Roesch v. Gerst, 29000.

• Decision Date: 25 June 1943
• Docket Number: 29000.
• Parties: ROESCH v. GERST.
• Court: Washington Supreme Court

138 P.2d 846

18 Wn.2d 294

ROESCH v. GERST.

No. 29000.

Supreme Court of Washington

June 25, 1943

Department 1.

Action to quiet title by Anna Roesch against Caroline R. Gerst and others. All defendants except named defendant were dismissed. From a judgment for plaintiff, named defendant appeals.

Reversed with instructions.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Mr. Almon Ray Smith, of Seattle, for appellant.

H. E Foster, of Seattle, for respondent.

JEFFERS Justice.

This action was brought by Anna Roesch against Eddie Roesch, Louis Roesch, Caroline R. Gerst, Charles Roesch, Percy White and Rose White, to quiet title in plaintiff to certain property located in King county, Washington. The complaint alleged that plaintiff is the owner and seized in fee simple of such property, and is and has been for many years in possession of same; that defendants claim to have some right, title or interest in or to the property, but that such claim is ill founded.

By stipulation, all of the defendants except Caroline R. Gerst were dismissed from the action.

By her answer, defendant, Caroline R. Gerst, admitted that plaintiff has been in possession of the property, admitted that she (defendant) claims some interest in the property, and denied the other allegations of the complaint. Defendant alleged affirmatively that she is the owner in fee simple, and entitled to the possession of the property; that her title is deducible of record from the United States of America; and that defendant and her predecessors in title have paid all general taxes levied against the property. Defendant prayed that title be quieted in her.

Plaintiff by her reply, denied the affirmative matter set up in the answer.

The cause came on for hearing Before the court, and on July 20 1942, the court made and filed the following memorandum opinion:

'In my opinion the evidence establishes that for more than ten years prior to the bringing of this suit, the property in question has been in the actual, open, notorious, adverse, continuous and exclusive use and possession of the plaintiff, under claim of right, and that she is entitled to have the prayer of her complaint granted, quieting title in her, free from any claims thereto by the defendant, together with her costs.

'A decree in conformity herewith may be presented for signature.'

A decree in conformity with the memorandum opinion was signed on July 27, 1942, and filed the following day. On July 28, 1942, defendant filed a motion for new trial. Plaintiff moved to strike from the files defendant's motion for new trial, on the ground that the motion was not filed within the time provided by statute. On October 22, 1942, the court entered an order denying plaintiff's motion to strike, and denying defendant's motion for new trial.

On November 9, 1942, defendant served on counsel for plaintiff her notice of appeal from the judgment entered on July 28, 1942, and on November 10, 1942, filed such notice of appeal, together with an affidavit of service of same.

Appellant's assignments of error are that the court erred in deciding that respondent has been in adverse and exclusive use and possession of the property in question, under claim of right, for more than ten years; in rendering a decree and judgment that respondent is the owner and seized in fee simple of the real estate here involved; in not granting the prayer of the affirmative defense, restoring to appellant the possession of the property, and quieting her title thereto.

At the outset, we are met by a motion made by respondent to dismiss this appeal, for the reason that the notice of appeal was not given within thirty days after the entry of judgment. It is respondent's contention that in this kind of a case, a motion for new trial must be filed with the clerk, and served upon the adverse party, within two days after receipt of a memorandum decision, and not within two days after entry of the formal judgment. This specific question was Before this court in the case of Bezich v. Columbia Insurance Co., 168 Wash. 379, 12 P.2d 413, and was decided contrary to respondent's contention. The motion is denied.

While as indicated by the trial court's memorandum opinion, the judgment seems to have been based upon the theory of adverse possession, the testimony and respondent's argument indicate that she is basing her claim of right both on the theory of a parol gift and by adverse possession. We shall therefore discuss the evidence upon both theories.

Louis Roesch, at the time of this trial, was a man about seventy-eight years of age. Respondent, Anna Roesch, is the widow of Fred Roesch, who was a brother of Louis. Appellant, Caroline R. Gerst, is a sister of Louis Roesch. Julia Cimmerer, now deceased, was a sister, and Eddie Roesch is a brother, of Louis Roesch.

Louis Roesch and one Shafer acquired the property here in question in 1917, and had the title placed in the name of Charles Roesch, another brother of Louis. Charles Roesch never had or claimed any interest in the property. Sometime subsequent to its acquisition, Louis obtained Mr. Shafer's interest in the property. In 1922, at the request of Louis, Charles Roesch, by quitclaim deed, conveyed the property to Julia Cimmerer, who at all times held it in trust for Louis, making no claim to any interest therein. On September 11, 1934, at the request of Louis, Julia Cimmerer, by quitclaim deed, conveyed the property to Caroline Gerst, appellant herein, who held it as trustee for Louis until September, 1941, when Louis turned the property over to her, since which time Louis has claimed no right, title or interest in it.

It does not appear just why Louis Roesch had the title to the property taken and held by his brother and sisters. There is nothing in the record to indicate that it was done for the purpose of defrauding anyone, or covering up the title, and it appears that respondent knew that Louis was the actual owner.

It was stipulated that at the time of trial the record title stood in the name of Mrs. Gerst.

Louis Roesch came to Seattle from Buffalo, New York, in about 1906. Sometime thereafter he became engaged with his brogher Edward in the automobile business. In about 1918, when Louis was visiting his mother in the east, he saw his brother Fred and respondent, who at that time lived in Buffalo. Fred was sick, and had been for some time. Respondent testified on direct examination that in 1918 Louis came to their home in Buffalo and said that he was going to incorporate a company, and wanted Fred and her to come to Seattle, which they did in April, 1919. Respondent's direct examination continues:

'Q. When Louis was there in 1918, what if anything did he say about his business being prosperous or otherwise? A. He said he had made enough money that he was going to start a business and form a company, and he was giving each one of his brothers and sisters stock in the company. He was going to incorporate a company and each one of them was to get so much stock. He promised Fred $5000 stock, and when he came out he gave him $2500.

'Q. What if anything did he say requestion you and Fred to come out here? A. He told me I had worked long enough and Fred was sick and if I would come out, he though I was entitled to a rest, and he would give Fred a car and he would buy me a home and he would see we were taken care of.'

The witness testified that she came to Seattle in April, 1919, and that Phil Gerst, her brother-in-law, came with Fred and her.

'Q. You three came together? A. Yes, with the understanding that I was to keep house for Phil. I was to keep house until Carrie [Mrs. Gerst] straightened up her affairs in the east, and then she was coming out.'

She stated that she and Fred lived with Phil Gerst until the next spring (1920), when they moved out to the farm here in question.

'Q. What was said by Louis Roesch or any of them with reference to your going out there? A. He said he had gotten a place for me and now that Carrie had come, I could go out to the ranch and live there, and it was mine; and I went. * * *

'Q. Did you have any talk with Louis after that? A. In 1934 I asked him, 'What are you going to do about me?' I said, 'What security are you giving me?' I said, 'If anything happens to you, you know the family will fight me.' He said, 'What I promised you I will still do.''

Mrs. Roesch testified that from 1920 she and her husband continued to live on this place until her husband's death, and that she has continued to live there since that time; that no one had ever disputed her rights there.

Neither respondent nor her husband owned a home in Buffalo, and in 1918, her husband was out of work, and respondent was supporting him by taking in sewing.

Louis Roesch admitted that he told respondent he would take care of them, but he denied that he ever promised her he would give her the land here in question, or any other. He testified to the effect that he said he would take care of his brother and her, in view of Fred's condition, and the record shows conclusively that he did that. Louis gave Fred employment when he first came west, and until his condition was such that apparently he could no longer work steadily, at which time Louis took his brother and respondent to this farm. Louis had completely furnished it, and during the years that followed, he caused many improvements and repairs to be made to the property. While respondent claimed, as showing that the property was considered as hers, that she leased part of it, it appears beyond question that this was done with the consent of Louis, and that all the money received from the rental was taken in, either by respondent or her husband during his lifetime, and turned over to Louis,...