Sander v. Wells

• Decision Date: 06 April 1967
• Docket Number: No. 38715
• Citation: Sander v. Wells, 71 Wn.2d 25, 426 P.2d 481 (Wash. 1967)
• Parties: A. R. SANDER and Jane Doe Sander, his wife, and J. E. DePhelps and Jane Doe DePhelps, his wife, Respondents, v. James R. WELLS and Denise Y. Wells, his wife et al., Defendants, H. L. DeGore, Appellant.
• Court: Washington Supreme Court

Page 25

71 Wn.2d 25

426 P.2d 481

A. R. SANDER and Jane Doe Sander, his wife, and J. E DePhelps and Jane Doe DePhelps, his wife, Respondents, v. James R. WELLS and Denise Y. Wells, his wife et al., Defendants H. L. DeGore, Appellant.

No. 38715.

Supreme Court of Washington, Department 1.

April 6, 1967.

Rehearing Denied July 5, 1967.

Comfort, Dolack, Hansler & Billett, John F. Hansler, Tacoma, for appellant.

Short, Cressman & Cable, John C. Hoover, Seattle, for respondents.

STAFFORD, Judge. ^*

A. R. Sander and wife and J. E. DePhelps and wife (hereinafter referred to as the respondents) sued to foreclose a mortgage or real property owned by the marital community composed of James R. Wells and wife. Mr. and Mrs. Wells defaulted and appeared only as witnesses. However, H. L. DeGore (hereinafter referred to as the appellant) answered and cross-claimed to quiet her title to the same realty. Appellant's claim of title stems from a sheriff's deed which she acquired as a judgment creditor of the community.

Appellant's 24 assignments of error present several major issues. They will be reviewed generally according to the subject matter involved rather than individually.

Insofar as the challenged findings of fact are concerned, it is usually possible, as appellant seeks to do in this instance, to diminish or enhance the weight to be attached to various evidentiary facts and thereby obtain a result contrary to that reached by the trial court. However, with the exception of findings of fact No. 6 and No. 12, which will be discussed later in this opinion, they are amply sustained by the evidence. Even if we were of the opinion that the trial court should have resolved the factual dispute the other way, this court will not substitute its judgment for that of the trial court. Hollingbery v. Dunn, 68 Wash.Dec.2d 59, 411 P.2d 431 (1966); Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959).

The trial court viewed the evidence in the following manner: In late 1962 the Wells found themselves in financial difficulty. Both Mr. And Mrs. Wells desired to borrow $7,000 from the respondents. Although Mrs. Wells followed her usual practice of leaving all community business matters to her husband, she knew the amount to be borrowed, she knew that a note and mortgage would be needed to secure the indebtedness and she knew that her husband intended to execute the same.

The marital community owned certain realty known as the Midway property. It was the only unencumbered real property they possessed. Mrs. Wells knew that this property was to be used as security for the transaction.

The preparation of necessary papers caused the usual delay. During the interim Mrs. Wells became anxious and made several telephone calls to the respondents and others connected with the transaction in an apparent effort to expedite matters. On each occasion she inquired about the availability of the money. She was advised that it would be forthcoming as soon as the papers were completed.

Although the Midway property belonged to the community the mortgage was prepared for Mr. Wells' signature alone. On November 8, 1962, Mr. Wells signed the note and mortgage and received the $7,000 from respondents as consideration. Mrs. Wells was never asked to sign the instruments. The mortgage was recorded on November 9, 1962.

Mrs. Wells knew that her husband had received the money, that it had been borrowed for community purposes and that it actually had been applied to such purposes. Also, she knew that her husband had been required to sign the note and mortgage to obtain the money. It is logical to assume that she knew her own signature was not on the instruments.

Mrs. Wells admitted that she took no affirmative action to check into the business matter, yet, she agreed that she could have had access to the community records had she been interested. They were available in her husband's office adjacent to the home.

After the transaction was completed Mrs. Wells still made no objection. To the contrary, she and her husband took some candy to the respondents and thanked them for having made the loan.

Even if one could assume that the wife had been ignorant of all matters up to This point, it is evident that she learned of them shortly thereafter. As early an January 1963, she clearly knew that the Midway property was involved. Furthermore, respondent Sander testified that he talked to her on several occasions about the subject of delinquencies and the due date. As he said, 'She was quite cognizant of the note and mortgage.' However, it should be noted, that when the Wells finally defaulted on the note in May of 1963, she continued to maintain her silence.

Appellant obtained a default judgment against the Wells in September of 1963. Thereafter, she purchased the Midway property at an execution sale in May of 1964. She received a sheriff's deed at the close of the redemption period in September of 1965.

Respondents initiated the instant action to foreclose the mortgage on the Midway property in January of 1965. There is no question that Mrs. Wells had full knowledge of all details after being served with the papers. However, she did not question her husband's execution of the note and mortgage at that time or even at the time of trial.

Appellant contends that despite the foregoing evidence, the mortgage on community real property was Void because it lacked the wife's signature. In support thereof she cites RCW 26.16.040:

The husband has the management and control of the community real property, but he shall not * * * encumber, the community real estate, Unless the wife join with him in executing the * * * Instrument of conveyance by which the real estate is * * * encumbered, and such * * * Instrument of conveyance must be acknowledged by him and his wife: * * *. (Italics ours.)

However, the assignment of error is not well taken. Contracts which convey or encumber community realty and which lack the wife's signature are Voidable not Void. Tombari v. Griepp, 55 Wash.2d 771, 350 P.2d 452 (1960). See also Stabbert v. Atlas Imperial Diesel Engine Co., 39 Wash.2d 789, 238 P.2d 1212 (1951); Koth v. Kessler, 59 Wash. 641, 110 P. 540 (1910). Thus, the mortgage here in question is merely Voidable not Void.

Unless rescinded or otherwise avoided, a voidable contract imposes upon the parties the same obligations as if it were not voidable. Stabbert v. Atlas Imperial Diesel Engine Co., supra; 1 Williston, Contracts § 15 (3d 1957); Cf. 1 Corbin, Contracts § 6 (1963) et seq.

The evidence does more than establish the negative fact that a wife failed to avoid a voidable contract. Based upon the foregoing facts pertaining to her actual knowledge, the availability of additional knowledge had she been interested, her willingness to leave the matters to her husband as well as her own participation in and actual encouragement of the transaction during its formative stages, Mrs. Wells was estopped to avoid or deny the validity of the mortgage. The community was obligated thereunder. Campbell v. Webber, 29 Wash.2d 516, 188 P.2d 130 (1947); O'Connor v. Jackson, 33 Wash. 219, 74 P. 372 (1903).

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