Roeder v. Fouts

• Decision Date: 29 October 1892
• Citation: 5 Wash. 135,31 P. 432
• Parties: ROEDER v. FOUTS ET AL.
• Court: Washington Supreme Court

31 P. 432

5 Wash. 135

ROEDER v. FOUTS ET AL.

Supreme Court of Washington

October 29, 1892

Appeal from superior court, Whatcom county; JOHN R. WINN, Judge.

Action by Henry Roeder against Martha Fouts and another for partition of land. From a judgment for defendants, plaintiff appeals. Affirmed.

Harris, Black & Leaming, for appellant.

Bruce & Brown, for respondents.

ANDERS C.J.

Appellant brought this action in the superior court of Whatcom county to obtain a decree of partition of a certain tract of land containing about eight acres, situated in the city of New Whatcom. He alleges in his complaint that he is the owner of an undivided one-third part of the premises, and that the respondents are the owners of the remaining two third thereof. The respondents deny that the appellant has any interest whatever in said land, and allege ownership in themselves of the entire tract. Both parties claim title through one Russell V. Peabody. And in order to a complete understanding of the situation of the parties with respect to each other, and of their several rights in the property involved in this controversy, a brief statement of the facts showing the origin of their respective interests, becomes necessary. In December, 1852, the appellant and said R. V Peabody concluded to engage in the milling business, and with that object in view, went to Bellingham bay, selected a cite for their mill on Whatcom creek, and also two tracts of land, which they staked off, and upon which they erected cabins. Subsequently they induced one H. C. Brown, who was a practical millwright, to join them in their enterprise, and, at his instance, the three entered into the following rather ambiguous agreement: "An article of agreement entered into this sixth day of January, eighteen hundred and fifty-three, by the following persons: H. C. Brown, Henry Roeder, and R. V. Peabody,-for the purpose of erecting a sawmill and carrying on the lumbering business, under the head of the Whatcom Milling Company, to be situated at Whatcom, on Puget sound. Each member to be equal partners in said business, and each one to take claims, each to be joint stock; and, further, if either of said company shall deem it expedient to dispose of his share, he shall give the company the first choice to purchase the same." It appears that the "claims" mentioned in the contract were locations of 160 acres of government land, under and by virtue of an act of congress commonly known as the "Oregon Donation Act," of September 27, 1850. Brown selected a claim in the vicinity, and the other two parties continued to hold and occupy the claims originally "staked off" by them. Under this arrangement the company erected a mill and carried on the business of manufacturing lumber for about two years, taking the timber for the purpose principally, if not wholly, from the claims of appellant and Peabody. At the expiration of that time, Brown disposed of his interest in the mill to Page, who subsequently sold it to Peabody, abandoned his donation claim, and went to San Francisco, and never returned. After the withdrawal of Brown from the firm, the business was conducted by the appellant and Peabody for some time, under a verbal agreement, as claimed by appellant, that the land of each should be held subject to the other's interest therein, which was to be a one-Third part thereof. Both parties continued to reside upon their respective claims up to and beyond the time required by law, but the partnership, so far as the milling business was concerned, seems to have been dissolved in 1858 or 1859, by the sale of appellant's interest therein to a third party, though partnership relations may have been subsequently resumed, but, as to that, the evidence is not clear. On January 4, 1858, R. V. Peabody conveyed, by a deed of general warranty, a portion of the claim taken up by him, and which included the land in controversy in this action, to his brother, J. E. Peabody, which deed was duly recorded. On September 17, 1862, the said J. E. Peabody and his wife executed to Minnie Peabody, a two year old daughter of R. V. Peabody, a quitclaim deed, which was at once recorded, purporting to convey all the right, title, and interest of the said J. E. Peabody and wife in and to the tract of land sought to be partitioned in this action. In the year 1867 the said R. V. Peabody died, and in 1869 J. E. Peabody, who was a resident of the state of Wisconsin, came to Puget sound, for the first time, for the purpose of looking after his own and his brother's estate. While here, he entered into an agreement in writing with appellant, which was duly acknowledged and recorded, whereby all the matters arising under the partnership agreement between his brother and the appellant were settled; and it was, among other things, agreed that appellant and the said J. E. Peabody should interchange, the one with the other, warranty deeds for the undivided one-third part of the respective donation claims taken up by appellant and R. V. Peabody. During the same year warranty deeds were executed and delivered in accordance with the terms of this agreement, and appellant thus received a conveyance of a one undivided third part of the original donation claim of R. V. Peabody, saving and excepting, by the terms of the deed, all town lots theretofore granted and conveyed in the town of Whatcom, "lying upon said donation claim." The land in question seems to be included in this deed from J. E. Peabody and wife to appellant, although the respondents claim that it is covered by the exceptions therein set forth.

In the year 1875 the said Minnie Peabody died intestate, and in 1876 an administrator of her estate was duly appointed, who, as such administrator, sold, at public sale, her interest in the land in litigation to the respondent Martha Fouts. The administrator's deed was duly recorded on November 3 1876, since...