Hyde v. Heller

• Decision Date: 12 January 1895
• Citation: 10 Wash. 586,39 P. 249
• Parties: HYDE ET AL. v. HELLER ET AL.
• Court: Washington Supreme Court

39 P. 249

10 Wash. 586

HYDE ET AL. v. HELLER ET AL.

Supreme Court of Washington

January 12, 1895

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by Eugene B. Hyde and George H. Leonard against Albert Heller and the heirs of Caroline Heller, his deceased wife, for the rescission of a contract for the purchase of land, entered into with defendant Heller and his wife during her lifetime and a return of the moneys paid under said contract. From a judgment canceling the contract, ordering a repayment of the moneys paid on the purchase price, and declaring the moneys so paid a lien on the land in controversy, defendants appeal. Reversed.

Blake & Post, for appellants.

Turner Graves & McKinstry, Samuel C. Hyde, and Lucius G. Nash, for respondents.

DUNBAR C.J.

This was an action brought by the respondents, Eugene B. Hyde and George H. Leonard, against Albert Heller, the heirs and devisees of Caroline Heller, deceased, and the executors of her last will and testament. The complaint alleges that on September 1, 1889, Hyde entered into a contract with Caroline Heller and the defendant Albert Heller, who were then husband and wife, for the purchase of certain lots in the city of Spokane, for the consideration of $60,000, to be paid $10,000 down, $15,000 on or before one year, $15,000 on or before two years, and $20,000 on or before three years, from the date of the contract; the deferred payments to bear interest at the rate of 10 per cent. per annum, payable semiannually. He was also to pay all street-grade assessments and taxes then a lien upon the premises, as well as all such taxes and assessments as might afterwards be levied thereon. It is alleged that the plaintiff Leonard and one Herbert Bolster each had an interest with the plaintiff Hyde in said contract, Leonard having a one-sixth interest and Bolster having a one-third interest therein, which facts are alleged to have been known to Albert and Caroline Heller. Before the bringing of this action, Bolster sold and assigned his interest in the contract to the plaintiff Leonard. It is further alleged that Caroline Heller, after the execution of the contract in question, to wit, on March 17, 1892, made and executed her last will, a copy of which is set up in the complaint, and which is as follows: "I Caroline Heller, wife of Albert Heller, now 63 years of age, and residing in the city of Spokane, state of Washington, and being of sound and disposing mind and memory, and being mindful of the uncertainty of life and the certainty of death, do make, publish, and declare this my last will and testament, to wit: First. I give, bequeath, and devise to my husband, Albert Heller, one-third of all my estate, both real and personal. Second. I have four children,-namely, Bertha Foorman, wife of Solmon Foorman, now residing in Bishop Creek, state of California; Samuel Heller, whose home is with me; August Heller, now in Kalispell, Montana; and Fannie Heller, whose home and abode is now with me,-and I give and bequeath all of the remainder and residue of my said estate (i. e. 2/3) to the above-mentioned four children, my heirs, in equal proportions, share and share alike, excepting the proportion ( 1/4) of the residue of my said estate, instead of vesting in my daughter Mrs. Bertha Foorman, I desire, and so will, that her portion vest in my said husband, Albert Heller, as trustee for her benefit, and that she shall only have the use of her portion during her lifetime, and at her death to vest in her children. The portion allotted to her to be under the management of my husband. The other three children to have their said portions in their own right immediately after my demise. I further order, desire, and will that upon my death all of my said estate at once vest in my said heirs and my said husband; that no steps to be taken in court whatever except to prove this my will, and that then all proceedings in court shall cease, and that all my property at once vest in the parties mentioned in this will, according to the bequest and promises herein contained. I appoint my husband, Albert Heller, as executor (and trustee), and my daughter Fannie Heller, executrix, of this my last will and testament, and desire and will that no bonds be required of either of them for the discharge of their duties. In witness thereof, I, Caroline Heller, have to this my last will and testament, consisting of one sheet of paper, written on both sides, subscribed my name and set my seal, this 17th day of March, A. D. 1892. [Seal.] Caroline Heller. [Properly witnessed.]" The complaint alleges that on March 8, 1893, Caroline Heller died; on April 26, 1893, her said will was probated in the superior court of Spokane county, and thereupon the said Albert Heller and Fanny Heller entered upon the discharge of their duties as executor and executrix, respectively, of said will, and have continued to execute the trust devolved upon them, etc. Also, alleges the names of the children of the defendant Bertha Foorman, and that they are minors, and that the property in question was either the community property of Albert Heller and Caroline Heller or the separate property of Caroline Heller. And the various payments on the contract were set forth, it appearing that, in addition to the $10,000 paid down, the $15,000 payment was made at the expiration of the first year. No other payments have been made upon the principal, the rest of the payments mentioned in the complaint being payments of interest. The complaint alleges that on April 12, 1893, plaintiffs tendered Albert Heller and Fanny Heller, executor and executrix, at the Traders' National Bank, at which place the contract was payable, $37,174.30, the alleged balance due upon the contract, which tender was refused. The executors, according to the complaint, alleged the confusion of title caused by said will, but insisted that they could and would at some time in the near future obviate the difficulties standing in the way of making such title, and would then make, or cause and procure to be made, a good marketable title to said property. The complaint also alleges that at the time of the tender plaintiffs did not know of the provisions of the will, or of the alleged difficulties in the way of making a good title, and supposed and believed that it was within the power of the executors to cause and procure a good title to be made, but they have since learned that it was impossible for the devisees to make a good title to the property; alleges, further, that time was the essence of the contract, so far as the execution of the deed was concerned. The prayer of the complaint is for a rescission and cancellation of the contract; for judgment against the defendants for the amount of money paid thereon by plaintiffs, together with 10 per cent. interest per annum; that a vendee's lien be declared and established in favor of plaintiffs for the purchase money so paid as aforesaid; "that if the court shall be of the opinion that the plaintiffs are not entitled to the relief herein prayed for, or any part thereof, or are not entitled to rescind said contract, that then, and in that event, the court shall make such decree as shall preserve and establish the rights of these plaintiffs and of the defendants, respectively, in and to said real estate, and all matters and things pertaining to this litigation, and that the court shall grant such other and further relief to these plaintiffs as shall seem meet and equitable." The infant defendants were served with summons by publication. Proof having been made of such service, a guardian ad litem was appointed for them.

There are three answers: The answer of the executors, Albert Heller and Fanny Heller; the answer of the adult defendants, Albert Heller, Bertha Foorman, Samuel Heller, August Heller, and Fanny Heller; and the answer of the guardian ad litem of the infants. These answers generally admit most of the facts alleged in the complaint, but deny that time was the essence of the contract in any particular, except as to the payments of the deferred purchase money; denied that any of such payments could be made to the Traders' National Bank, or that there were any impossibilities, difficulties, or trouble in the way of making a good and marketable title to plaintiffs; denied that plaintiffs were never let into possession of the property, and denied that any tender was ever made to the defendants Albert Heller and Fanny Heller or either of them, of the balance of the purchase money. It is also claimed in the answer that the purchase price was $63,000, instead of $60,000, the first payment of $13,000, instead of $10,000, and that letters testamentary were issued to the executors on May 19, 1893. The answer of the defendants other than the executors contained the following: "And said defendants now offer and tender the plaintiffs and the court their consent that the executor and executrix of the last will and testament of said Caroline Heller, deceased, may execute and deliver to the plaintiffs such deed or deeds of conveyance as may be necessary to convey to them a good, indefeasible, and marketable title in said real estate; or that a commissioner may be appointed by the court for the purpose, or, if the court shall so order and direct, they offer to execute such deed or deeds, in their own proper persons, to said plaintiffs." The executors' answer and counterclaim as to the amount corresponds with the other answers. It also alleges that, upon the execution of the contract, plaintiff Hyde took possession of the property, and has ever since remained in possession thereof. The allegations in regard to payments are substantially like those of the complaint. It also alleges that at the time of the execution of the...