Ryan v. Lambert

• Decision Date: 22 June 1908
• Citation: 49 Wash. 649,96 P. 232
• Parties: RYAN v. LAMBERT et al.
• Court: Washington Supreme Court

96 P. 232

49 Wash. 649

RYAN v. LAMBERT et al.

Supreme Court of Washington

June 22, 1908

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Forcible entry and detainer by T. Ryan against Magnus Lambert and E Swanson. From a judgment for plaintiff, defendant appeal. Affirmed.

H. E Foster, for appellants.

Gill Hoyt & Frye, for respondent.

RUDKIN J.

On the 8th day of June, 1904, Joseph Sthay and wife were the owners of the lot involved in this action, upon which the husband conducted a wood yard. On the above date, the husband sold the wood yard and leased the lot to the purchaser for a term of 10 years at the monthly rental of $10 per month, payable six months in advance for the first year and monthly in advance thereafter. On the 25th day of February, 1906, the lessee assigned his lease to the defendants, and on the 27th day of June, following, Sthay and wife conveyed to the plaintiff. This action was thereafter instituted under the unlawful detainer statute to recover possession from the assignees of the lease. The complaint alleged a letting by the plaintiff to the defendants from month to month, notice to quit, and a refusal on the part of the defendants to surrender possession. The answer denied the tenancy as alleged, admitted service of notice to quit, and a refusal to surrender possession, and set forth affirmatively the rights and claims of the defendants under the lease from Sthay and the assignments thereof. The reply denied that the defendants were holding under the Sthay lease as alleged, and attacked the validity of the lease itself on the ground that the leasehold premises were the community property of Sthay and wife; that the wife did not join in the lease or assent thereto or acquiesce therein; that the lease was not recorded; and that the plaintiff was a purchaser without notice. On these issues the case was tried, and from a judgment in favor of the plaintiff the present appeal is prosecuted.

The refusal of the court to strike the affirmative matter from the reply is the first error assigned. In support of their motion, the appellants maintain that, since the reply denied that they were holding under the Sthay lease, the validity or invalidity of that lease became immaterial. The plea that the appellants were in possession under a different lease from that set forth in the complaint was a mere argumentative denial of the allegations of the complaint, and added nothing to the denial already contained in the answer. Armstrong v. Musser Lumber, etc., Co., 43 Wash. 584, 86 P 944, and cases cited. But the appellants injected that issue into the case, and the respondent had a right to question the validity of the lease on any ground he might choose, so long as his defenses were not inconsistent. The denial that the appellants held under the lease...