Metropolitan Life Ins. Co. v. Davies

• Court: Washington Supreme Court
• Writing for the Court: GERAGHTY, Justice.
• Citation: Metropolitan Life Ins. Co. v. Davies, 67 P.2d 867, 190 Wash. 329 (Wash. 1937)
• Decision Date: 07 May 1937
• Docket Number: 25889.
• Parties: METROPOLITAN LIFE INS. CO. v. DAVIES et al. (DAVIES, Intervener.

67 P.2d 867

190 Wash. 329

METROPOLITAN LIFE INS. CO. v. DAVIES et al. (DAVIES, Intervener.

No. 25889.

Supreme Court of Washington

May 7, 1937

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by the Metropolitan Life Insurance Company against Lewis Davies and others, wherein Mozella E. Davies filed a complaint in intervention. From a decree for plaintiff embodying a provision dismissing intervener's action with prejudice, intervener appeals.

Cause remanded, with direction that judgment be modified, and as modified affirmed.

Josiah Thomas and Clarence L. Gere, both of Seattle, for appellant.

Hamblen Gilbert & Brooke and R. L. Edmiston, all of Spokane, for respondent.

GERAGHTY Justice.

The plaintiff, Metropolitan Life Insurance Company, brought this action to foreclose a mortgage on the south half of section 32 township 22 north, range 44 E. W. M., in Spokane county. The mortgage, given to secure a loan of $15,000, was executed by Lewis Davies as a married man dealing with his sole and separate property. Having obtained leave of court, Mozella E. Davies, a granddaughter of Lewis Davies and Mozella Davies, deceased, filed a complaint in intervention claiming a right to an undivided one-half interest in the southeast quarter of section 32, and praying that title be quieted and established in her.

In support of her claim, appellant alleged that Lewis Davies filed homestead entry on the southeast quarter of section 32 on January 30, 1885, and that government patent therefore was issued to him February 23, 1892; that when the homestead entry was made by Lewis Davies, his wife, Mozella Davies, was living; that Mozella Davies died June 9, 1887, and Before the issue of patent, and that, therefore, the land was community property of Lewis and Mozella Davies; that at her death Mozella Davies was survived by her husband and a son, Clyde Davies, three years of age, and that a one-half interest in the land vested in the son; that Clyde Davies died in March 1921, leaving the intervener as his sole her.

A demurrer was interposed and sustained to the complaint in intervention. Thereafter an amended complaint in intervention, with substantially the same allegations, was filed, to which a demurrer was sustained. A second amended complaint was filed by the intervener embodying, with slight variations, the allegations of the complaint and the amended complaint with respect to the southeast quarter, and claiming an interest in the southwest quarter of section 32 on the theory of a resulting trust.

The material allegations in her complaint with respect to the southwest quarter were that Lewis Davies, in 1900, received the sum of $440.89 from Clyde Davies, her father; that with this and other money Lewis Davies purchased and took title in his own name to the quarter, and that he held in trust for Clyde Davies an undivided one-half interest therein, which he constantly recognized and admitted; that on the death of Clyde Davies intestate, appellant as his sole heir succeeded to his interest; that at the time of her father's death, appellant was ten years of age; that the fact of her father's interest in the land was fraudulently concealed from her and she had no knowledge of it until December 21, 1934, and that the facts relative to the rights of Clyde Davies and herself in the property were well known to the respondent.

The plaintiff filed a motion to strike the second amended complaint in intervention, upon the ground that it stated substantially the same facts as set forth in the original complaint in intervention and was an attempt to avoid the ruling upon the demurrer to that complaint, and for the further reason that leave of court had not been...