Norman v. Levenhagen

• Decision Date: 15 February 1927
• Docket Number: 19853.
• Citation: 142 Wash. 372,253 P. 113
• Parties: NORMAN v. LEVENHAGEN et al.
• Court: Washington Supreme Court

253 P. 113

142 Wash. 372

NORMAN v. LEVENHAGEN et al.

No. 19853.

Supreme Court of Washington, En Banc.

February 15, 1927

Appeal from Superior Court, King County; Claypool, Judge pro tem.

Action by Harry S. Norman against W. J. Levenhagen and wife, in which the judgment was rendered for plaintiff, and in which John Gerald and wife were garnished. From an adverse judgment in the garnishment proceeding, plaintiff appeals. Affirmed.

Jas. A Dougan, of Seattle, for appellant.

R. C Hazen, of Seattle, for respondents.

FULLERTON J.

This is an appeal from a judgment entered in a garnishment proceeding. The appeal is before us upon the findings of fact made by the trial court; the contention being that the findings require a judgment contrary to that entered by the trial court.

The facts, as found by the trial court, are, in substance, these On May 10, 1924, and for some time both prior and subsequent thereto, the respondents Walter J. Levenhagen and Augusta Levenhagen were husband and wife, living together as such. On the date given Walter J. Levenhagen contracted to purchase certain real property, situated in the city of Seattle, for a consideration of $6,800. At the time of the purchase he paid on the purchase price the sum of $800 in cash, assumed a mortgage which was on the property of $3,500, agreed to pay $500 on or before February 10, 1925 and agreed to pay the remainder of the purchase price ($2,000) in monthly payments of $50 each, beginning June 10, 1924. To acquire the money for the first payment, the respondent Walter J. Levenhagen gave his promissory note to a bank for that amount, securing the note by pledging certain diamonds which were the separate property of Augusta Levenhagen. The pledge was subsequently foreclosed by the bank, and the note paid from the proceeds of the sale of the diamonds. On the remaining part of the purchase price Walter J. Levenhagen 'made some payments, not to exceed $250.' All the other payments made on the contract were made by Augusta Levenhagen from her separate funds. On August 19, 1924, Walter J. Levenhagen conveyed his interest in the property to Augusta Levenhagen by a quitclaim deed, and subsequent to the execution of the quitclaim deed Augusta Levenhagen managed and dealt with the property as her separate property. On December 13, 1924, the appellant in this proceeding recovered a judgment against Walter J. Levenhagen, personally, and against the community consisting of Walter J. Levenhagen and Augusta Levenhagen, in the sum of $547.04, on an indebtedness represented in part by a note of $300 given by Walter J. Levenhagen, as a 'commission upon the sale of the above-described property.' On June 10, 1925, Augusta Levenhagen sold the property to John Gerald and Nettie Gerald under a contract calling for installment payments, and on which there was a balance due the vendor more than sufficient to satisfy the judgment of the appellant.

Based on the facts found, the trial court made the following conclusions of law:

'That the quitclaim deed from Walter J. Levenhagen to Augusta Levenhagen, duly made, executed, and delivered on the 19th day of August, 1924, conveyed to said Augusta Levenhagen the property therein described as her sole and separate property, that said conveyance was bona fide, and that said property was, therefore, not subject to the lien of the judgment obtained against Walter J. Levenhagen, and the community composed of said Walter J. Levenhagen and Augusta Levenhagen, his wife; that the order to show cause issued herein should be dismissed and dissolved, and the writ of garnishment obtained herein should be discharged and dissolved, that the plaintiff should take nothing by virtue of said writ, and that the defendant Augusta Levenhagen shall have and recover from the plaintiff her costs and disbursements herein to be taxed.'

The judgment followed the conclusions of law; the garnishments theretofore issued being quashed and the garnishment proceedings dismissed.

The question whether the fund derived from the sale of the property was subject to the community debt of the respondents depends upon the further question whether it was the community property of the respondents or the separate property of the respondent Augusta Levenhagen. If it is the property of the community, it is so subject; but, if it is the separate property of Augusta Levenhagen, it is not.

It is the settled doctrine of this court that the status of property, as to being community or separate, is to be determined as of the date of its acquisition. If the property is...