Malo v. Anderson
| Decision Date | 22 August 1963 |
| Docket Number | No. 36656,36656 |
| Court | Washington Supreme Court |
| Parties | Gaston MALO and Joan Malo, his wife, Respondents, v. George S. ANDERSON, Appellant. |
Clarence L. Gere, Seattle, for appellant.
Gibbon & Thoreson, Seattle, for respondents.
*
Plaintiff, Joan Malo, whom we treat as the sole plaintiff in interest, was formerly the wife of George S. Anderson, defendant, who owned realty in Seattle, at 217 Orcas Street. Plaintiff had brought $2,000 into the marital community, which was expended on the realty and its improvements. In the divorce action, the realty, subject to an existing mortgage, was awarded to defendant, and he was ordered to pay plaintiff $35 a month until the sum of $2,000 had been paid. Thereafter, and supplementally, the real estate was sold to plaintiff at execution sale, and the sale was confirmed by order of court, with no objection raised. There was no redemption, and, in due course, a sheriff's deed was issued to plaintiff as grantee. It will be noted that praecipe requested and execution was issued for $1,580, the entire unpaid balance, plus interest, whereas, in fact, monthly payments totaling only $245 had accumulated.
In the case at bar, which is of equitable cognizance, plaintiff sought a decree quieting title, and a writ for delivery of possession to her. The superior court (not the trial judge) granted her motion for a summary judgment, holding that defendant had no right, title, or interest in the property, unless right to possession. Defendant had remained in possession since the divorce, and his right to retain possession was the sole issue reserved for trial. The trial court held against defendant on this issue and granted restitution to plaintiff. Defendant appeals.
In view of the nature of the case, we must interpolate appellant's assignments of error as follows: Can the summary judgment be supported on equitable grounds?
It is respondent's position that appellant's rights were foreclosed:
(1) By his failure to resist the writ of execution, sheriff's sale, and entry of order of confirmation;
(2) By the provisions of RCW 6.24.100, which provides inter alia,
'* * * An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale as to all persons in any other action, suit or proceeding whatever.';
(3) By the following cases holding that an order of confirmation cures all irregularities in the sale, short of jurisdictional defects: Goshert v. Wirth, 130 Wash. 14, 226 P. 124; Brady v. Ford, 184 Wash. 467, 52 P.2d 319; In re Hardison's Guardianship, 28 Wash.2d 921, 184 P.2d 840.
In the abstract, we approve the force of this argument. Indeed, we add that an execution sale for an amount in excess of the judgment has been held to be an irregularity which is cured by an order of confirmation. Otis Bros. & Co. v. Nash, 26 Wash. 39, 66 P. 111; In re Stoops' Estate, 118 Wash. 153, 203 P. 22. However, when there are no intervening rights, such as a bona fide purchaser, to consider, and the original parties to a transaction have invoked the aid of a court of equity, the relief afforded will not necessarily follow technicalities, but will meet the ends of justice. In such event, RCW 6.24.100 may add no stature to a transaction, and provide neither sword nor shield to a party in equity.
'There is no question but that equity has a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable. * * *' Thisius v. Sealander, 26 Wash.2d 810, 818, 175 P.2d 619, 623.
Equity, having assumed jurisdiction over the subject matter and the parties, will retain exclusive jurisdiction for all purposes. Hubbell v. Ward, 40 Wash.2d 779, 246 P.2d 468; 1 Pomeroy's Equity Jurisprudence (5th ed.) § 232.
The pertinent facts are necessarily gleaned from affidavits, from admissions in pleadings, and from express and implied admissions of counsel in printed briefs, and during arguments before the trial court and this court and obvious inferences which may be drawn therefrom. This course is dictated by the fact that there were no offers of proof, no testimony, and no exhibits identified or admitted during the hearing before the trial judge.
Respondent purchased the property at sheriff's sale for $1,695.97, which included the unpaid balance plus costs and interest. Appellant had no actual notice of this sale. On February 6, 1953, the property was worth approximately $6,000. On January 23, 1954, the sale was regularly confirmed. A sheriff's deed was issued on January 17, 1956. This action was commenced on March 8, 1961. In the interim, appellant remained in possession, retired the mortgage obligation, and paid all real estate taxes.
As we have seen, payments totaling $245 had accumulated at the time of the execution. While it is true that installment payments become absolute and fixed as they become payable, there is no authority for the position that payments not yet due will automatically accelerate. Llewellyn Iron Works v. Littlefield, 74 Wash. 86, 132 P. 867; Mondioli & Stewart v. American Building Co., 83 Wash. 584, 145 P. 577.
In measuring equities, it seems obvious that respondent did not come into court with clean hands. She acquired a valuable property in satisfaction of a comparatively small claim. The manner in which she did so merits no stamp of judicial approval; she circumvented the terms of the divorce decree; she utilized statutes in an unauthorized manner; and, after delivery of the sheriff's deed, it may be a fortuitous...
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Magney v. Lincoln Mut. Sav. Bank, 4929-III-9
...be inequitable under the circumstances" and thus would justify the exercise of the court's equitable powers. See Malo v. Anderson, 62 Wash.2d 813, 815, 384 P.2d 867 (1963). Miller, 86 Wash.2d at 405-06, 545 P.2d 546. The court held that the .5 percent increase in interest rate was not inequ......
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Miebach v. Colasurdo
...a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable." Malo v. Anderson, 62 Wn.2d 813, 815, 384 P.2d 867 (1963) (quoting Thisius v. Sealander, 26 Wn.2d 810, 818, 175 P.2d 619 (1946)). Generally, "mere inadequacy of price, unless s......
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Miebach v. Colasurdo
...circumstances must be made prior to confirmation. Atwood v. McGrath, 137 Wash. 400, 406-07, 242 P. 648 (1926); Malo v. Anderson, 62 Wash.2d 813, 815, 384 P.2d 867 (1963); Casa del Rey v. Hart, 31 Wash.App. 532, 537-38, 643 P.2d 900 (1982). Here the order of confirmation was entered on Septe......
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Casa del Rey v. Hart, 8853-0-I
...judgment and appealable. Northern Commercial Co. v. E. J. Hermann Co., 22 Wash.App. 963, 593 P.2d 1332 (1979). In Malo v. Anderson, 62 Wash.2d 813, 384 P.2d 867 (1963), a case on which the trial court placed considerable reliance, the court recognized that an order of confirmation cures all......
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Table of Cases
.... .12.10[2][a] Mallen v. Mallen, 4 Wn. App. 185, 480 P.2d 219 (1971). . . . . . . . . . . . . . . . . .28.02[2], [3][h] Malo v. Anderson, 62 Wn.2d 813, 384 P.2d 867 (1963) . . . . . . . . . . . . . . . . . . . . . . . 68.09 Malo v. Anderson, 76 Wn.2d 1, 454 P.2d 828 (1969) . . . . . . . . .......
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Table of Cases
...814 P.2d 1219, 821 P.2d 1235 (1991): 11.7(5) Malland v. Dep't of Ret. Sys., 103 Wn.2d 484, 694 P.2d 16 (1985): 21.8(3) Malo v. Anderson, 62 Wn.2d 813, 384 P.2d 867 (1963) (Malo I): 20.9(2)(b) Malo v. Anderson, 76 Wn.2d 1, 454 P.2d 828 (1969) (Malo II): 8.6, 20.9(2)(b), 20.10(3) Manna Fundin......
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§68.09 Secured Interests: Mortgages|Deeds of Trust
...Confirmation of the sale upon execution is a legal remedy that may not control when the defense is equitable. Id.; Malo v. Anderson, 62 Wn.2d 813, 816-17, 384 P.2d 867 (1963); Malo v. Anderson, 76 Wn.2d 1, 4, 454 P.2d 828 (1969). [1] Mortgages Mortgages are common security interests in whic......
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§ 20.9 Recall of Mandate
...in the prerule case of Malo v. Anderson (Malo II), 76 Wn.2d 1, 454 P.2d 828 (1969). In the earlier case, Malo v. Anderson (Malo I), 62 Wn.2d 813, 384 P.2d 867 (1963), the Supreme Court reversed the trial court on equitable grounds. The court relied on unsupported factual assertions in Ander......