Stephens v. Nelson

• Decision Date: 22 August 1950
• Docket Number: 31270.
• Citation: 37 Wn.2d 28,221 P.2d 520
• Court: Washington Supreme Court
• Parties: STEPHENS, v. NELSON et ux.

221 P.2d 520

37 Wn.2d 28

STEPHENS, v. NELSON et ux.

No. 31270.

Supreme Court of Washington.

August 22, 1950

Department 1.

Clark W. Adams, Aberdeen, O. M. Nelson, Montesano, for appellants.

Monroe Stephens, Montesano, for respondent.

BEALS, Justice.

Plaintiff Monroe Stephens instituted this action, asking for a decree directing specific performance of a contract to sell real estate. After the trial, the court entered a decree in plaintiff's favor, providing for specific performance of the following written agreement between the parties:

'Whereas the undersigned Monroe Stephens and O. M. Nelson are contemplating purchasing the property of Mrs. Effie M Simmons on First Street in Montesano, and said purchases are being consummated simultaneously and mutually, Mr. Nelson is to acquire a warranty deed to portion of lot 6 which he does not at present own, being about 20 feet in width, and Stephens is acquiring a contract for all of lot 5 both in block 4 of Byles addition.

'As a part of these purchases Mr. Nelson, who is acting as attorney for Mrs. Simmons in the matter of drawing papers etc., agrees that the will, upon receipt of his deed, in conjunction with his wife, convey to Mr. Stephens the fee by warranty deed to all of said strip except the north 15 feet thereof, and also convey to Mr. Stephens in said deed a twenty-year easement over the south 10 feet of said 15 foot strip which he is reserving, said 10 foot driveway to be kept open, clear and free for the exclusive use of the properties which these parties or either of them now own or are acquiring on the west side of First street.

'As his part of this contract Mr. Stephens is to pay Mr Nelson one-fourth of the amount which Mr. Nelson pays to Mrs Simmons for said 20 foot strip and agrees to, within one year at the latest, grade said driveway out to such an extent as to enable automobiles to travel thereon from First street.

'Other work on said driveway may be done mutually when desired and upon terms then agreed upon.

'This Dec. 4th, 1946.

'[Signed] Monroe Stephens

'[Signed] O. M. Nelson'

From this decree, defendants O. M. Nelson and Melinda O. Nelson, his wife, have appealed, making the following assignments of error:

'(1) It was error for the court to decide in favor of the plaintiff.

'(2) It was error for the court to enter judgment in favor of the plaintiff.

'(3) It was error for the court to overrule defendants' motion for a new trial and decide against defendants.'

The assignments of error are all based upon the decree entered, and will be discussed together.

Respondent and appellant O. M. Nelson are both lawyers, practicing in the town of Montesano.

For some years, appellants had owned a tract of real estate in Montesano, described as the north thirty feet of lot 6, block 4, of Byles Addition. Upon this tract, which fronted on First street, Mr. Nelson had established his law office. The lots here in question are fifty feet in width.

Mrs. Effie M. Simmons, an unmarried woman, owned the south twenty feet of lot 6 and all of lot 5, a tract of land seventy feet in width. She was a nonresident of the stated and, while willing to sell all of the property, refused to sell a portion thereof. Respondent and Mr. Nelson were corresponding with Mrs. Simmons in connection with the purchase of her property. November 29, 1946, she wrote to appellant and to respondent, stating that, if respondent accepted her offer to sell lot 5 of the block above described, appellant could purchase the other portion of the tract which she owned, described as the south twenty feet of lot 6, and could act as her attorney in the preparation of the necessary documents. Appellant and respondent then signed the foregoing agreement.

Later, one Arthur M. Furnia procured from Mrs. Simmons a deed to lot 5, and Mrs. Simmons also conveyed by deed the south twenty feet of lot 6 to Mrs. Nelson, named in the deed as M. O. Nelson. Thereafter, respondent instituted an action against Mrs. Simmons and Furnia, asking for a decree directing specific performance of his contract to purchase that lot. Respondent prevailed in that action (in which appellant O. M. Nelson represented Mrs. Simmons) and, in due time, obtained title to the property.

Respondent then instituted this action against appellants, who contend (1) that, as the contract between the parties to this action was not signed by Mrs. Nelson, specific performance thereof will not be enforced against her or the marital community, the contract in question referring to land to be acquired and Mrs. Nelson having subsequently acquired the land by deed to her individually, and, as she contends, as her separate estate, and (2) that the description of the property contained in the agreement is insufficient to support the decree entered.

In this connection, appellants rely upon Rem.Rev.Stat. § 6893, the pertinent portion of which reads as follows: 'The husband has the management and control of the community real property, but he shall not sell, convey, or encumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife: * * *.'

The presumption is that real property acquired by either husband or wife during coverture is community property, and the burden rests on one asserting the contrary to show that it is the separate property of the spouse asserting the claim. Rem.Rev.Stat. §§ 6890, 6891, 6892. Reeve v. Arnoldo, 176 Wash. 679, 30 P.2d 943; Hughes v. Boyer, 5 Wash.2d 81, 104 P.2d 760; Beakley v. Bremerton, 5 Wash.2d 670, 105 P.2d 40; E. I. DuPont De Nemours & Co., Inc., v. Garrison, 13 Wash.2d 170, 124 P.2d 939; In re Dewey's Estate, 13 Wash.2d 220, 124 P.2d 805; Jones v. Davis, 15 Wash.2d 567, 131 P.2d 433.

In the case of Konnerup v. Frandsen, 8 Wash. 551, 36 P. 493, an action brought for the purpose of procuring a decree directing specific performance of a contract for the sale of real estate signed by the husband alone, this court reversed a judgment of the superior court entered upon the granting of defendant's motion to dismiss the action, made at the opening of plaintiff's case. This court held that the allegations of the complaint, to the effect that the contract was made with the full knowledge, consent, and ratification of the wife and that the wife had assented to the contract until after the plaintiff had cleared the land, stated a cause of action, and directed that the trial should proceed.

In Bowman v. Hardgrove, 200 Wash. 78, 93 P.2d 303, this court, in discussing a matter similar to that here presented, said: 'The question is whether Mrs. Bowman consented to the making of the lease, or subsequently ratified it. * * * Each case must depend very largely upon its own facts'.

In Campbell v. Webber, 29 Wash.2d 516, 188 P.2d 130, 131, an action for the enforcement of an agreement to sell real estate signed by the husband alone, a decree of the superior court directing specific performance of the agreement was affirmed, although it was admitted that the wife had not signed the contract. The trial court made the following finding: "That said earnest money receipt and agreement between the parties was executed only by defendant R. C. Webber and not by his wife. That said wife, however, participated in the negotiations for said sale, discussed the terms of same with plaintiffs, was present during the negotiations between plaintiffs and defendant R. C. Webber, and had full knowledge of the agreement between them. That when plaintiffs and defendant R. C. Webber had finally agreed to the terms of said sale, said defendant wife, in the presence of all of them, stated to defendant R. C. Webber that 'if it is satisfactory to you, it is satisfactory to me."'

In the case of In re Horse Heaven Irrigation District, 19 Wash.2d 89, 141 P.2d 400, 403, this court said: 'We have adopted the rule that, if a husband enters into a contract to sell or lease community real estate without his wife joining therein, and she either consents thereto or subsequently sanctions or ratifies his act, neither she nor the community may thereafter disaffirm it. [Citing cases.]'

In the cases above referred to, it appeared that either some cash consideration had been paid for the property or work had been done on the land by the purchaser. In the case at bar, no part of the consideration had been paid, but respondent had entered upon the tract in question and had accomplished some clearing thereon, of which Mrs. Nelson admitted that she had personal knowledge, testifying: 'Well, I didn't see him [respondent] doing it, but I presumed it was he.'

At all times herein referred to, Mrs. Nelson acted as her husband's secretary, being his sole office assistant. The tract of land...