Sawtelle v. Weymouth

• Decision Date: 19 February 1896
• Citation: 43 P. 1101,14 Wash. 21
• Parties: SAWTELLE v. WEYMOUTH ET AL.
• Court: Washington Supreme Court

43 P. 1101

14 Wash. 21

SAWTELLE v. WEYMOUTH ET AL.

Supreme Court of Washington

February 19, 1896

Appeal from superior court, Jefferson county; R. A. Ballinger Judge.

Action by Marcus A. Sawtelle, receiver of the Port Townsend National Bank, against Andrew Weymouth Margaret E. Weymouth, William De Lanty, Kate De Lanty, William G. Strong, and Nellie Strong, to set aside deeds as in fraud of creditors. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Warren Carroll and J. C. Phillips, for appellant.

Morris B. Sachs and George H. Jones, for respondents.

GORDON J.

The respondents Andrew Weymouth and Margaret E. Weymouth are, and for upward of 20 years last past have been, husband and wife. On April 18, 1890, the respondent Andrew Weymouth, with one George Moffatt, executed and delivered a promissory note to the Port Townsend National Bank, of which the appellant Marcus A. Sawtelle, is receiver. The indebtedness thus incurred by said Andrew Weymouth was for the benefit of the community consisting of himself and wife. On July 21, 1892 said community was the owner of various town lots in and adjacent to the city of Port Townsend, in Jefferson county, and also of 80 acres of land in Clallam county, in this state. On said last-mentioned day, the said Andrew Weymouth executed to the said Margaret E. Weymouth a deed of conveyance to the premises which are the subject of this litigation; and, on the 1st of June thereafter, judgment was rendered against the said Andrew Weymouth in favor of said Port Townsend National Bank upon the indebtedness heretofore mentioned, which judgment amounted to the sum of $1,375. On June 7, 1893, the judgment creditor caused a transcript of said judgment to be filed in the offices of the county auditors of said Jefferson and Clallam counties. On December 11, 1893, the respondent Margaret Weymouth, her husband joining with her, conveyed a part of this property to the respondent William De Lanty; and on the following day, viz. December 12, 1893, the remainder of said property in dispute was conveyed by the respondents Weymouth to the respondent William G. Strong. The conveyances herein referred to were duly recorded. This action was commenced by the appellant, as receiver, to set aside as fraudulent said conveyances, viz. the conveyance from Andrew to Margaret E. Weymouth, also the conveyances from respondent Margaret E. Weymouth and her husband to the respondents William De Lanty and William G. Strong, and to subject the property to levy and sale for the purpose of satisfying the judgment obtained by said bank against said respondent Andrew Weymouth. In the court below, the cause was sent to a referee, to take and report the testimony; and thereafter the court, having made its findings and conclusions, rendered its judgment and decree in favor of respondents, from which appellant has appealed.

The respondents Andrew and Margaret E. Weymouth excepted to certain portions of the findings and conclusions of the trial court, and the record contains the following stipulation of the parties, omitting title, viz.: "It is hereby stipulated and agreed by the parties to this action, through their respective attorneys, that notice of appeal and bond for costs on appeal is hereby waived on the part of the plaintiff of the defendants herein, to wit, Andrew Weymouth Margaret E. Weymouth; and that, upon the trial and hearing of this cause in the supreme court of the state of Washington, the appeal of said defendants shall be heard the same as if said notice of appeal and bond for costs on appeal had been duly given and filed herein,"-signed by the respective counsel. For want of jurisdiction, we must decline to review the findings and conclusions upon the attempted appeal of the Weymouths. We hold that the notice of appeal prescribed by the statute is essential to confer jurisdiction upon this court, and it is not competent for the parties to waive it: Kelsey v. Forsyth, 21 How. 85; Sampson v. Welsh, 24 How. 207; People v. Eldridge, 7 How. Prac. 108. "Such waiver by any stipulation of the parties is insufficient; for consent, though it may waive error, cannot confer jurisdiction." Gold Street v. Newton, 2 Dak. 39, 3 N.W. 311.

In addition to what has already been stated, the court below found that "the conveyance of the property by Andrew Weymouth to Margaret E. Weymouth was a voluntary conveyance, and without consideration"; further, "that, at the time of the conveyance *** from said Andrew Weymouth and Margaret E. Weymouth to William De Lanty, the said defendants Andrew Weymouth and Margaret E. Weymouth were, and had been for a long time prior thereto, indebted to said William De Lanty in a large sum of money, to wit, about the sum of $1,400, which said sum was the consideration for said conveyance, and said indebtedness was canceled and paid by said conveyance"; further, "that, at the time of the conveyance by Andrew Weymouth and Margaret E. Weymouth to defendant William G. Strong, *** the said defendants Andrew Weymouth and Margaret E. Weymouth were, and had for a long time prior thereto been, indebted to the defendant William G. Strong in a large sum of money, to wit, the sum of $1,200, and that said conveyance was made in consideration of said indebtedness, and said indebtedness was canceled and paid thereby." The court also found that De Lanty is an uncle of the defendant Margaret E. Weymouth, and defendant Strong is a son-in-law of the said Weymouths. The court concluded, as matters of law, that, by virtue of the conveyance from Andrew to Margaret E. Weymouth, the property described therein "became the separate property of Margaret E. Weymouth"; also, that the conveyance from respondents Margaret E. Weymouth and Andrew Weymouth, her husband, to De Lanty, "was upon a valuable consideration, and that said De Lanty has ever since been, and now is, the sole owner of said property, free from all claims of the plaintiff [appellant] made in this cause." A like conclusion was reached concerning the conveyance from the respondent Margaret E. Weymouth and her husband to the respondent Strong; also, "that at the time of the conveyances from said defendants Andrew Weymouth and Margaret E. Weymouth to William De Lanty and William G. Strong, respectively, the said plaintiff [appellant] had no lien upon the land described in said conveyances by virtue of the judgment referred to [recovered by the bank against Andrew Weymouth], or by virtue of any proceedings therein, or at all." To each of the foregoing findings and conclusions, the appellant excepted, and predicates assignments of error upon them.

As to the findings, we are entirely satisfied that they are fully supported by the evidence. A more important question is, did the findings warrant the conclusions which we have noticed? The respondents contend that the conveyances to...