Sackman v. Thomas

• Decision Date: 20 April 1901
• Citation: 24 Wash. 660,64 P. 819
• Parties: SACKMAN et al. v. THOMAS et al.
• Court: Washington Supreme Court

64 P. 819

24 Wash. 660

SACKMAN et al. v. THOMAS et al.

Supreme Court of Washington

April 20, 1901

Appeal from superior court, King county; J. P. Houser, Judge.

Action by Joseph W. Sackman and others against the Sackman-Phillips Investment Company, Charles L. Thomas, and others for a partition of real estate. From a judgment in favor of plaintiffs, defendant Charles L. Thomas appeals. Reversed.

George E. De Steiguer, for appellant.

Patterson & Easly and Wm. L. Thompson, for respondents.

PER CURIAM.

One Daniel J. Sackman, prior to the year 1867, was living at Tracyton, in Kitsap county, Wash., with an Indian woman, and by her he had children, among others the plaintiffs in this case. So far as the record shows, Daniel J. Sackman was never married before his marriage to Elizabeth W. Phillips. In July, 1864, said Sackman made a will, in which he acknowledged that the plaintiffs herein, naming them, were his children. This will does not appear to have been admitted to probate, but it was found among the papers of Daniel J Sackman by his son Isaac shortly after Mr. Sackman's death, and has been in the custody of the plaintiffs ever since. About 1868 this Indian woman died, and afterwards, in 1877, Daniel J. Sackman married Elizabeth W. Phillips, who was, before her marriage to Sackman, the widow of one Phillips, and during this marriage, and while said Daniel J Sackman and Elizabeth W. Sackman were living together as husband and wife, the real property in dispute was acquired. The grantee named in the deed was Elizabeth W. Sackman, and the grantors were Samuel L. Crawford and Charles Hilton, the first named being a witness in this suit. The consideration named in the deed was $1,700. Shortly after this deed five dwelling houses, costing in all $5,000, were built on the property. In 1889 Daniel J. Sackman died, leaving surviving him, as his sole and only heirs at law, his widow, Elizabeth W. Sackman, and his three sons, acknowledged by him in his will, the plaintiffs herein. Afterwards one Joseph Phillips son of Elizabeth W. Sackman, was appointed administrator of Daniel J. Sackman's estate. The property in dispute was not mentioned, in the inventory filed by him either as the separate property of Elizabeth W. Sackman or as community property of Elizabeth and Daniel J. Sackman. On March 5, 1890, Elizabeth W. Sackman mortgaged the property to the Jarvis-Conklin Mortgage Trust Company, and the appellant claims title under this mortgage by sheriff's deed dated November 13, 1899, under a sheriff's sale of the date of June 30, 1898, in a foreclosure proceeding against Elizabeth W. Sackman and the Sackman-Phillips Investment Company, by appellant, as assignee of the mortgage to the Jarvis-Conklin Mortgage Trust Company. In 1891, and after this mortgage was given, the administrator of Daniel J. Sackman was discharged. In December, 1891, Elizabeth W. Sackman, after giving the mortgage to the Jarvis-Conklin Trust Company, conveyed the property in controversy, with a large lot of other real estate, to the Sackman-Phillips Investment Company, under a general warranty deed, in which no mention was made of the mortgage to the Jarvis-Conklin Mortgage Trust Company. There is evidence tending to show that in 1888, and prior to the death of Mr. Sackman, the rents were collected and given to Mrs. Sackman. There is no proof as to what was done with the rents, or who occupied the property during the time intervening between the death of Sackman, in 1889, and the discharge of the administrator, in 1891. Subsequently to 1891, Elizabeth W. Sackman and her grantees have collected and appropriated all rents. In January, 1899, the plaintiffs filed their complaint herein with the clerk of the superior court of King county, and later in the same month all of the defendants, excepting only the defendants Thomas, were personally served with summons herein, and on November 3, 1899, the defendants Thomas voluntarily appeared herein. In their complaint the plaintiffs sought to have the property in dispute, viz. lots 2 and 3, in block 64, of Terry's Second addition, partitioned, and one-half allotted to them, and one-half to the Sackman-Phillips Investment Company. There was a prayer also for an accounting of the rents and profits for the five years preceding the filing of the complaint. There was also an allegation that at all times mentioned in the complaint the Sackman-Phillips Investment Company was the owner of one-half of the property, and that the other defendants claimed to have some lien, title, interest, claim or demand in the property, but that the interest of the plaintiffs in an undivided one-half was superior to such liens, claims, etc. To this complaint the defendants Thomas and wife answered, setting up six separate defenses: They denied the allegations of complaint; they alleged that they became the fee-simple owners of all said property by virtue of foreclosure proceedings of the mortgage hereinbefore mentioned; they pleaded the statute of limitations; they pleaded that their title had been confirmed and quieted by paying taxes for seven consecutive years; they pleaded a lien on account of taxes and street-improvement taxes paid; they pleaded that they had made improvements on the property amounting to $1,000. The court below found, as a conclusion of law from the facts, that the property was the community property of Daniel J. Sackman and Elizabeth W. Sackman, and not the separate property of Elizabeth W. Sackman; that the appellant was entitled to only an undivided one half of the same; and that the plaintiffs were entitled to the other undivided half. The controversy is over the question whether the property was the community property of Daniel J. and Elizabeth W. Sackman or the separate property of Elizabeth W. Sackman, The respondents move the court to dismiss the appeal--First, because this appeal and assignments of error are all based upon the insufficiency of the evidence to support the findings of fact and conclusions of law, and appellant has failed to request any findings or conclusions of law such as he claims should have been found, and he has tendered and requested the court to make two entirely different and inconsistent findings, to wit, one finding that the property is community property, and one finding that it is separate property; second, because the proof of service of notice of appeal on respondents Sarah Sophia Thomas and the Sackman-Phillips Investment Company is insufficient, in that it fails to show the place where service is alleged to have been made.

This motion is based upon two grounds. The first is that the appellant has failed to request any findings of fact or conclusions of law such as he claims should have been found and has tendered a request for inconsistent findings. In fact, the appellant did request such findings and conclusions as he claims should have been found. After the court had announced at the close of the trial its rulings on the admissibility of Mrs. Sackman's testimony, which had been received subject to objection, the appellant filed and presented to the court, and requested the court to sign, findings of fact as follows: 'That heretofore, to wit, on or about the 21st day of March, 1883, S. L. Crawford and Charles Hilton sold and conveyed to Elizabeth W. Sackman those certain premises situated in King county, state of Washington, and particularly described as follows, to wit: Lots 2 and 3, in block 64, in C. C. Terry's Second addition to the city of Seattle. That the said Elizabeth W. Sackman, at the time of so purchasing said property, was a married woman, and the name of her husband was Daniel J. Sackman. That the price of said land paid by the said Elizabeth W. Sackman to the said Crawford and the said Hilton was the sum of seventeen hundred dollars ($1,700.00). That of said purchase price one thousand dollars ($1,000.00) was a gift made to her by her son William R. Phillips, and was her separate property. That of said purchase price the remaining seven hundred dollars ($700.00) was a gift from her husband, Daniel J. Sackman, and was her separate property. That at the time of the conveyance of said property to the said Elizabeth W. Sackman it was the intention of the said Daniel J. Sackman and Elizabeth W. Sackman that the same should be the separate property of the said Elizabeth W. Sackman. That after the conveyance of said property to the said Elizabeth W. Sackman it was generally spoken of by the said Daniel J. Sackman and by him treated as the separate property of the said Elizabeth W. Sackman,' etc. These findings the court refused to make or sign, and exceptions were taken, after which the appellant further filed and presented to the court the following request: 'If the court finds that any portion of the purchase price paid by the defendant Elizabeth W. Sackman for the property described in this action was community property of herself and her husband, then the defendant Charles L. Thomas asks that the court find that one thousand dollars ($1,000.00) thereof was paid for with her separate property which she derived from her son William R. Phillips; that by reason thereof ten-seventeenths (10/17) of said property then became her separate property, and that upon the death of her husband she succeeded and became entitled to one-half of the remaining seven-seventeenths (7/17); and that the defendant Charles L. Thomas, by reason of his title derived from the said Elizabeth W. Sackman and the foreclosure proceedings against her, has succeeded to, and now is the owner of, the undivided thirteen and one-half seventeenths (13 1/2-17), or twenty-seven thirty-fourths (27/34), of said property. The defendant Charles L. Thomas further asks the court that, if the court finds the...