Irwin v. Holbrook

• Decision Date: 28 July 1903
• Citation: 32 Wash. 349,73 P. 360
• Parties: IRWIN v. HOLBROOK.
• Court: Washington Supreme Court

73 P. 360

32 Wash. 349

IRWIN v. HOLBROOK.

Supreme Court of Washington

July 28, 1903

Appeal from Superior Court, Whitman County; Chester F. Miller Judge.

Action by W. D. Irwin against Greenville Holbrook. Judgment for defendant, and plaintiff appeals. Affirmed.

Thomas Neill and A. A. Wilson, for appellant.

John Pattison, for respondent.

MOUNT J.

This is the second appeal in this cause. On the former appeal a judgment dismissing the cause upon the ground that it appeared upon the face of the complaint that the action was barred by the statute of limitations was reversed, and the cause remanded for further proceedings. Irwin v Holbrook, 26 Wash. 89, 66 P. 116. The amended complaint alleges, in substance, that on February 21, 1885, plaintiff was the owner of certain real estate; that on said date the plaintiff conveyed this real estate to defendant pursuant to an agreement to sell the property, and out of the proceeds to pay certain indebtedness of plaintiff, and thereupon to account to and pay to plaintiff any surplus remaining after the payment of said debts: that defendant sold said property for a sum larger than the amount of the debts, but refused to account for or pay to plaintiff the said surplus, or any part thereof. On or about the 1st day of June 1898, plaintiff demanded an accounting, which was refused. The complaint was filed on October 1, 1898. A more complete statement of the allegations of the complaint will be found in the opinion in Irwin v. Holbrook, supra. To this complaint the defendant answered, denying all the allegations thereof except the ownership of the land by plaintiff on February 21, 1885, and also an allegation that at said date there was a mortgage thereon of $300. As a first affirmative defense the defendant alleged, in substance, that on the 21st day of February, 1885, he purchased from plaintiff the land described in the complaint, and paid therefor the sum of $800 in cash, and assumed a mortgage of $300, with interest, against the land; that thereafter plaintiff had no further interest in said lands or the proceeds thereof. For a second affirmative defense, defendant alleges, in substance, the purchase of the land, as in the first affirmative defense; that defendant sold said lands between February 28, 1885, and December, 1891, to divers persons, and that deeds for all of the land sold were placed of record in the auditor's office of Whitman county prior to January 1, 1892, more than three years prior to the commencement of this action; that plaintiff had notice more than three years prior to the commencement of the action that all of said real estate had been sold by defendant; that he acquired said notice prior to the 1st day of January, 1892; that he did not commence this action within three years after said notice; and that the action is barred by the statute of limitations. To these affirmative answers plaintiff demurred on the ground that none of them stated facts sufficient to constitute a defense to the cause of action stated in the complaint. These demurrers ware overruled by the court. Plaintiff then replied, denying each of the allegations contained in the affirmative defenses. On the issues thus formed, a trial was hed before the court. At the close of plaintiff's evidence the court found, among other things, 'that the plaintiff did not commence his action within the time limited by law, and that plaintiff's cause of action, if any he had, is barred by the statute of limitations,' and thereupon dismissed the action. Plaintiff appeals, alleging that the court erred (1) in overruling the demurrer to the second affirmative defense; and (2) in all the findings made. Under the view we have taken of the case, it will be necessary for us to discuss only the first alleged error, and also the finding of fact that the action is barred by the statute of limitations.

1. In support of the demurrer, appellant argues that the plea of the statute of limitations is in the nature of confession and avoidance, and, since the answer contains a denial of the cause of action, the plea of the statute of limitations is inconsistent with the denial of the cause of action. In the case of Seattle National Bank v. Carter, 13 Wash. 281, 43 P. 331, 48 L. R. A. 177, this court, in an exhaustive review of the authorities, came to the conclusion 'that, however diversified the answers may be, they must all contain the essential element of truth, and, if the admission of the truth of one answer necessarily proves the falsity of another, they cannot be allowed to stand.' In Davis v. Seattle National Bank, 19 Wash. 65, 52 P. 526, this court said: 'We are of the opinion that a defendant may deny liability, and at the same time set up a counterclaim or offset, or allege payment, in all cases where there is no direct contradiction in the special facts pleaded.' Defenses are inconsistent only when one in fact contradicts the other. Where there is only a seeming and logical inconsistency, which arises merely from a denial and the plea in confession and avoidance, such defenses are not held to be inconsistent. Bliss on Code Pleading (3d Ed.) § 343; Willson v. Cleaveland, 30 Cal. 192; Lawrence v. Peck, 3 S. D. 645, 54 N.W. 808. So long as different defenses are consistent with the truth, they may be pleaded. If two or more defenses may be true, they cannot be said to be inconsistent. Defenses are inconsistent where the proof of one necessarily disproves the other, or where if one be true the other cannot be. In this case the defendant denies any trust relation to plaintiff. He then pleads as one separate defense, in substance, that he purchased the land outright from plaintiff, and that since the time of this purchase plaintiff has had no interest therein or in the proceeds thereof. He then pleads that plaintiff had notice long prior to the bringing of the action that defendant claimed the land and proceeds, and that the time within which plaintiff might have maintained this action had long since expired. All of these allegations may be wholly true. There is therefore no such inconsistency as would prevent the defendant from pleading them, and the demurrers were for that reason properly overruled.

2. The evidence upon the question whether or not the action is barred is the evidence of the appellant himself, and is substantially as follows: He purchased the land about the year 1884 for $2,200. He deeded the land to the respondent in February, 1885. Respondent then agreed to take the land, sell it, and pay certain debts owing by plaintiff to third persons, and also to pay the appellant whatever remained. Appellant at this time was living at Pullman, in Whitman county. The land adjoined the town of Pullman. Respondent had the land platted into town lots, and sold all the lots. The deeds therefor were placed of record in Whitman county before December, 1891. Appellant lived in Whitman county all the time from 1885 to October 1, 1898, when the action was begun, except about 15 months, during the years 1887 and 1888, when he was in Idaho, and except about a year from...