Reed v. Johnson

• Decision Date: 24 December 1901
• Citation: 27 Wash. 42,67 P. 381
• Parties: REED et ux. v. JOHNSON et ux.
• Court: Washington Supreme Court

67 P. 381

27 Wash. 42

REED et ux. v. JOHNSON et ux.

Supreme Court of Washington

December 24, 1901

Appeal from superior court, Kittitas county; John B. Davidson Judge.

Action for an accounting and for the partition of certain real estate by Walter J. Reed and wife against Thomas Johnson and wife, in which defendants filed a cross complaint for an accounting, and demanding a conveyance of one-half of said property. From a decree in favor of defendants, plaintiffs appeal. Modified.

Graves & Englehart, for appellants.

Charles F. Munday and E. E. Wager, for respondents.

HADLEY J.

Appellants are now, and prior to the 13th day of July, 1886, were husband and wife. On and prior to the date above named they were the owners of certain real estate situated in Kittitas county, Wash.; and on said date they executed and delivered to the respondent Thomas Johnson a written instrument, denominated a 'bond for deed,' which was of the following tenor and effect: In consideration of the sum of $1, and the further efforts of said Johnson to secure the establishment of a railroad depot by the Northern Pacific Railway Company upon section 26 in township 20 N., range 15 E., W. M., the appellants obligated themselves to convey unto said Johnson, by good and sufficient warranty deed, a one-half interest in the real estate to which reference was first above made. They further obligated themselves that within 10 days after said Johnson should give them reasonable assurance of the establishment of such depot within the boundaries of said section, and after the platting of the whole or any portion of the land described in the written instrument into residence and business lots and blocks, they would convey to the order of said Johnson each alternate quarter block of lots so platted. They further agreed that at any time within one year from the surveying and platting of the first part or parcel they would, upon notice from Johnson, in like manner convey each alternate quarter block of lots that should within that time be platted, in addition to the part that should be first laid out. The expense of surveying, platting, and recording was to be borne by Johnson, and appellants were to continue the occupancy and use of those portions of the land which should remain unplatted. On or about the 26th day of July, 1886, about 65 acres of the tract covered by the aforesaid agreement was platted under said agreement, and designated as the 'Town of Cle Elum.' Thereafter, on the 2d day of August, 1886 a further agreement was executed and signed by appellant Walter J. Reed and respondent Thomas Johnson, as follows: 'For the mutual advantage and accommodation of the parties hereto, it is hereby agreed that for ninety days from and after this date, and so much longer as may be mutually agreeable to the parties concerned, the division of lots, by quarter blocks, in the town of Cle Elum, Wash. Terr., contemplated and provided for in that certain bond for deed, executed and delivered by Walter J. Reed and Barbara A. Reed, his wife, to Thomas Johnson, shall be, and hereby is, deferred, and that pending the termination of this agreement through lapse of time or mutual consent the sale of lots in the town aforesaid shall be conducted indiscriminately; that proceeds being divided equally between the said Walter J. Reed and Thomas Johnson, their heirs, legal representatives, or assigns. Upon termination of this agreement as above provided, the division of lots provided for, by quarter blocks or fractional parts thereof, shall then be made, in so far as practicable, according to the terms and conditions of the bond for deed hereinbefore referred to.' The appellants brought this suit against respondent, and in the complaint allege that the lands platted as above stated, and known as the 'Town of Cle Elum,' are the only lands that have been platted under the said contracts between the parties. It is also averred that appellants, since the execution of said contracts, have paid out large sums of money from their own personal funds for the maintenance and benefit of the town site so platted, which sums have not been repaid to them by any one or in any way, and which are a charge against said platted town site and the proceeds thereof; that appellants have advanced said Thomas Johnson large sums of money at divers times since July 26, 1886, on account of the interest of respondents in said town site under said contracts, which amounts were to be charged against the interests of respondents therein, and the same have not been paid; that said Thomas Johnson has received large sums of money from the sales of lots in said town site, and from other sources in connection therewith, said sums being in excess of his just proportion, and for which excess he is now indebted to appellants, the same being a just and proper charge against the interests of respondents; that appellants have at all times been ready and willing to comply with all the terms and conditions of said contracts to be by them performed, and have frequently demanded of respondent Thomas Johnson that the accounts between him and them on account of the said town-site transactions be balanced and closed; that the lands be divided according to the terms of said contracts, and that the contracts be terminated; that said Johnson refuses to make a settlement of said accounts, or permit a division of said lots to be made according to the terms of said contracts, and wrongfully holds said contracts as a cloud on the title to all of the lands described in said original agreement, whether the same are platted and subject to said agreement, or whether they are unplatted and not subject thereto, all of which is alleged to be to the great injury and detriment of appellants. It is alleged that the respondent Ann Johnson claims some interest in said property under said contracts as the wife of said Thomas Johnson. The complaint prays that an accounting be taken between the parties; that the accounts thereof be settled, stated, and closed; that a proper division and partition of the lots in said platted town site be made; and that said contracts be terminated and canceled. The respondents answered the complaint by way of denials, and also by way of an affirmative defense and cross complaint. In the cross complaint it is alleged, in addition to the facts alleged in the complaint concerning the contracts and the platting of lands thereunder, that on the 30th day of April, 1888, and on the 9th day of May, 1899, respectively, further and additional plats were filed upon other portions of said lands not included in the first plat, which is the only one described in the complaint. It is also alleged that, since the execution of said agreement and said original plat and supplemental plat, appellants have made sales of a large portion of the lots and blocks in the town of Cle Elum, have made conveyances thereof, and have received large sums of money therefor; that portions of the moneys so received have from time to time been paid to the respondent Thomas Johnson, but much less than his just proportion thereof; that said Johnson has paid out on account of said lands large sums of money for taxes, surveying, and platting, and other expenses incident thereto, which sums have not been repaid, and are a charge against said lands and the proceeds thereof; that said Johnson has at various times since July, 1886, advanced to appellant Walter J. Reed large sums of money. It is alleged that respondent Thomas Johnson has at all times been ready to comply with all the conditions of said agreement and supplemental agreement to be by him performed, and has demanded of appellant Walter J. Reed that the accounts between them be settled, and that said lands, both platted and unplatted, be divided according to the terms of said agreement, which demand has been refused by said Reed. The cross complaint asks an accounting, and also a conveyance to respondents of one-half of all unsold portions of said land, both platted and unplatted. The answer to the cross complaint denies many of these allegations, and affirmatively pleads the statute of limitations as to all demands stated in the cross complaint which do not relate to the cause of action, and demands arising out of the original plat described in the complaint as the 'Town of Cle Elum.' Upon the issues thus formed the parties went to trial. The cause was tried by the court without a jury, and resulted in a decree to the effect that upon the issue raised by the respective demands for an accounting there was no balance owing to either party, but that respondents are entitled to a conveyance of one-half of all the unsold lots and blocks included within the three plats named, and also one-half of the unplatted portion of said lands. From said decree this appeal is prosecuted.

No error is assigned as to the finding of the court on the question of accounting. It is assigned as error that the court granted the demands of respondents as to any lands outside of the original plat of the town site of Cle Elum and also that the court refused to find that respondents were barred by the statute of limitations as to any demands concerning lands outside of said original plat. We will, however confine ourselves to the discussion of the following assignment of error: 'The court erred in decreeing the conveyance of any of the lands mentioned in the contract on July 13, 1886, for the reason that said contract is void because of uncertainty, lack of mutuality, want of consideration, and as being against public policy.' It will be remembered that the consideration for the original agreement between the parties was stated to be the efforts of respondent Thomas Johnson to secure the establishment of a railroad depot by the ...