Utterback v. Meeker

• Decision Date: 14 December 1896
• Citation: 47 P. 428,16 Wash. 185
• Parties: UTTERBACK ET AL. v. MEEKER ET AL.
• Court: Washington Supreme Court

47 P. 428

16 Wash. 185

UTTERBACK ET AL. v. MEEKER ET AL.

Supreme Court of Washington

December 14, 1896

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by A. C. Utterback and others against Ezra M. Meeker and others. From a decree for plaintiffs, defendants Ezra M. and Eliza J. Meeker appeal. Reversed.

A. R. Heilig and John P. Hartman, Jr., for appellants.

A. R Titlow, for respondents.

GORDON J.

Plaintiffs brought this action to remove a cloud upon the titles of plaintiffs to their respective pieces of land, caused by a mortgage upon the whole of said land held by the appellants Ezra M. Meeker and Eliza J. Meeker, husband and wife; also to restrain certain of the defendants from fencing up certain alleged public streets and alleys in the town of Puyallup and interfering with the ingress and egress to and from the several properties of the respondents. There are 13 plaintiffs in the case, each claiming to be lawfully in possession of distinct and different pieces and parcels of land, consisting of town lots in different additions to the town of Puyallup. The possession and right of possession of some of the plaintiffs is based upon contracts of purchase and for deeds made with the defendant the Tacoma & Puyallup Railroad Company, a corporation, and Otis Sprague, receiver therefor (not appealing), which contracts bear different dates, and embrace the premises claimed by the respective defendants. Other plaintiffs claim possession and right of possession by virtue of deeds of general warranty, with covenants against incumbrances, executed by said railroad company, conveying in severalty to such plaintiffs the several distinct pieces and parcels of land respectively claimed by them, said deeds bearing different dates. The mortgage held by the Meekers, already referred to, embraces within its description all of the lands in question owned by the plaintiffs, respectively, and was a subsisting mortgage and of record in the proper office, at and prior to the date of execution of any of the contracts or deeds hereinbefore referred to. The complaint, among other things, alleges in substance that, prior to entering into any of said contracts with the respective plaintiffs, the Tacoma & Puyallup Railroad Company-at that time the owner of the lands in question-entered into an agreement with the defendants Ezra M. and Eliza J. Meeker (appellants), whereby said railroad company, on behalf of itself and appellants, was to make sale of said town lots covered by the aforementioned mortgage to any and all purchasers it might procure, and make a full, complete, and clear title in fee simple to said lands and lots to such purchasers as might be procured. That thereafter, and in pursuance of said contract and agreement between said railroad company and the Meekers, the various plaintiffs purchased of said railroad company the lots respectively claimed by them, and made payments under their respective contracts. The complaint further alleges that appellants received from said railroad company, on account of said mortgage, the various sums paid by plaintiffs on account of their respective purchases; and also alleges that said mortgage and the indebtedness secured by it have been fully paid, and that the appellants knew that, by the terms of the contracts between the railroad company and the respective plaintiffs, the plaintiffs were to receive from said company full, complete, and perfect title in fee simple, free of all incumbrances, to the respective lots so purchased by them, and never, at any time, objected to the said railroad company making any of the aforementioned deeds and contracts, nor gave plaintiffs, or either of them, any notice that they would assert any right in and to said property by virtue of said mortgage, but, on the contrary, by their acts induced plaintiffs, and each of them, to make said purchases, in consequence of which the plaintiffs were led to believe that the Meekers would make all the necessary and proper releases and acquittances of said pieces and parcels of land, freeing and discharging any and all incumbrances against each parcel thereof; that some of the plaintiffs have erected dwellings upon their respective properties, and otherwise permanently improved the same. The complaint also alleges that the appellants unlawfully, against the rights of the plaintiffs, and each of them, and without authority, have closed up, by fencing and boarding, a number of streets and alleys in said addition to the town of Puyallup, "although the same had been dedicated to the public use forever, and although said plaintiffs had purchased said aforementioned and described pieces and parcels of land in consideration that the same should be kept open and free for the use of these plaintiffs, and for the public in general," etc. The other allegations of the complaint require no notice. The appellants demurred to the complaint upon several grounds; among others, "(2) that several causes of action have been improperly united." The demurrer having been overruled and issues of fact joined, the cause was tried, and a judgment and decree entered by the lower court in favor of the plaintiffs, from which this appeal has been taken.

A preliminary question arises upon a motion to dismiss the appeal, which motion is based upon the theory that the appellants Meeker have, by their silence and failure to make objections to the action of their codefendants (the McDonalds) receiving from plaintiffs money tendered by plaintiffs...