Long v. Eisenbeis

• Decision Date: 30 March 1899
• Citation: 56 P. 933,21 Wash. 23
• Parties: LONG et al. v. EISENBEIS et al.
• Court: Washington Supreme Court

56 P. 933

21 Wash. 23

LONG et al. v. EISENBEIS et al.

Supreme Court of Washington

March 30, 1899

Appeal from superior court, Jefferson county; James G. McClinton judge.

Action by B. M. Long and others against Charles Eisenbeis and others. From an order overruling a demurrer to part of the answer, plaintiffs appeal. Reversed.

Allen Weir and T. J. Humes, for appellants.

A. R Coleman, for respondents.

REAVIS J.

Plaintiffs (appellants) instituted this suit against defendants (respondents), alleging that they were the owners in fee simple of an undivided one-half interest in 84.61 acres of land near Port Townsend, and that defendants wrongfully held possession and claimed ownership of the same, and asked for relief and for damages. Defendants, after demurrer, which was overruled, answered, denying generally the allegations of plaintiffs, and set up a former adjudication of the right to the tract of land between the same parties. Plaintiffs demurred to the plea of former adjudication, which demurrer was overruled; and plaintiffs, standing on their demurrer have appealed.

The facts stated in the complaint are, substantially, that one Henry Bash purchased from Mary Fowler and others in August 1888, certain land situated in Jefferson county, known as the 'Fowler Tract,' containing 237.85 acres. Bash had previously, in the same month, obtained a contract of sale of the land from the grantors, and a deed of conveyance pursuant to the contract was obtained. At the time the contract of sale was made, Bash entered into a written contract with Eisenbeis, one of the defendants, whereby they agreed to acquire, hold, sell, and dispose of the land jointly; Eisenbeis to furnish money for purchasing and platting the land, and to hold the title in his own name, and to reimburse himself from the proceeds of sales; the net balance of all moneys received from sales to be divided equally between them. This agreement was subsequently modified orally to cover an increased purchase price demanded by the grantors as to a part of the tract. On the 31st of August, 1888, Bash and wife conveyed all the land by deed to defendant Eisenbeis, pursuant to their contract. Thereupon Eisenbeis entered into possession, and the greater portion of the land was subsequently sold by the joint efforts of both parties. Eisenbeis received all the money, and reimbursed himself for all outlay, and divided the net proceeds as provided in the contract. However, the parties disagreed upon their accounting and the ownership of the unsold land, and on the 30th of May, 1892, Bash and wife conveyed to plaintiffs all their right, title, and interest to the lands; and in September, 1893, Bash and wife and plaintiffs instituted a suit against the defendants, setting out the foregoing facts, substantially, and asking that the contract be rescinded, and an accounting had of all the affairs of the trust, and that the lands remaining unsold be divided in accordance with the rights of the parties. A trial was had; the court making specific findings of fact, adjudging an accounting, and a balance due plaintiffs from defendants, and that the land unsold be divided. It appears that in the sale of the land it was platted into lots and blocks, except 84.61 acres. The court in that suit found that the unsold land should be equally divided, but the decree omitted any mention of the unplatted land,--the 84.61 acres in controversy here. In January, 1898, the present plaintiffs instituted this suit, and the answer of the defendants to the complaint set up the former suit as an adjudication of the rights in controversy here. The whole record of the former suit is set out in the answer, from which it appears that the complaint contained the same agreements with reference to the purchase and sale of the entire tract of 237.85 acres as are set out in the complaint in this cause; that the plaintiffs demanded an accounting, and also a division of all the unsold parcels of the land (describing them); that, upon the issues thus made up, evidence was heard, and findings of fact made, the court finding generally in favor of the plaintiffs; that a decree was thereafter rendered in said cause, but the judgment of the court does not mention or adjudicate the title to the 84.61 acres in controversy here.

It is contended by counsel for respondents that the plea of former adjudication is a complete defense to the present action that it is shown that the plaintiffs had already maintained an action against the defendants on the same...