Heintz v. Brown

• Citation: 90 P. 211,46 Wash. 387
• Parties: HEINTZ v. BROWN et al.
• Decision Date: 28 May 1907
• Court: United States State Supreme Court of Washington

90 P. 211

46 Wash. 387

HEINTZ v. BROWN et al.

Supreme Court of Washington

May 28, 1907

Appeal from Superior Court, Adams County; W. T. Warren, Judge.

Action by Alice Heintz against Charles R. Brown and another. From a judgment for plaintiff, defendants appeal. Reversed, with directions.

Tolman & Kimball, for appellants.

Zent &amp Lovell, for respondent.

RUDKIN J.

In the month of December, 1900, the plaintiff, Alice Heintz, entered into a contract with the Northern Pacific Railway Company for the purchase of fractional section 5, township 20 N., range 38 E. W. M., containing 208 and a fraction acres. Under the terms of this contract the purchase price was to be paid in five annual installments of about $62 each. Three of these installments were paid by the plaintiff out of her separate funds, acquired by bequest from her deceased father. On the 25th day of January, 1904, she borrowed money on this land from the Holland Bank to pay the deferred payments, or balance due, and on that date received from the railway company a warranty deed reciting a consideration of $361. In the year 1901 the plaintiff entered into a further contract with the Oregon Mortgage Company for the purchase of the S.W. 1/4 of N.W. 1/4, the N.E. 1/4 of the N.W. 1/4, the N.W. 1/4 of the N.E. 1/4, and lot 1 of section 8, in the same township and range. At the time of the execution of this contract she paid $300 on the purchase price from her separate funds, acquired as above stated. On the 25th day of January, 1904, she borrowed money from the Holland Bank on this land to make the deferred payments, and received a warranty deed from the mortgage company of that date, reciting a consideration of $650. In the year 1902 the plaintiff entered into a further contract with one Kohl for the purchase of fractional section 7 in the same township and range. No payments have been made on the last-mentioned contract, except interest paid out of separate funds. On the 24th day of July, 1905, the defendant Gilson, as sheriff of Adams county, levied on all the above-described lands under and by virtue of an execution issued out of the superior court of Lincoln county on a certain judgment therein entered in an action wherein Charles R. Brown was plaintiff, and the plaintiff herein and John T. Heintz, her husband, were defendants, and gave notice that he would sell the same at public auction to satisfy the above-mentioned judgment and execution. John T. Heintz and the plaintiff, Alice Heintz were husband and wife during all the times herein mentioned. The judgment sought to be enforced against the plaintiff was for a community debt, and the character of the land in controversy, whether community property or the separate property of the wife, is the only question presented on this appeal. The plaintiff had judgment below enjoining the execution sale, and from that judgment the defendants appeal.

The respondent has moved to dismiss the appeal for the reason that the appellant sheriff has no interest in the controversy, and cannot appeal from the judgment against him. Counsel has suggested no reason why an officer, who has been restrained from the performance of a duty enjoined upon him by law, cannot appeal from the adverse judgment, and we perceive none. The motion to dismiss is therefore denied.

From the foregoing statement it will be seen that the property acquired from the railway company and the mortgage company was paid for in part by the separate funds of the wife, and in part by money borrowed on the property in which she...