De la Pole v. Lindley

• Decision Date: 20 November 1924
• Docket Number: 18565.
• Citation: 230 P. 144,131 Wash. 354
• Court: Washington Supreme Court
• Parties: DE LA POLE v. LINDLEY et al.

230 P. 144

131 Wash. 354

DE LA POLE v. LINDLEY et al.

No. 18565.

Supreme Court of Washington

November 20, 1924

Department 2.

Appeal from Superior Court, Columbia County; Mills, Judge.

Action by Alma De la Pole against E. L. Lindley and another. Judgment for plaintiff, and all parties appeal, plaintiff deeming relief insufficient. Affirmed.

S. A Keenan, of Seattle, and R. M. Sturdevant, of Dayton, for plaintiff.

Will H Fouts and Roy R. Cahill, both of Dayton, for defendants.

FULLERTON J.

The plaintiff, Alma De la Pole, brought this action against the defendants Lindley, who are father and son, to recover as for the conversion of certain wheat. The plaintiff recovered in the sum of $1,277.79, and from a judgment entered in the plaintiff's favor for that sum, with interest, both parties appeal; the plaintiff contending that she was entitled to a much larger sum, and the defendants contending that there should have been no recovery at all.

The land upon which the grain was grown is situated in Columbia county, and was formerly the community property of John W. Duncan and Clara A. E. Duncan, his wife. John W. Duncan died intestate in February, 1898. The plaintiff was his adopted daughter, and was his heir at law to one-half of the community estate of which he died seized. Shortly after the death of Duncan, letters of administration of his estate were issued to Mrs. Duncan, and, in 1900, she purported to acquire, through the probate proceedings, the daughter's interest in the property. From that time forward until her death, which occurred in 1919, Mrs. Duncan treated the property as her own, sometimes farming it on her own account, and at other times leasing it to tenants, and at all times exercising acts of ownership over it, although the plaintiff continuously resided with her as a member of her household.

On December 21, 1918, Clara A. E. Duncan leased the land to the elder Lindley for a term ending on the 1st day of November 1924, 'for the annual crop rental of one-third of all crops of hay and grain grown on the premises,' during the term of the lease. Mrs. Duncan reserved, from the operation of the lease, among other parts of the property, the dwelling thereon in which she and the plaintiff were then residing. The lessee took possession of the land leased to him immediately after the execution of the lease, and raised crops thereon during the years 1920 and 1921. Mrs. Duncan died on November 27, 1919. She left a will in which she devised to the plaintiff a life estate in the land, with remainder over to a third party. She named the younger Lindley as her executor, and he qualified as such.

After the death of Mrs. Duncan, the plaintiff conceived that the sale of her interest in the land was voidable as to her, and began an action against the executor and the residuary legatee to recover such interest. She was successful in her suit, and a final decree in her favor was entered in 1922. See De la Pole v. Lindley, 118 Wash. 387, 204 P. 12. She then began the present action, with the result hereinbefore stated.

As a basis on which to measure the amount of the recovery, the trial court found these further facts, namely:

'That some time prior to the year 1920, the defendant E L. Lindley verbally transferred to his codefendant, Troy Lindley, some interest in said lease or in the crops to be grown thereunder.

'That in the year 1920 the said defendants produced on said lands 8,696.25 bushels of wheat and 10 acres of hay, which transposed into wheat, amounts to 435 bushels, or a total of 9,131.25 bushels of wheat, at a total cost to said defendants of $4,422.73.

'That in the year 1921 the defendants produced on said lands, 5,098 bushels of wheat, at a total cost to said defendants of $4,096.74.

'That the defendants sold the wheat produced in 1920 at $1.23 1/2 per bushel, and sold the crops reduced in 1921 at $1.10 per bushel, which was the reasonable value of said crops at the time they were sold.

'That said E. L. Lindley was required to account to the executor of the estate of Clara A. E. Duncan for one-sixth of the grain produced on said lands, and for the grain produced on said lands in the year 1920, the executor accounted for as having been received by him as rental under said lease, the sum of $3,579.93, which, however, was $1,789.96 in excess of the amount he was required under the terms of said lease to receive as rental for said lands in his said capacity as executor.

'That of the crops produced in 1921 the defendant Troy Lindley, as executor of the last will and testament of Clara A. E. Duncan, deceased, turned over to the plaintiff in this action, 849.4 bushels of wheat, and of the hay produced in 1920, said executor delivered to the plaintiff one-third, the equivalent of 145 bushels of wheat.

'That the plaintiff in this action is entitled to receive from the defendants the proceeds of the one-half of all of the crops produced on said lands, less the amount of wheat turned over in kind to the plaintiff, and less one-half of the total cost of the production of said crops, and less also the sum of $1,789.96, so overpaid by E. L. Lindley to the executor of the estate of the last will and testament of Clara A. E. Duncan, deceased, as aforesaid; so that,

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