Witzel v. Tena

• Citation: 295 P.2d 1115,48 Wn.2d 628
• Decision Date: 12 April 1956
• Docket Number: No. 33513,33513
• Parties: Frances WITZEL, Appellant, v. Tell TENA, Respondent.
• Court: United States State Supreme Court of Washington

Page 628

48 Wn.2d 628

295 P.2d 1115

Frances WITZEL, Appellant, v. Tell TENA, Respondent.

No. 33513.

Supreme Court of Washington, Department 2.

April 12, 1956.

Rehearing Denied May 16, 1956.

Binns, Cunningham & Fletcher, Tacoma, for appellant.

Everal Carson, Vancouver, for respondent.

OTT, Justice.

The plaintiff, Frances Witzel, and the defendant, Tell Tena, were married May 8, 1920. October 31, 1928, they entered into a written contract to purchase land, stock, and equipment in Clark county. The purchase price was $40,000 and was to be paid at the rate of $500 a month, which included interest at six per cent per annum on the deferred balance. By 1932, the contract balance had been reduced to approximately $30,000. April 26, 1932, the seller deeded the property to the purchasers and took mortgages on the land, stock, and equipment as security. From 1932 until 1937, the Tenas made no payment on the principal, and paid only a part of the interest on the mortgage debt. In 1935, the mortgagee voluntarily waived all interest due and unpaid, and reduced the balance of the principal to $22,500.

In 1937, Mrs. Tena Left the farm and commenced divorce proceedings against Tell Tena in Clark county. In her complaint, she claimed no interest in the community property, and prayed that it be awarded to Tell Tena. This divorce proceeding was abandoned.

July 29, 1939, she obtained a divorce from Tell Tena in Nevada. Prior to obtaining the Nevada divorce, she wrote to Mr. Tena, asking him to enter an appearance in the Nevada court and sign a waiver. She included a copy of a letter her attorney had written to her. Her letter and the attorney's letter indicated that she claimed none of the property owned by the parties, and was interested only in the divorce.

After receipt of the letters, Mr. Tena signed the waiver and the appearance, as requested. In her complaint filed in the Nevada court, Mrs. Tena alleged that there was no community property, and, in granting the divorce, the court found that all of the allegations in the complaint were true. July 30, 1939, Mrs. Tena married Mr. Witzel and moved to California, where she has since resided.

When the parties were divorced in 1939, the real and personal property of the community was encumbered in the sum of approximately $25,000 and, at that time, had a value of approximately $21,000. In the ensuing sixteen years, Tell Tena worked to improve the farm and, at the time of the trial, the land was valued at approximately $53,000 and was clear of the debt.

Mrs. Witzel commenced this action May 5, 1953, alleging that she owned a one-half interest in the community real property acquired in 1928; that the community realty had not been disposed of by the divorce decree; that, at all times since the divorce, the parties have been tenants in common; that Tell Tena should be required to render an accounting, and that the land should be partitioned in kind, or sold and the proceeds of the sale divided between the parties.

In his answer, the defendant denied the allegations in the complaint and affirmatively pleaded, among other defenses, that the plaintiff was estopped to claim any interest in the real property in question, and prayed that the title to the property be quieted in him.

The cause was tried to the court. Findings of fact, conclusions of law, and judgment awarding the plaintiff $1 and quieting title in the defendant were entered. The plaintiff has appealed.

The superior courts of this state are courts of general jurisdiction and have power to hear all cases in equity and in law. Art. IV, § 6, state constitution; RCW 2.08.010 [cf. Rem.Rev.Stat. § 15].

'When a suit for partition is in a court of equity, or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. 'He who seeks equity must do equity.' Hence whoever, by a suit for partition, invokes the jurisdiction of a court of equity in his behalf, thereby submits himself to the same jurisdiction, and concedes its authority to compel him to deal equitably with his cotenants.' (Italics ours.) Freeman on Cotenancy and Partition, 2d Ed., 674, § 505.

RCW 7.52.070 [cf. Rem.Rev.Stat. § 844], relating to the trial of partition suits, provides:

'The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried, and determined in such suit, and where a defendant fails to answer, or where a sale of the property is necessary, the title shall be ascertained by proof, to the satisfaction of the court, before the decree for partition or sale is given.' (Italics ours.)

The statute requires that all of the parties' rights be determined in such suit and, since the trial court is one of general jurisdiction, equitable rights as well as legal rights are adjudicated. It is the duty of the court, in a partition suit, to determine title when that issue is presented. Womach v. Sandygren, 1917, 96 Wash. 12, 164 P. 600; Washington Pulp & Paper Corp. v. Robinson, 1932, 166 Wash. 210, 6 P.2d 632.

The respondent, by pleading equitable defenses and praying for a decree quieting title, raised the issue of title and invoked the equity jurisdiction of the court. Determination of the appellant's title was a prerequisite to a decision on the issue of partition. It was, therefore, necessary for the court to consider the facts affecting title to the property in qeustion, both before and after July 29, 1939.

The property in question was acquired by the parties during coverture, and is rpesumed to have been community property. Abel v. Abel, Wash.1955, 289 P.2d 724. The real property was not disposed of in the Nevada divorce proceeding. Under the rule of Ambrose v. Moore, 1907, 46 Wash. 463, 90 P. 588, 11 L.R.A.,N.S., 103, the parties thus became tenants in common. It follows that, by the divorce decree, appellant was not divested of her title to an undivided one-half interest in the real property belonging to the parties.

Can the appellant now assert her title? A party's conduct may, under certain circumstances, preclude him from asserting a vested right. The doctrine of equitable estoppel or estoppel in pais is applied where justice forbids that one speak the truth in his own behalf. Code v. London, 1947, 27 Wash.2d 279, 178 P.2d 293. For the doctrine to be applicable, there must be (1) acts, statements, or admissions inconsistent with a claim subsequently...