Lanigan v. Miles

• Decision Date: 04 May 1918
• Docket Number: 14362.
• Citation: 102 Wash. 82,172 P. 894
• Court: Washington Supreme Court
• Parties: LANIGAN et al. v. MILES (LANDIS, Intervener.

172 P. 894

102 Wash. 82

LANIGAN et al. v. MILES (LANDIS, Intervener.

No. 14362.

Supreme Court of Washington

May 4, 1918

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by John T. Lanigan and others against Thomas W. Miles, in which action Etta Landis intervened as plaintiff. Decree for defendant, and plaintiffs appeal. Affirmed.

Vanderveer & Cummings, H. McC. Billingsley, and Welch & Dorr, all of Seattle, for appellants.

Farrell Kane & Stratton and Jones & Riddell, all of Seattle, for respondent.

CHADWICK J.

Thomas W. Miles and his wife, Catherine, natives of Ireland, were married in the state of Pennsylvania. They came to the state of Washington in 1861, and settled near Vancouver. They purchased a farm. The title to the land was taken in the name of Catherine Miles. In 1875 the family then consisting of the parents and six children, Mary, afterwards Mary Lanigan, the mother of the plaintiffs, Etta, now Etta Landis, the intervener, John, James, Catherine W., and Thomas W., moved to Newcastle in King county, while the father and two of the boys worked in the coal mines. The mother for a time kept boarders, the older girls working in and about the house. The family moved to Seattle in 1880, where they purchased lot 3, block G, of A. A. Denny's addition to Seattle, for the sum of $1,000. The purchase price was paid in cash. Thomas Miles went to work in the yards of his old employer, the Columbia & Puget Sound Railroad Company. He continued in this service for about 20 years, or until one year before his death, which occurred in 1902. After the fire of 1888, a hotel building was built on lot 2 at a cost of $6,500. To meet this obligation, two mortgages were executed, one for $2,500, in favor of Alonzo F. Hill, the other for $4,000, in favor of one Bersch, a son-in-law, then husband of intervener, Etta Landis. These mortgages were executed by Catherine Miles and Thomas Miles. The obligation represented by the Hill mortgage was later renewed. When renewed, the note and mortgage were signed by Catherine Miles alone. Mr. Bersch operated the hotel, and his mortgage was absorbed by credits for rent. In 1891, or 1892, he and his wife gave up the hotel, which was thereafter conducted by Mrs. Miles.

In 1897 a Mrs. Welch, a friend of the family, gave Mrs. Miles lot 3, in block 37, A. A. Denny's addition. This property was later improved with a building suitable for a rooming house with stores on the ground floor. In 1902, at a time when all the children were of full age, Thomas Miles, the father, died intestate. No petition for the administration of his estate was ever filed. Mrs. Miles continued to operate the two properties until 1907, when she deeded both lots to her son, Thomas W. Miles, who has since conducted the business as his own. The deed to Thomas W. Miles is, in form, a warranty deed, without exceptions or limitations. It purports to convey the full title. In 1909 Mary Lanigan, the oldest daughter, brought an action, her sister Etta Landis, being joined as plaintiff, against her mother and her brothers, John, James, and Thomas W. and her sister Catherine, to have apportioned and set aside to them a one-twelfth interest in the property as an estate of inheritance from their father, Thomas Miles. They set up the intestacy of the father, that no administration of his estate had been had, that there were no debts, and no reason for an administration, and asked that their respective shares be set aside to them. Issues were joined, the defendants denying that the property was other than the separate property of Catherine Miles, and affirmatively alleging that Catherine Miles had conveyed the property to her son, Thomas W., as the owner, and the plaintiffs had no interest as owners, or otherwise, therein.

The case never came to trial, but was dismissed upon stipulation of counsel after issue joined. Mrs. Landis now disclaims any interest in the action brought by Mrs. Lanigan, and repudiates the authority of the attorney of record, and while we think the record hardly bears her out in this, our view of the case is such that we may admit that she is right in her contention, and that the judgment of dismissal did not operate as an estoppel against her, or as res adjudicata of her right to intervene in this case. And we may also admit that the present plaintiffs, although prosecuting the action as the heirs at law of Mary Lanigan, deceased, are not estopped by the record of the former case to maintain this action to recover their mother's share of the joint estate of Thomas and Catherine Miles.

We are referring to the former action solely for the purpose of introducing the deposition of Catherine Miles, taken while that action was pending, and for use at the time of the trial, if her death should occur before the case could be heard. Mrs. Miles there testified that she was the owner of the property, that she had bought it with her own savings, that it had always been understood between her husband and herself that he had no interest in it, and that he did not want any.

The testimony of Mrs. Miles is borne out by the records. The title to the Seattle property was taken in her name, the word 'homestead' was indorsed on the margin of the deed, and if, as Mrs. Landis, the intervener, insists, Mr. Miles negotiated the trade, and Mrs. Miles had nothing to do with it, it would seem to be clear that the case would fall within the rule of several of our own decisions. It is undisputed that Mrs. Miles, although unable to read or write, transacted all business pertaining to the property, that it was assessed in her name, she paid the taxes, and as the property was improved, she met all taxes and assessments of a special or local character, and discharged the mortgages out of the earnings of the building. There is no testimony which even tends to show that the husband, whose pay never exceeded $75 a month, ever paid or contributed anything to the improvement or upkeep of the property. If he ever kept a bank account, or participated in any one business transaction, it is not recalled by any of the witnesses. The only testimony going to the disposition of his earnings is that of Mrs. Miles, who says that he never earned more than enough to support the family.

Counsel rely with seeming confidence upon several of our own decisions, holding upon the premise of the presumption that all property acquired after marriage is community property, and that testimony must be clear, and the fact apparent, that the husband intended to divest himself and the community of all interest in the property, and to set it apart to the separate use of the wife before a court will so hold.

Reference to the opinions of this court will show that we have built up two lines of decisions covering the right of one or the other of married persons to assert a separate interest in property. In the one line the court has had to do with the claims of creditors, or the interests of third persons having some tangible equity in a lien upon the property sought to be recovered or levied upon. In the other line, the court has had to deal with husband and wife as free contracting agents, unhampered and unhindered by the claims of creditors, or by any one having direct interest in, or lien upon, the property. In all of the first line of cases, the court has had to deal with circumstances which, if unexplained by testimony, at once clear and convincing, would amount to badges of fraud. In the second line of cases it appears that a husband and wife may freely contract, or give one to the other, and thus provide for the holding of property then or thereafter to be acquired as a separate estate.

To make ourselves clear, if the property herein involved had stood in the name of Thomas W. Miles, and he had been the active agent in the care, management, and disposition of it during his lifetime, his widow, or any one claiming under her, would be put to a greater burden than a mere preponderance of the testimony, if it were claimed that the property was her separate property, for the husband's conduct with reference to the property would have been consistent with the usual practice, and not inconsistent with the ordinary methods of management of community property, funds, or business. But where a course of dealing between spouses, and this running over a period of from 30 to 50 years, is consistent--is not only consistent with, but confirmatory of the claim of the one who asserts a separate estate--we see no reason for saying that the presumption that all property acquired after marriage is community property is not overcome, at least to the extent of putting a burden on the one who asserts the contrary.

The community property law as originally enacted seems not to have contemplated gifts or contracts between husband and wife with reference to community property, or that community property could ever be given the status of separate property. But by gradual accretion it is now provided that every married person may acquire, hold, enjoy, and dispose of property as if he or she were unmarried. Rem. Code, § 5925. The husband and wife may contract with reference to the status or disposition of property. Rem. Code, § 5919. That a bona fide purchaser of property from the holder of the record title will be protected (Rem. Code, § 8771), and that one spouse may convey directly to the other by deed (Rem. Code, § 8766).

If a husband can convey directly to a wife, it would seem that if he procures a deed in her name, and so conducts himself with reference to the property as to evidence no claim or interest in it, we see no reason why the deed from the stranger should not, as between the spouses--there being no creditor present and objecting--be given...