Morgan v. Bell

• Decision Date: 20 January 1892
• Citation: 3 Wash. 554,28 P. 925
• Parties: MORGAN ET AL. v. BELL. [1]
• Court: Washington Supreme Court

28 P. 925

3 Wash. 554

MORGAN ET AL. v. BELL. ^[1]

Supreme Court of Washington

January 20, 1892

Appeal from superior court, Jefferson county; MORRIS B. SACHS Judge.

Hughes & Hastings and R. H. & R. A Ballinger, for appellant.

Hays & Plumley, for respondents.

DUNBAR J.

A correct understanding of this case will necessitate a presentation of the material allegations in the pleadings. The first allegation in the complaint is: "That on the 10th day of December, 1889, the plaintiffs and defendant entered into an agreement in writing, of which the following is a copy: 'Contract made and entered into this 10th day of December, 1889, by and between William Bell, of Toledo Ohio, and James Morgan, of Port Townsend, Jefferson county, Washington, witnesseth: The said William Bell, being the owner in fee-simple of the premises hereinafter described, has agreed and does hereby agree to sell and convey the said premises to the said James Morgan upon the following conditions, to-wit: The said William Bell has agreed and does hereby agree, in consideration of the sum of twenty thousand dollars, to be paid to him by the said James Morgan, five hundred dollars thereof to be paid cash in hands, the receipt of which is hereby acknowledged, and the sum of nineteen thousand five hundred dollars thereof to be paid on or before four months from the date hereof; and the said William Bell has agreed and does hereby agree, upon receipt of the full sum of said twenty thousand dollars, that he will execute and deliver to the said James Morgan a sufficient warranty deed conveying to him a fee-simple title to the following described premises: [Description omitted.] And it is further agreed by and between said parties that, should the said James Morgan fail to pay said sum of nineteen thousand five hundred dollars on or before four months from the date hereof, then the said sum of five hundred dollars this day paid by him shall be forfeited to the said William Bell."' (Duly signed, sealed, and witnessed by William Bell and James Morgan.) The second allegation is to the effect that it was agreed upon by the plaintiffs that Morgan should act for them jointly in the purchase of the land, and that they were all jointly interested in the purchase of said land and in the proceeds of said agreement. "(3) That on the 10th day of April, 1890, the plaintiffs demanded the conveyance of the said property from the defendant, and tendered nineteen thousand five hundred dollars to the defendant, and were ready and willing at all times, under the terms of said agreement, to accept and pay for said lands, and to duly and fully perform their said agreement under the said covenants upon the like performance by the defendant; but the defendant failed and refused to make said conveyance, or to perform his portion of said agreement at said date, or at any other time, and still refuses to so perform, or in any way make proper restitution for such failure and refusal. (4) That since the date of said agreement, to-wit, December 10, 1889, and prior to the expiration of the four months mentioned in said agreement of sale, said lands had greatly increased in value above the said agreed purchase price of twenty thousand dollars, and were worth at the date or time provided in said agreement for the conveyance and sale of said lands, upon the market in the vicinity of said land, one thousand dollars per acre, or of the aggregate value of one hundred and fifty-four thousand and five hundred and fifty dollars, and of the cash value of one hundred and thirty-four thousand five hundred and fifty dollars over and above the said nineteen thousand five hundred dollars agreed by said plaintiff to be paid at said time to said defendant. (5) That the plaintiffs are still ready and willing to pay the purchase money of the said property to the defendant. Wherefore plaintiffs demand judgment (1) that the defendant execute to the plaintiffs a sufficient warranty deed, conveying to them a fee-simple title to all of said lands described and set forth in said contract, and recited in this complaint; (2) for the sum of one hundred and thirty-four thousand five hundred and fifty dollars, with ten per cent. interest thereon since the 10th day of April, 1890, and their costs and disbursements." To this complaint, defendant interposed a demurrer on the grounds "(1) that the said complaint does not state facts sufficient to constitute a cause of action; (2) that there is a defect of parties plaintiff, in that there is shown upon the face of the complaint that there is no privity of contract between any of the plaintiffs herein except the plaintiff James Morgan."

The demurrer was overruled, and the defendant answered. A demurrer to the answer was sustained, and an amended answer was filed, in which defendant admitted the execution of the written instrument set out in paragraph 1 of the complaint but denied the other allegations in paragraph 1, and denied each and every the allegations in paragraphs 2, 3, and 4 of the complaint, and for an affirmative defense alleged, substantially, that he acquired the land in question by purchase on the 28th day of January, 1888, while he was a married man, the husband of one Elva E. Bell, who died intestate on the 1st day of March, 1888, leaving as her sole heir at law Elva Elain Bell, as the fruit of the marital relations between her and the defendant, and that the said Elva Elain Bell was still an infant, of the age of five years, and that the money used in purchasing said land was not owned by him at the time of marriage, or acquired after marriage by gift, devise, bequest, or descent. That at the time said agreement was entered into he was, and for a long time previous thereto had been, a resident of Toledo, in the state of Ohio, and was wholly unacquainted with the laws of the state of Washington providing for the community interests of the wife with her husband in real estate acquired by him by purchase during the existence of the marital relation, and fully believed that he was the sole owner of said land, having full power of alienation thereof; and averred that plaintiffs were, and for a long time previous thereto had been, residents of the state of Washington. That the said agreement was entered into between this defendant and the said plaintiff James Morgan at the instance and request of the said plaintiff, and upon his express representation to this defendant, either fraudulently and willfully, to mislead this defendant, or ignorantly, believing the same to be true, that this defendant was the sole owner in fee-simple of the real estate described in said agreement, with full power of alienation thereof; he, the said plaintiff, well knowing at the time that this defendant acquired the said land by purchase as aforesaid during the life-time of said wife, and that his said wife was then deceased, and that she had died intestate, leaving as her sole heir at law one Elva Elain Bell, her child by this defendant, and that said child was still living, and of the age of about four years, and no more; and that he, this defendant, relying upon said representations of said plaintiff Morgan, and fully believing said representations to be true, executed said agreement, and delivered it to said plaintiff. That afterwards, on or about the 8th day of July, 1890, and before the institution of this action, this defendant discovered, and avers the same to be a fact, that he was not the sole owner in fee-simple of said real estate, but was the owner of the undivided one-half of the same, the remaining one-half being the property of the said Elva Elain Bell as the heir at law of the said Elva E. Bell, deceased, who during her life-time was, by operation of law, the owner of a community interest in said real estate with this defendant. That immediately upon the discovery by him that he was not the sole owner of the said real estate as aforesaid, this defendant executed to said plaintiff James Morgan, without any knowledge that the co-plaintiffs of said Morgan held or claimed any interest in said agreement or the subject thereof, his deed of conveyance, with covenants of warranty, for his undivided one-half of said real estate, and tendered the same to said plaintiff, demanding of him a proportionate amount of the consideration agreed by said plaintiff to be paid, less the amount already paid thereon, to-wit, $9,500, which said deed of conveyance he, the said plaintiff, then and there and ever afterwards declined and refused, and still declines and refuses, to accept, and which proportionate amount of said consideration he, the said plaintiff, then and there, and ever afterwards, still declines and refuses to pay. That upon such refusal by plaintiff the defendant tendered to plaintiff the amount paid by plaintiff as a cash payment on said agreed consideration, to-wit, $500, together with interest at the rate of 10 per cent. per annum from the date of said payment until the time of said tender, and offered to rescind said agreement, and that said plaintiff then refused, and ever afterwards has and still refuses, to rescind said agreement. Alleges that he has ever since said tender been, and still is, ready to convey his undivided one-half interest for a proportionate part of said agreed price, less the amount already paid him, or to refund said money paid, with interest on the same at the rate of 10 per cent. per annum, and that ever since said tender of $500 and interest, as aforesaid, he has been and still is ready and willing to pay the same to the plaintiffs. The third affirmative defense, in addition to the matters alleged in the second, is that plaintiff Morgan, who was at the time of the execution of the contract a resident of the state of Washington, and well acquainted with...