Hay v. Chehalis Mill Co.

• Decision Date: 28 February 1933
• Docket Number: 24336.
• Citation: 172 Wash. 102,19 P.2d 397
• Parties: HAY et al. v. CHEHALIS MILL CO. et al.
• Court: Washington Supreme Court

19 P.2d 397

172 Wash. 102

HAY et al. v. CHEHALIS MILL CO. et al.

No. 24336.

Supreme Court of Washington

February 28, 1933

Department 2.

Appeal from Superior Court, Lewis County; William E. Campbell Judge.

Action by Marcus Hay and Susan Denck against the Chehalis Mill Company and O'Connell Lumber Company. From judgment for defendants, plaintiffs appeal.

Reversed and remanded, with instructions.

P. C. Kibbe, of Tenino, for appellants.

Dysart & Ellsbury, of Centralia, and Ponder & Ponder, of Chehalis for respondents.

STEINERT Justice.

It is sought by this action to have the title to certain real estate, and the title to the timber thereon, unified and quieted in the plaintiffs. Trial Before the court, without a jury, resulted in a judgment wholly adverse to plaintiffs. From the judgment the plaintiffs have appealed.

On and prior to May 18, 1907, J. A. Veness and Augusta Veness, his wife, as a community owned two tracts of land, each comprising forty acres, in Lewis county, wash. On that day Mr. Veness entered into a contract with B. A. Bartholomew and Walter Flanigan, predecessors in interest of the appellants for the sale and purchase of the land, upon an installment payment basis. The contract expressly reserved to the vendor all fir and cedar timber then standing and growing, or fallen, on the land. The contract between the above parties was not signed by Mrs. Veness. The vendees filed their contract for record on June 19, 1907. Bartholomew and wife assigned their interest in the contract to Warren Cooley on May 22, 1908, and Cooley, in turn, assigned his interest therein to appellant Marcus Hay, on March 6, 1909. The latter assignment was filed for record on December 13, 1910. What became of Flanigan's interest in the contract is not shown by the record. In the meantime, that is, on January 8, 1908, Veness and wife conveyed and quitclaimed to respondent O'Connell Lumber Company all their interest in the timber on various tracts of land, including those above mentioned, together with all rights of way, privileges, and easements in anywise appertaining to the land. The deed also carried upon its face an assignment of the grantors' interest in and to all outstanding contracts of sale covering the lands and the balances of purchase price due thereon July 1, 1907, from the various persons who had contracted to purchase them. The habendum clause of the deed reads: 'To have and to hold unto the said O'Connell Lumber Co., its successors and assigns, forever.' The deed was filed for record on the day of its execution. Thereafter, on May 27, 1914, Hay having completed his payments on the contract, Veness and wife deeded to him the land above mentioned, subject, however, to a reservation of all timber standing and growing, or fallen, thereon, and the further reservation of a sufficient right of way on which to construct, operate, and maintain tramroads, or railroads, over and across the land forever.

Logging operations were conducted on the land over the period from 1908 to about 1930, though, of course, not continuously. Those operations were carried on at first through Peters Logging Company, which operated until about 1925 and then became insolvent. After that time the operations were conducted through the respondent Chehalis Mill Company, and lasted until about 1930. As a result of those operations the timber has been practically removed from one of the tracts, but very little from the other. Respondent O'Connell Lumber Company has continuously paid the taxes on the timber, and appellants have likewise continuously paid the taxes on the land. This action was begun some time in 1930 or 1931.

Two questions are advanced, or suggested, by the briefs, for our consideration, only one of which are we now able definitely to dispose of. Our reason for not disposing of the second question will appear later.

The trial judge in his memorandum decision stated specifically that the question involved in the case was the ownership of the timber on the lands. His conclusion was, as succinctly stated by him, that 'judgment should be for the defendants for the reason that the deed executed by Veness and wife on the 8th day of January, 1908, as a community, to the O'Connell Lumber Co., was a complete and absolute repudiation of the contract that Veness gave to Bartholomew and Flanigan, not only by the community, but by Mrs. Veness, in so far as the rights of the plaintiffs to the timber on said land is concerned.' The judgment provided in general terms that the O'Connell Lumber Company was at, and at all times since, the commencement of the action the owner of the cedar and fir timber situated on the land, with indefeasible title thereto, and with the right in perpetuity to remove it, and that the appellants had no interest in said timber in law or in equity.

The initial question presented to us, and the only one, we think, that was actually decided by the trial court, concerned the effect to be given, under the evidence, to the original contract between Mr. Veness and Messrs. Bartholomew and Flanigan. Stated somewhat more comprehensively, perhaps, the question is whether, as claimed by appellants, the contract, taken in connection with all the evidence, conferred upon the vendees and their assigns a right or interest in the land, subsequently enlarged to include the timber thereon by reason of the failure of respondents to remove it within a reasonable time; or whether, on the other hand, as claimed by respondents, the contract was void ab initio, or at least became void upon renunciation thereof by Mrs. Veness.

Under the community property law of this state, the husband may not sell, convey, or incumber community real estate unless the wife joins with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or incumbered; such deed to be acknowledged by both husband and wife. Rem. Rev. Stat. § 6893. We have the further provision by statute that all conveyances of real estate, or of any interest therein, and all contracts creating or evidencing any incumbrance upon real estate, shall be by deed. Rem. Comp. Stat. § 10550. With those sections of the statute constantly Before it for many years, this court has definitely committed itself to the doctrine that where the wife has consented to the conveyance, or contract to convey, or has subsequently ratified or sanctioned it, she may not thereafter disaffirm it. Konnerup v. Frandsen, 8 Wash. 551, 36 P. 493; O'Connor v. Jackson, 33 Wash. 219, 74 P. 372. On the other hand, where there has not been joint action by the members of the community, the act by one, in order to have any validity, must be done or performed under such circumstances as that the law will conclusively presume therefrom that there has been acquiescence on the part of the other. Allen v. Esgate, 131 Wash. 618, 230 P. 818.

Applying those principles to the case at bar, we find nothing that warrants us in...