders unto the other the sole, separate, and absolute possession and control of all property which each of said parties has received under and by virtue of the division aforesaid. In witness whereof the said parties hereunto set their hands and seals in duplicate this 10th day of March, A. D. 1886. [Signed and witnessed.]' This agreement was recorded in the record of deeds in the auditor's office of Clarke county, where the land was located. Thereafter Gay Hayden and Mary Jane Hayden lived separate and apart, and conducted business separately. They bought and sold real estate without the other joining in the conveyances. In 1892 the other five parties who had obtained title from the heirs of Esther Short conveyed by quitclaim deed all their interest in the lot in question to Gay Hayden. Mary Jane Hayden joined in this deed to her husband. In March, 1893, Gay Hayden obtained a tax deed for this lot from the city of Vancouver, being the purchaser at a tax sale. He also in the same year obtained a tax deed from the county, being the purchaser at a county tax sale. In 1894 he also...