Johnson v. Johnson

• Decision Date: 02 December 1911
• Citation: 66 Wash. 113,119 P. 22
• Court: Washington Supreme Court
• Parties: JOHNSON v. JOHNSON et al.

119 P. 22

66 Wash. 113

JOHNSON v. JOHNSON et al.

Supreme Court of Washington

December 2, 1911

Department 2. Appeal from Superior Court, King County; J. D. Hinkle Judge.

Action by August A. Johnson against Anna E. Johnson and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss.

George B. Cole, for appellants.

F. B Carpenter, for respondent.

DUNBAR C.J.

Respondent August A. Johnson, and appellant Anna E. Johnson were formerly husband and wife, and owned certain community property in King county, Wash., among which was lot 10, block 30, of Gilman Park, the land in controversy. The appellant Johnson brought an action for divorce against the respondent Johnson, and a decree of divorce was granted in the superior court of King county, Wash. A division of property was made by the court, and the said lot 10 was awarded to the respondent. There was also a judgment for $100 attorney's fees, and costs amounting to $40, entered against respondent Johnson. This judgment was not paid, and on April 22, 1908, the sheriff of King county levied on said block 10, and sold it on July 6, 1908, to appellant Cole for $154.80. During all the time between the awarding of the judgment against the respondent on January 27, 1908, and March 10, 1910, the said lot was rented by respondent to one Charles Hegstrom, and on March 10, 1910, appellant Cole served a notice of ownership and to pay rent on said Hegstrom, and on February 14, 1911, this action was brought by respondent Johnson, asking that the sale of said lot 10 be decreed fraudulent and void, and that said sale be set aside and vacated, alleging a decree of divorce, the awarding of lot 10 to the respondent, the renting of the same to Hegstrom; that the sale was fraudulently procured by the appellant Cole; that no notice of sale had been served upon him, and that he did not know that any levy was ever made on said lot until about December 1910, alleging publication in an obscure newspaper; that the appellant Cole was in possession of the lot, and claimed the same as his property and the property of his wife, and other matters not necessary to be mentioned. The appellants denied the material allegations of the complaint. The respondent replied to some immaterial affirmative matters in the answer, and the case was tried before Hon. J. D. Hinkle, a visiting judge in King county, with the result that the sale of lot 10, block 30, Gilman Park, King county, Wash., made by the sheriff of King county on the 6th day of June, 1908, was declared null and void, set aside, and vacated. It was also adjudged that the plaintiff, the respondent in this case, should recover the sum of $25 for the rental value of said premises from the time possession was taken of it by appellant Cole up to the time of the trial. From this judgment this appeal is taken.

Inasmuch as the defendants answered and proceeded to the trial of the cause on the merits, we will not discuss the first assignment, viz., that the court erred in overruling the demurrer to the complaint. But the whole record convinces us that the court did err in adjudging that the deed to appellant Cole should be set aside, canceled, and annulled. This case, it seems to us, falls squarely within the rule announced in Merritt v. Graves, 52 Wash. 57, 100 P. 164, excepting that that case was free from any question of estoppel on the part of the plaintiff, the action for relief having been brought before the confirmation of sale in the form of objections to the confirmation, and here there is an attack upon the judgment of confirmation and of sale more than two years and a half after sale and one year after the deed had issued to the appellant. It is true that respondent testifies that he was not served with notice of the sale, and that notice was not given according to law, but this allegation he fails to substantiate by proof.

He was not entitled under the law to personal notice. Laws 1899, p 86, § 3. It fairly appears from the testimony that constructive notice was given, and, so far as the personal notice is concerned, the appellant testifies in the most positive manner that, shortly after the judgment was rendered, he told the respondent that the judgment was a lien on his property, and that he must satisfy the judgment, or that he (appellant Cole) would...