Reynolds v. Reynolds

• Decision Date: 02 March 1906
• Citation: 84 P. 579,42 Wash. 107
• Parties: REYNOLDS v. REYNOLDS et al.
• Court: Washington Supreme Court

84 P. 579

42 Wash. 107

REYNOLDS v. REYNOLDS et al.

Supreme Court of Washington

March 2, 1906

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Charles H. Reynolds against Blanche A. Reynolds and others. From a judgment for defendants, plaintiff appeals. Affirmed.

E. H. Belden, D. R. Glasgow, and Guy B. Groff, for appellant.

James A. Williams and Denton M. Crow, for respondent.

MOUNT C.J.

This action was brought by the plaintiff, who prayed in his complaint to be adjudged the owner of certain lots in Spokane, and that his title to said lots be quieted against the claims fo the defendants. After issues joined upon the facts, the cause was tried to the court. At the close of plaintiff's evidence, the action was dismissed. Plaintiff appeals.

Respondents move to dismiss the appeal, because the notice of appeal was first filed and then served, and because proof of service of the notice of appeal was not filed within five days after the service of the notice. Prior to the act of 1899, p. 79, c 49, the latter ground of the motion was held sufficient for a dismissal of the appeal. Puckett v. Moody, 17 Wash 610, 50 P. 494, and cases there cited. But since that time the amendment of 1899 was passed, which materially changes the prior act and which provides that no appeal shall be dismissed for any defect in the notice of appeal or the service thereof, if the appellant shall forthwith perfect the appeal. It is conceded in this case that a proper notice was served within time, and that proof thereof was subsequently made, but not within time. This later statute was evidently intended to cover such cases. Since the appeal appears not to have been delayed, or respondents injured in any way, the motion to dismiss is denied without terms.

Upon the merits, the facts as shown by the record are that on May 11, 1891, Job Reynolds, who was appellant's father purchased from James Monoghan and wife the land in question, for a consideration of $3,500. At that time the appellant was indebted to his father, Job Reynolds, in large amounts, which indebtedness was evidenced by promissory notes. On June 23, 1891, Job Reynolds agreed to sell said lands to his son, this appellant, upon consideration that the son would pay to his father a promissory note for $2,000, dated April 29, 1891, and due April 29, 1894. At the time of this agreement, the said Job Reynolds executed and delivered to his son a bond for a deed, which was to be made upon compliance with the terms of the note. Appellant did not pay the note when it matured, and thereafter, upon a request of his father, refused to pay it. On March 6, 1899, the said Job Reynolds made his last will, which contained the following provisions: 'Fifth. Whereas, on the 1st day of February, A. D. 1889, at the instance and request of my son Charles H. Reynolds, I made an advancement to him of the sum of $8,000, which said advancement was made and paid by me and accepted by the said Charles H. Reynolds as his full distributive share of my estate as heir at law or otherwise at the time of my death, and that by reason of the foregoing recital and the further fact of my having furnished large sums of money since the advancement above referred to and at the instance and request of my said son Charles H. Reynolds, for investment in real estate for his benefit, and as the same has been accompanied by great pecuniary loss to me, I have omitted him as one of the general beneficiaries under this will as he has received from me more that his pro rata share of my estate. Sixth. I direct that should my said son Charles H. Reynolds accept and concur in the provisions of my will that my executor shall cancel and deliver to him all of the various evidences of indebtedness which I may hold against him at the time of my death. Otherwise all such indebtedness shall be enforced against him for the benefit of my estate.' In June, 1900, Job Reynolds died, and subsequently his will was probated in the state of Iowa, where he resided. The will was not submitted for probate in this state. Appellant did not contest the will but, without filing any written acceptance, submitted thereto. Upon the settlement of the estate, the executor of the will conveyed the property in question to Florence M. Price, a sister of the appellant and one of the legatees under the will, in consideration fo $900 which was her distributive share of the estate. After the property had been conveyed to the said Florence M. Price, appellant placed his bond for a deed upon the records in Spokane county, and brought this action, claiming that he had purchased the property in 1891 from...