Shedden v. Sylvester

• Court: Washington Supreme Court
• Writing for the Court: CHADWICK, J.
• Citation: Shedden v. Sylvester, 88 Wash. 348, 153 P. 1 (Wash. 1915)
• Decision Date: 01 December 1915
• Docket Number: 12513.
• Parties: SHEDDEN v. SYLVESTER et al.

153 P. 1

88 Wash. 348

SHEDDEN v. SYLVESTER et al.

No. 12513.

Supreme Court of Washington

December 1, 1915

Department 1. Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.

Action by John S. Shedden against T. Harry Sylvester and others. From a judgment for plaintiff, the defendant Co-Operative Orchards Company appeals. Reversed and remanded, with instructions.

Van Nuys & Hunter, of Seattle, for appellant.

Edward V. Lockhart, of North Yakima, for respondent.

CHADWICK J.

The first question presented in this case is one of jurisdiction. The action was brought to foreclose a mortgage upon real property in Benton county. When the issues had been made up the parties stipulated that the case be transferred to the county of Yakima, the ground for the change being to serve the convenience of witnesses. After the case had been transferred to Yakima county and a decree entered the attorneys who had appeared for the defendant withdrew from the case, and present counsel were substituted. An objection was then made to the jurisdiction of the court. This was overruled.

It is contended that under the decisions of this court ( McMaster v. Advance Thresher Co., 10 Wash. 147, 38 P. 760; J. E. Hammel v. Fidelity Aid Association, 42 Wash. 448, 85 P. 35; A. J. West v. John Martin, 47 Wash. 417, 92 P. 334; Whitman County v. U.S. Fidelity &amp Guaranty Co., 49 Wash. 150, 94 P. 906; A. B. Richman v. Wenaha Co., 74 Wash. 371, 133 P. 467) the court had no jurisdiction to enter the decree. We think that counsel are inclined to give to the decisions relied on a meaning they will not bear. It is true that a local action must be begun in the proper county, and if it is not so begun, a court will, as directed by statute, transfer it to the proper county. This court has also held that, if a judgment be taken in the wrong county, either by default or over the protest of a defendant, it is taken without jurisdiction, and will be set aside upon direct attack. The statute fixing the venue of an action must be construed with reference to all other statutes affecting procedure. In State ex rel. Howell v. Superior Court, 82 Wash. 356, 144 P. 291, this court conceded, for the sake of argument, that the action there sought to be controlled by mandamus was local to King county, but held that the court was not without power to change the venue to Chelan county, where the convenience of witnesses and the ends of justice demanded such change, saying:

'It is plain from these provisions [Rem. & Bal. Code, §§ 209, 215] of the statute that, where these causes exist [being causes of a change of venue], in either a local or transitory action, the change may be made; and the statute expressly provides that the cause shall be tried in the county to which the change is made. That court necessarily must have jurisdiction of the case.'

One Forsyth was the owner of certain arid lands in Benton county, upon which were two pumping plants. Respondent introduced one Sylvester to him as a prospective purchaser of his property. After some negotiation Sylvester took an option upon the land at $180 an acre. This included the pumping plants. It was Sylvester's purpose to sell the land to parties in the East. This he did by making contracts of sale, taking in payment $75 in cash and promises to pay the balance in installments. Sylvester formed a corporation called River Front Power & Irrigation Company, and caused the title to the two pumping plants to be conveyed to the corporation. He also contracted with the several purchasers of the subdivided tracts to pay $75 an acre per year for four years for planting, irrigating, and caring for the tracts until the trees to be planted thereon came to maturity. He caused to be executed a note for $6,000 (November 30, 1909) upon one plant, and $4,000 (February 11, 1910) upon the other, each to Forsyth. It is now insisted that Sylvester was the owner of one-half of each note and respondent the owner of one-half of each note, respondent's interest being therefore $5,000, which it is contended was to be paid him as a commission for introducing Sylvester to the owner of the land. The $6,000 was secured by a mortgage of even date. The River Front Power & Irrigation Company had no funds and defaulted in their obligation to the buyers of the tracts. On December 14, 1910, the River Front Power & Irrigation Company executed a mortgage for $10,000 to Forsyth to secure both notes. After notice of the situation had been brought home to the purchasers, they met Forsyth and Sylvester in New Jersey in January, 1911. After taking account of the bad affairs of the scheme, a voluntary credit was made upon the contracts of purchase of so much an acre. The titles to the two pumping plants were conveyed to another corporation, the Co-operative Orchards Company, a corporation formed by those who had purchased lands from Sylvester. The notes of $6,000 and $4,000 had been made payable to, and it is said that they were to be held by, Forsyth, the owner of the land, as trustee of the parties mentioned. At the meeting in the East, Forsyth voluntarily canceled and surrendered the note for $4,000, and caused a credit to be made of $1,000 upon the $6,000 note. Whereupon the owners, acting through their corporation, agreed to pay, and did pay, other debts aggregating some $15,000 and agreed to settle with the respondent. We think it is clear that Forsyth, the original owner of the property, who held the note as a trustee for the corporation, gave assurance to the eastern people that the Shedden note could be settled for an inconsequential sum. Almost immediately after the meeting in the East Forsyth assigned to respondent the $6,000 note and the $10,000 mortgage. Respondent soon thereafter demanded payment of the note in full. After considerable correspondence the Co-operative Orchards Company agreed that it would pay respondent $1,000 down and $100 each month thereafter. Under this agreement the company paid $2,138.96, together with interest up to October 1, 1912. This action is brought as an ordinary suit in foreclosure.

The defenses which are material at this time are that there was no consideration for the $6,000 note and the $10,000 mortgage; that the mortgages were given to secure a purchase price and all sums due and owing on account of the cost of the pumping plant, either in law or in equity, had been discharged by the issuance of stock in the River Front Power & Irrigation Company to Forsyth; that fraud was practiced upon the individuals who formed themselves into appellant corporation by concealing...