Large v. Shively

• Decision Date: 17 June 1936
• Docket Number: 26178.
• Citation: 186 Wash. 490,58 P.2d 808
• Parties: LARGE v. SHIVELY.
• Court: Washington Supreme Court

58 P.2d 808

186 Wash. 490

LARGE v. SHIVELY.

No. 26178.

Supreme Court of Washington

June 17, 1936

Department 1.

Appeal from Superior Court, Mason County; John M. Wilson, Judge.

Action by George E. Large against Edna R. Shively. From a judgment dismissing the action with prejudice, plaintiff appeals.

Reversed with directions.

Revelle Revelle & Kells, of Seattle, for appellant.

J. W Graham, of Shelton, for respondent.

STEINERT Justice.

This action arises out of a controversy over the title to certain lands fronting on Hood Canal. The complaint set forth two causes of action. The first cause proceeded upon the theory that, considering the lands as comprising two tracts adjoining each other at their easterly and westerly ends respectively, the boundary line between them had become obscure and uncertain, resulting in a dispute between the respective owners, in consequence of which the complaint sought a decree directing that the exact boundary line be erected, established, and properly marked. The second cause of action, pleaded as an alternative cause, was based upon the alleged false and fraudulent representations previously made by the defendant to the plaintiff concerning the true boundary line, and the complaint in that respect sought to have defendant estopped from asserting the boundary line to be other than as represented by her. Upon a trial Before the court, an order was entered dismissing the action with prejudice. The plaintiff has appealed.

The trial court disposed of the case solely upon the ground of res judicata, and the only question Before us is whether or not the court was correct in that particular ruling. The answer to the question depends entirely upon the issues made by the pleadings and upon certain statements made by appellant's counsel in the course of the trial. So far as this appeal is concerned, the essential facts are, therefore, to be determined by reference to, and an analysis of, the pleadings and counsel's statements.

We consider first the pleadings. In the first cause of action, the complaint alleged that the appellant was the sole owner of a certain government lot situated in Mason county, and that respondent was, at the same time, the holder of a contract for the purchase, from the state, of the second-class tidelands in front of, and adjacent to, the lot. It was further alleged that the exact boundary line between the two tracts had become obscure and uncertain; that on the easterly portion of appellant's land were two structures, but that respondent was asserting that these structures were not located on the land of appellant; and that the parties could not agree upon and fix the boundary line between their respective properties, or agree upon the ownership of the structures located thereon. Thus far, the issues were simply whether the boundary line between the two tracts of land was obscure and uncertain and whether the structures above referred to were located on appellant's land.

In the second cause of action, the complaint went more into detail, setting forth the history of the respective ownerships. This cause of action was expressly predicated upon the contingency of a holding by the court, in the first cause of action, adversely to appellant, that the true boundary line between the properties was west of the meander line of Hood Canal.

The substance of the second cause of action, as pleaded, is as follows: In August, 1929, certain persons, then owning the government lot, described as lot 1, section 1, township 22 north, range 4 west, W. M., situated in Mason county, Wash., entered into a real estate contract to sell the same to respondent and her husband. The vendors in the contract reserved the right to mortgage the property, and the vendees agreed to make certain improvements thereon in the way of buildings of a value of not less than $4,000, and to join with the vendors in the execution of the mortgage.

On October 14, 1929, the vendors and vendees in the contract executed and delivered to appellant their promissory note in the sum of $4,200, secured by a mortgage on the real property. The appellant was induced to make the loan by reason of representations on the part of the mortgagors, including respondent herein, to the effect that a dance hall then under construction by the respondent and her husband was being erected on the property to be mortgaged. It was further understood and agreed among the parties that the mortgagors would keep the property insured and would pay all materialmen's and mechanic's bills incurred, so that appellant's mortgage would be a first lien upon the structure and the land upon which it was situated. It was also represented to appellant that the land, consisting of eight or ten acres, included the water front extending eastwardly to the meander line of Hood Canal.

The Olympic highway extends northerly and southerly through the eastern portion of the property; the land lying east of the highway, toward Hood Canal, being much more valuable than that lying west of the highway.

As the result of certain litigation between the vendors and vendees, the contract above mentioned was subsequently canceled, and the interest of the respondent and her husband in the land was extinguished.

In August, 1933, appellant instituted foreclosure proceedings, in Mason county, on his mortgage, and, pursuant to the decree entered therein, the land was sold to appellant under special execution; a certificate of purchase being issued to him on October 27, 1934.

During all of the time to which we have, up to this point, referred, appellant believed, and relied upon, the representations that had been made to him concerning the boundaries of the land.

Thereafter, on December 18, 1934, respondent entered into a contract with the state of Washington to purchase from the state all tidelands of the second-class situate in front of, adjacent to, or abutting on the above-described lot, and respondent now claims that the tidelands being purchased by her extend far to the west of the meander line of Hood Canal and that the improvements are upon the tidelands and not upon the land covered by appellant's mortgage.

The complaint further alleges that, if the land covered by appellant's mortgage does not extend to the meander line and does not include the land upon which the improvements are situated, then the representations made by respondent, which induced appellant to enter into the mortgage transaction, were false and constitute a fraud upon appellant.

A demurrer to the complaint was overruled. Respondent then filed an answer in which the allegations of the first cause of action of the complaint were denied. As to the second cause of action, the answer admitted the execution of the real estate contract of August, 1929, between the respondent and her vendors, and its subsequent cancellation. It also admitted that appellant's mortgage was foreclosed and that appellant had become the purchaser of the land described therein. It further admitted the subsequent execution of the contract of December 18, 1934, for the purchase of the tidelands by the respondent from the state. The answer, however, denied that respondent had ever made any representations to appellant, false or otherwise, relative to the lands, or that appellant had ever relied on any representations made by her, denied all charges of fraud, and denied that the tidelands or improvements thereon were ever a part of the land covered by appellant's mortgage.

By way of an affirmative defense, the answer set forth, among other things, two former actions,...