Wiley v. Verhaest

• Decision Date: 08 April 1909
• Parties: WILEY et ux. v. VERHAEST et al.
• Court: Washington Supreme Court

100 P. 1008

52 Wash. 475

WILEY et ux. v. VERHAEST et al.

Supreme Court of Washington

April 8, 1909

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by N.C. Wiley and wife against Victor Verhaest and others. From a judgment for plaintiffs, defendants, Victor Verhaest and wife, appeal. Affirmed.

Frank S. Griffith, for appellants.

Harold Preston, for respondents.

CROW J.

This action was commenced by N.C. Wiley and Sallie F. Wiley, his wife, against Victor Verhaest and Bertha Verhaest, his wife H. A. Harris, H. A. Harris as administrator of the estate of K. B. Harris, deceased, Zera Harris, a minor and Muryl Harris, a minor, to quiet title and to enforce the specific performance of a contract to sell real estate. On July 13, 1907, after the administration proceedings hereinafter mentioned, plaintiffs entered into a written contract to sell to Victor Verhaest lot 5, in block 21, T Hanford's addition to the city of Seattle, for $2,475. The defendant Victor Verhaest paid $50 cash thereon, and, with the consent of plaintiffs, entered into immediate possession. Plaintiffs had acquired title to one undivided one-half of the lot from the defendant H. A. Harris individually, and the other undivided one-half from the defendant H. A. Harris as administrator of the estate of K. B. Harris, deceased. When the plaintiffs tendered a deed to the defendant Victor Verhaest, he refused the same, claiming that the title was defective, but retained possession, and refused to accept a return of the $50 which he had theretofore paid. Thereupon the plaintiffs commenced this action, and, in substance, alleged that on September 26, 1906, the defendant H. A. Harris and one K. B. Harris were husband and wife, and owned the real estate as their community property; that on said date K. B. Harris died intestate, leaving her husband, the defendant H. A. Harris, and two minor children, the defendants Zera and Muryl Harris, as her only heirs at law; that on September 29, 1906, H. A. Harris was appointed and qualified as administrator of the estate of K. B. Harris, deceased; that he filed an inventory in which he included only the wife's undivided half of the lot above described; that he made application to sell the wife's undivided half of the lot to pay her half of community debts and the costs of administration; that such proceedings were had that under an order of court he sold the wife's undivided half to plaintiff N.C. Wiley; that the sale was confirmed, and an administrator's deed was executed and delivered; that all the proceedings in the matter of the estate pertaining to the sale were regular and in accordance with the statute; that the plaintiff N.C. Wiley purchased from the defendant H. A. Harris the other undivided half of the lot; that thereafter plaintiffs entered into a contract whereby they agreed to sell the entire lot to the defendant Victor Verhaest, who made a partial payment thereon, and with plaintiffs' consent entered into immediate possession; that plaintiffs have tendered a conveyance of the lot to defendant Victor Verhaest; and that he has refused to complete the purchase, to receive a return of his partial payment, or to surrender possession, basing such refusal upon the claim that there is some irregularity in the probate proceedings under which plaintiffs acquired a portion of their title.

By their prayer the plaintiffs, in substance, demand that each and all of the defendants be required to set forth any claim they may have in or to the lot; that the court ascertain and adjudge the title; that, if the plaintiffs hold title, a decree for specific performance be entered against the defendants Verhaest and wife, and that they be required to pay the agreed purchase price; that if, on the other hand, the judgment of the court be that the plaintiffs do not have title, a decree be entered setting aside the probate sale, and directing the administrator to refund the sum of $875 paid by plaintiffs as a consideration therefor. The defendants Verhaest and wife by their answer interposed certain denials, admitted their contract to purchase, alleged they were to make payment when a merchantable title was given, but that no such title had been tendered; admitted that they had made a partial payment and entered into possession, and admitted that they had refused to complete the purchase, but alleged that they did so by reason of the defective title. For affirmative defense they further alleged that the plaintiffs Wiley and wife had agreed to give them a good record and merchantable title, and to furnish an abstract showing the same; that they had furnished an abstract showing the title to be fatally defective; and that they had refused to correct the title or make the same merchantable. By their prayer they demand that plaintiffs be required to give them a good, merchantable title, and that, in the event of their failure so to do, they be ordered to refund the partial payment made. H. A. Harris, personally and as administrator, and the minor defendants Zera and Muryl Harris, by their guardian ad litem, filed answers the allegations of which need not be stated.

The trial court made findings of fact, in substance, as follows That on September 26, 1906, H. A. Harris and K. B. Harris, husband and wife, owned the lot as their community property; that on said date there existed a verbal contract between them and the plaintiff N.C. Wiley for the sale of said lot to plaintiffs for $1,400; that on September 26, 1906, K. B. Harris died intestate, leaving surviving her H. A. Harris, her husband, and two minor children, Zera and Muryl Harris, as her only heirs at law; that on September 29, 1906, H. A. Harris made application to be appointed administrator of her estate; that thereupon, the court having jurisdiction of the subject-matter, such proceedings were had that he was duly appointed and qualified; that he filed his inventory, including therein the wife's half only of the lot above described; that he made application for an order to sell the wife's half of the lot, to pay her half only of the community debts; that his application complied with the statutory requirements; that, upon such application being presented, the court made its regular order fixing a time and place of hearing, directing all persons interested to show cause why the application should not be granted; that said order to show cause was published for four successive weeks in a newspaper designated by the court; that on the day of hearing fixed in the order, and before proceeding to otherwise act upon the petition, the court regularly appointed a guardian ad litem to represent the minor defendants; that no objection to the granting of the application was made; that the court, finding the allegations of the application and petition to be true, made and entered its order directing the sale of the wife's undivided half of the lot; that thereupon the administrator, after due publication, sold the same to N.C. Wiley for $875, that the administrator made return of the sale; that the court (the minors then and there appearing by their guardian ad litem) regularly made its order confirming the sale, and directing the administrator to convey the wife's undivided half of the lot to N.C. Wiley; that the plaintiff N.C. Wiley paid the purchase price; that on the 18th day of April, 1907, the administrator made the conveyance; that all such proceedings were regular and in accordance with the statute; that thereafter the plaintiff N.C. Wiley purchased from the defendant H. A. Harris his undivided half of the lot, receiving a conveyance therefor; that out of the proceeds of the administrator's sale the administrator paid the decedent's one half of the community debts; that...