Morgan v. Morgan

• Decision Date: 12 November 1894
• Citation: 10 Wash. 99,38 P. 1054
• Court: Washington Supreme Court
• Parties: MORGAN v. MORGAN.

38 P. 1054

10 Wash. 99

MORGAN v. MORGAN.

Supreme Court of Washington

November 12, 1894

Appeal from superior court, Spokane county; William H. Upton, Judge.

Action by Mary A. Morgan against J. M. Morgan to set aside a deed on the ground of fraud. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Turner Graves & McKinstry, for appellant.

Thomas C. Griffitts, N.E. Nuzum, and Fenton, & Henley, for respondent.

SCOTT, J.

The plaintiff obtained a divorce from the defendant in the circuit court of Benton county, Or., on the 28th day of March, 1888, in which county she, with their minor children was then living. The ground alleged was desertion. She was awarded the custody of said children, and the sum of $8,000 as permanent alimony. The defendant had removed to Spokane in this state (then territory), in the fall of 1879, and thereafter said parties lived apart from each other. While said parties were husband and wife, and were living respectively, at the places aforesaid, the defendant, soon after his said removal, acquired two pieces of land situate in Spokane county, which were then of slight value, but which the lower court found in this action were worth $80,000 at the time the divorce was granted. With the exception of a small place, not exceeding a few hundred dollars in value, upon which the plaintiff resided, neither of said parties had any property in Oregon. In January, 1888, prior to the commencement of the said suit in Oregon by the plaintiff, she brought suit against the defendant in Spokane county, this state, to obtain a divorce, and a portion of the property which had been acquired there by the defendant. In pursuance of certain negotiations had between the parties, this action was not pressed to a trial, and the one aforesaid, in Oregon, was instituted, which was allowed to proceed uncontested. In this action the defendant was found to have property in Spokane of the value of $25,000 only. In March, 1888,-the day the decree was granted,-defendant paid said sum of $8,000 which was awarded the plaintiff. On the 28th day of April, following, the defendant obtained from the plaintiff a quitclaim deed to the land aforesaid in Spokane county. Some time during the latter part of the year 1888 the plaintiff removed to Whitman county, in this state. In March, 1892, she commenced the present action, wherein the seeks to have said deed set aside on the ground that it was fraudulently obtained from her, and without consideration, and to have a partition of the lands, and thus to recover one-half of the lands aforesaid, under the community property laws of this state, excepting as to certain of said lands which had been sold by the defendant, and, as to these, she asks that the defendant be called upon to account to her for her interest therein,-and prayed for further incidental relief. The defendant answered, taking issue with the plaintiff upon the material matters alleged in her complaint, and, in one of several affirmative defenses pleaded, he sought to avail himself of the statute of limitations, which provides that an action for relief upon the ground of fraud shall be brought within three years from the time of the discovery by the aggrieved party of the facts constituting the fraud. Code Proc. § 115, subd. 4. We deem it unnecessary to more fully set forth the allegations of the pleadings.

The lower court found in favor of the plaintiff upon most of the issues involved, finding that the lands aforesaid, in Spokane county, were the community property of the plaintiff and defendant, and that the plaintiff was under no obligation to quitclaim her interest therein to the defendant; that she did so without consideration, and in consequence of fraudulent representations of the defendant to the effect that she had no rights therein, that the same did not exceed $25,000 in value, and that he was also largely indebted,-and further found that the defendant had always exercised a great influence over the plaintiff, which in a measure led to the execution of the deed. The deed, upon its face, expressed a consideration of $8,000 as paid by the defendant to the plaintiff therefor. But it is conceded that no money consideration then passed between the parties, and it only represented, if anything, the previous payment of $8,000 by the defendant to the plaintiff upon the date of the decree of divorce aforesaid. And the court further found that said payment was not intended to be, and was not, in satisfaction or discharge of any of plaintiff's claims in or to said property, but that the considerations for permitting the decree for said sum were two, viz. that the suit should be brought in Oregon, and that it should involve no scandal. Of course, it is not contended that the Oregon court had any jurisdiction over said lands in this state, so that its decree could directly affect the plaintiff's title or interest therein. As to the statute of limitations, the court found that while the plaintiff was wholly ignorant as to the value of said property, and of her rights and interests therein under the community property laws of this state, yet that she "discovered all the facts constituting the fraud, except that she had rights under the community property laws of the-to her-foreign territory of Washington, many years ago, and became charged with a knowledge of that law, and of the facts resulting therefrom, when she settled here, in 1888, about three and a half years before this action was commenced," and found that said statute barred a recovery, and dismissed the action, whereupon the plaintiff appealed.

The material findings were nearly all excepted to by one party or the other, and practically the whole case is before us for review. Owing to the conclusion we have arrived at in relation to the applicability of this part of the statute of limitations, it is incumbent upon us only to examine the facts with reference thereto, and it is unnecessary to determine whether the findings of the court otherwise should or can be sustained. It will be necessary, however, to supplement the above condensed statement of the facts somewhat, in the discussion of this last question.

A number of questions are raised by appellant against the application of the three-years limitation statute to this action, and it is also contended that, if it applies, the defendant cannot avail himself of it, in consequence of having failed to properly plead it. The only point raised in respect thereto is that the defendant, in pleading the statute, in his answer, as a bar to the action, specified two years, instead of three, as the time within which such actions must be commenced; and it is contended that the use of the word "two," instead of "three," destroys the effect which the plea would otherwise have, if established. The word "two," apparently, was inadvertently used, and was unnoticed by the defendant until after the evidence was taken. It seems that during the argument of the cause, which was not concluded for a number of days after the testimony was taken, this matter was called to the attention of the lower court for the first time, and the defendant claimed that "two" was a mere clerical error for "three," and asked to amend his answer in this respect. In consequence of some informality as to the manner in which the application was made, the court then refused to grant the same, but ruled that the defendant might formally apply for leave to amend upon proper notice to the adverse party, if he desired to do so, in case of an appeal; and meanwhile, as the plea had not been attacked by demurrer, but had been treated as sufficient by the plaintiff throughout the trial, or until the argument of the cause, and as the intent to plead the statute was apparent, the court reached the conclusion that the plea was sufficient, as it stood, to make the defense available. However, application was formally made by defendant for leave to amend in accordance with the previous ruling of the court, and leave was granted and the amendment made. Appellant attacks the ruling of the court in this matter in each instance, contending that only the two-years statute was pleaded, and that as the court found the equities of the case were with the plaintiff, and that she was entitled to the relief demanded, were it not barred by the statute of limitations, it was an abuse of discretion to permit the amendment; that amendments are only allowed in aid of justice, not of injustice, and, while the statute of limitations is not always an unconscionable defense, that it may be, and was such under the facts of this case. A number of authorities are cited as sustaining the proposition that the amendment should not have been permitted. But we think that the action of the lower court was right in the premises. The fact that the plea had been treated as sufficient until near the conclusion of the trial, by not questioning the same in any manner, precluded the plaintiff from thereafter attacking it, or the evidence introduced thereunder, especially as the intention of the defendant to avail himself of the three-years statute was apparent from the answer and the proofs. The two-years limitation was inapplicable, and no one could well be misled, under the answer and proofs, as to the defendant's intention. The court was justified in holding the plea sufficient as it stood, and it was also right to permit the pleading to be amended to correspond with the proofs. Under the weight of the authorities, the statute of limitations is not-now, at least-generally regarded as an unconscionable defense. We regard this so well settled that we deem a citation of many authorities unnecessary, but refer to Wood v. Carpenter, 101 U.S. 135, where it is said: "Statutes of limitation are...