Ryan v. Ferguson
| Decision Date | 18 December 1891 |
| Citation | 3 Wash. 356,28 P. 910 |
| Parties | RYAN v. FERGUSON. |
| Court | Washington Supreme Court |
Appeal from superior court, King county; J. A. STRATTON, Judge.
Action of ejectment by Lucy A. Ryan against David Ferguson. Judgment for plaintiff. Defendant appeals. Reversed.
J. C. Haines, I. M. Hall, and Smith & Littell, ( L. B. Stedman, of counsel,) for appellant.
W Lair Hill and G. A. Hill, for respondent.
This is an action in the nature of ejectment brought by respondent to recover four city lots situate in the city of Seattle, King county. The judgment of the court below was in the plaintiff's favor for an undivided one-half of the property, and for the defendant for the other half. The defendant appeals. The complaint is in the ordinary form of complaints in actions of this nature, setting up ownership and right of possession of the demanded premises. The answer denies all the allegations of the complaint, and alleges that the defendant was the sole owner in fee of said premises, and rightfully in possession. The reply denies the ownership and right of possession of the defendant. The case was tried by the court without a jury, and the appellant bases his contention for a reversal of the judgment upon the findings of fact. It appears by said findings that the respondent is the widow of one John H. Ryan, who died in this state on the 28th day of February, 1880, intestate, leaving no lineal descendants. That in June, 1877, William N. Bell and Lucy G Bell, who were the owners in fee-simple of the real estate in controversy in this action, duly executed and delivered a deed thereof to said John H. Ryan. That the respondent and said John H. Ryan were married previous to this time, and were then living together as husband and wife, and that he paid the purchase price of said real estate out of money acquired during the said marriage by their joint labors. That in April, 1878, said John H. Ryan and said plaintiff duly mortgaged said premises to one Jeremiah S. Driggs to secure the payment of a certain promissory note of said John H. Ryan to said Driggs, bearing date of said day, for the sum of $250, and interest at the rate of 1 1/2 per cent. per month from date until paid, which said mortgage and note were subsequently assigned to one John Kennedy. That on the 7th day of May, 1880, Eben S. Osborne was by the probate court of King county, Wash. T., duly appointed administrator of the estate of said John H. Ryan, deceased, and duly qualified and entered upon the duties of such administrator. That on the 26th of July, 1880, said Osborne, as such administrator, presented to said probate court his verified petition reciting the existence of said mortgage and note; the non-payment thereof, except interest to the amount of $45; the assignment thereof to the said Kennedy; the presentation by said Kennedy of his claim on said note and mortgage, and allowance thereof by said petitioner and said probate court; that there were not sufficient personal assets to pay the funeral expenses of said deceased, expenses of his last sickness, and other claims against his estate, and that there were no personal assets whatsoever that could be applied towards the redemption of said real property; that such redemption would not be beneficial to the estate, and would be very injurious to the other creditors, and that such redemption was wholly inexpedient; that it was necessary to sell the whole of said real estate to pay the said demand and the cost and expenses of sale and the other liens; and that it was not likely there would be much, if any, surplus, and that such surplus, if any, would be required to pay the claims of the other creditors which had been allowed,-and praying an order directing the sale and conveyance of said real property according to the practice of said court, and the application of the proceeds to the payment and discharge of said mortgage debt after paying expenses of such sale, and that the residue, if any, be disposed of in due course of administration. That thereafter, and on said 26th day of July, 1880, said court, upon said petition, made an order directing the said administrator, Eben S. Osborne, to sell the real estate hereinbefore described, either in one parcel or in subdivisions, as the said administrator might judge most beneficial to said estate, at public auction, to the highest bidder, for cash, gold coin of the United States, in the manner prescribed by law; that upon such sale, and payment of the purchase price, said administrator execute a conveyance to the purchaser, which should convey to such purchaser all the right, title, and interest which the deceased would have had in such property had not the same been mortgaged by him; that the proceeds of such sale be applied to the payment and discharge of such mortgage, and that the residue be disposed of in due course of administration; that the said administrator make due return of his proceedings to said court. That thereafter, to-wit, on September 11, 1880, said administrator sold said real estate at public vendue to said John Kennedy in the manner prescribed in said order of sale, made due report of said sale, and the same was by said court duly approved and confirmed on the 22d day of November, 1880. That on the 18th day of September, 1880, said Eben S. Osborne, as administrator as aforesaid, executed, acknowledged, and delivered to said purchaser, John Kennedy, a deed of "all the right, title, interest, and estate of the estate of the said John H. Ryan, deceased, at the time of his death, and also all the right, title, and interest which the said deceased would have had in said property had not the same been mortgaged by said deceased, which deed was approved by the judge of said probate court on the 27th day of September, 1880." That thereafter, by sundry mesne conveyances, the defendant herein became, and was at the time of the commencement of this action, the owner of whatever interest vested in said Kennedy by virtue of the sale last aforesaid. That, at the time of the commencement of this action, said defendant, by his tenant, was in exclusive possession of said real estate, claiming to be the owner of the whole thereof in fee. And as conclusions of law the court found: That at the time of the death of said John H. Ryan the real estate described in the complaint was community property of said John H. Ryan and the plaintiff. That upon the death of said John H. Ryan the title to the undivided one-half of said real estate was in the plaintiff, and that said interest was unaffected by the proceedings of the probate court and administrator aforesaid. That by said proceedings and sale said John Kennedy became the owner in fee of the undivided one-half of said real property, which said estate is now vested in the defendant herein. That plaintiff, Lucy A. Ryan, was at the commencement of this action, and now is, the owner in fee of the undivided one-half of all the lots and parcels of land hereinabove described, and entitled to the immediate possession of the same. That the defendant unlawfully withholds from the plaintiff the possession of said half of said property.
It is not questioned, upon the facts found, but that the land aforesaid was community property. The controversy is as to what the estate was which the probate court acted upon. The position taken by respondent as to the community property which was sustained by the lower court, is that upon the decease of the husband only his interest therein could be administered upon, which was one-half, and that the other half belonged to the wife, and was in no wise affected by the proceedings in the probate court; and there is much to be said in support of this contention. But after a careful consideration of the question, and from the interminable confusion that would otherwise result, we are forced to the conclusion that, upon the death of one member of the community, it is the community estate which is to be administered upon for the purpose of settling the claims against the community, and that in this case the probate court not only acted upon the separate property of John H. Ryan, if he had any, but also upon the community property of the deceased and of Lucy A. Ryan. In Holyoke v. Jackson, 3 Wash. T. 239, 3 P. 841, GREENE, C.J. in speaking of this relationship, says: This property is liable for the debts of the community. Sections 2411 and 2412 of the Code of 1881 upon this subject are as follows: Neither one owns any specific part of this property before the dissolution of the community; and, upon its dissolution by the death of one member, no part of it can vest in the survivor except...
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