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veals the relationship of the parties. TOL "As between the parties [husband and wife] hold the complaint good would permit a the conveyance was absolute and good as against plaintiff to claim title merely and put a de- / tinues, "nointerest. legal or equitable remained

the grantor," so good in fact, as the court confendant to the burden of setting up the deed in the grantor upon which a lien of a judgment which is assumed to be fraudulent and the subsequently rendered could attach.” Sawtelle facts which are relied on to exonerate it from v. Weymouth, 14 Wash. 27, 43 Pac. 1101. an imputation arising from the single fact. The effect of such deeds has been considthat the grantor was a husband and the ered by the court in Klosterman v. Harring. grantee a wife.

ton, 11 Wash. 138, 39 Pac. 376; Hayden v, If the law is as appellants inist it is, they Zerbst, 49 Wash. 107, 94 Pac. 909; Shorett would be entitled to judgment on the plead-v. Signor, 58 Wash. 95, 107 Pac. 1033; Powings unless defendant had set up the good ers v. Munson, 74 Wash. 237, 133 Pac. 453; faith of the deed, although it is nowhere Smith v. Weed, 75 Wash. 452, 134 Pac. 1070. mentioned in the pleadings. On the other In Malloy v. Benway, 34 Wash, 315, 75 Pac. hand, if respondent had set up the deed and 869, the court said, in considering the effect nothing more in answer to a complaint charg- of a deed made by a husband to his wife: ing no fraud, but only title and an outstand- “We think that it is a safe general rule to asing adverse interest, defendant would be en

sume that parties in their dealings are actuated titled to a judgment on the pleadings, for with regard to such dealings will be presumed

by proper motives; that therefore good faith the obvious reason, as we shall show, that until the contrary is alleged or made to apthe deed was neither fraudulent nor “pre-pear." sumptively fraudulent." In other words, re- If any effect at all is to be given to the spondent is not to be put to her burden of statute, it should follow that one who quesproof (there is no presumption; the differ- tions a deed from a husband to a wife should ence in these terms is explained in Welch v. at least plead the making of the deed and a Creech, 153 Pac. 355) until a charge of fraud plain and concise statement of the facts that actual or constructive is made. This is but give him standing to question it. Otherwise another way of saying that appellants' com- we would be put to the holding that a defendplaint does not state a cause of action. ant might be put to the burden of pleading no

We understand the rule governing the con- | fraud where none is alleged. duct of a creditor who questions a transac- [6] The statute relied on (section 5292) puts tion of the kind now under consideration, as the burden of proving the good faith of the it is gathered from our decisions, to be: If transaction upon a wife who is the grantee he levies an execution and sells property as- of her husband, but it nowhere exempts the sumed to be conveyed in fraud of creditors, transaction of the ordinary rules of pleading. he may do so, but such proceeding will not [7] Fraud is never presumed. The burden remove the cloud of an outstanding deed. If of pleading fraud is always on the one who, he does so sell, and would remove the cloud, asserts it. he must make a direct attack upon the deed. It is said in Wagner v. Law, supra, there by alleging its fraudulent character, and by is no substantial distinction between a case pleading and proving that his debtor has no that is brought before and one that is brought other property out of which he can satisfy after a sale, and, further, that it is better his debt.

to have a uniform practice, regardless of the [5] Expressions to the effect that a deed particular proceeding adopted by the credifrom a husband to a wife is "presumptively tor. fraudulent" have crept into some of our opin- [8, 9] In this connection it is not out of ions. Dill v. Carver, 70 Wash. 103, 126 Pac. place to say that it may well be doubted 86; Patterson v. Bowes, 78 Wash. 476, 139 whether appellants' complaint sets up an exPac. 225. In its proper setting of fact this isting equity. The mere assertion of a hosstatement may be true, but it cannot be laid tile title--the complaint goes no furtherdown as a fundamental either of substantive would hardly fall within the definition of law or of pleading. Such a deed may be the term. questioned as any other deed, and, if attack “One must be said to have an existing equity ed by a sufficient pleading and preliminary when he has an existing right to future payment,

though it be contingent, of which it would be proof, the burden is upon the one who claims

inequitable to deprive him.” Sallaske v. Fletchthe benefit of the transaction to explain it by er, 73 Wash. 596, 132 Pac. 648, 47 L. R. A. clear and satisfactory evidence. One wbo (N. S.) 320, Ann. Cas. 1914D, 760. would do so must be a creditor having an Nor do we think that appellants can reexisting equity-a cause of action at the cover under our holdings that, where a trial time of the transfer, and he must allege the has proceeded on the merits, we will deem the relationship, the transfer, and that the gran- pleadings amended to conform to the proofs. tor is without other property to satisfy his Sections 307, 1752, Rem. & Bal. Code. This debt. Whenever the question has been square-case comes to us upon disputed facts, and ly put up to the court, it has held that a to apply the rule of the statute we must find deed from a husband to his wife carries no that the party who invokes it has sustained his presumption of fraud. Such deeds have the right to maintain the case by competent evisanction of the statute (Rem, & Bal. Code, 8 | dence. If there are no facts, there can be

finding of facts. What purports to be find- "Thereupon the plaintiffs introduced as plainings are no more than the legal conclusions tiffs' Exhibit A the deed of purchase issued by

the sheriff of said county to the plaintiff Cranthat respondent has title and appellants have dallcovering the

dall covering the premises described in plainnot.

tiffs' complaint. The plaintiffs also introduced Granting that, if the proofs were other- as plaintiffs' Exhibit B all of the records and wise sufficient, we would hold that we would

files in cause No. 2637 in said Kitsap county

entitled 'William Crandall and J. Ñ. Conn, consider the pleading amended so as to al

Plaintiffs, v. Milton S. Lee and Wife, Defendlege that Milton S. Lee had no other prop- ants, including also the depositions in said erty out of which the debt could be satisfied, cause of the said defendants Lee and wife. The

defendant herein thereupon introduced in eviappellants still could not attack the deed to

dence as defendants' Exhibit 1, the deposition respondent or invoke the aid of the statute of in this cause of the defendant herein, Elizaamendments unless they first show that the beth M. Lee, the wife of said Milton S. Lee, debt which is the basis of their claim was

and also introduced, as defendants' Exhibit 2,

the certain deed to the said premises in controthat of a creditor having an existing equity

versy executed by the defendant Milton S. Lee at the time the deed was made. Otherwise to his said wife Elizabeth Lee." the deed is good as between the parties and The findings of fact in the action in which as against all the world. It is not "presump- the sale was had recites no more than the tively fraudulent.” It may be actually or rendition of the judgment in the courts of constructively fraudulent as to such credi New Mexico upon the 20th day of April, tors as the statute makes the object of its 1911, and the judgment, no more than that: solicitude, and who have proved themselves to “The same is hereby established and declared have sufficient standing to put the respondent to be a valid lien upon all the interest of the to her proof. The true rule can be best stat- defendant Milton S. Lee individually, and the

community interest of Milton S. Lee and Elizaed by resort to two of our former decisions,

beth M. Lee, his wife, in the lands," etc. “While it may be true that a conveyance from We know of no rule that would bind the a husband to a wife is not of itself a badge of fraud, either under the rule of the statute or the respo

respondent beyond the terms of the judggeneral rule cited, it is nevertheless a fact, ment. It is clear, therefore, that appellants which naturally awakens suspicion, lends great-have not proved that they stand in the shoes er weight to other unfavorable circumstances,

of a creditor having an existing equity at and will be for that reason set aside upon less proofs of fraud than will a transaction between

the time the deed to the respondent was made parties not having the same confidential rela under the doctrine of Henry v. Yost, supra, tion." Bates v. Drake, 28 Wash, 456, 68 Pac. and Eggleston v. Sheldon, 85 Wash. 422, 148 961. *To attack the validity of a conveyance, the

Pac. 575. person asserting the fraud must be one who has Affirmed. been injured by the fraud; and accordingly a creditor of the debtor may so attack the con MORRIS, C. J., and MOUNT, ELLIS, veyance. A conveyance made without consideration is presumptively fraudulent as to exist

and FULLERTON, JJ., concur. ing creditors of the grantor. However, there is no presumption that such a transfer was made with a view to defraud subsequent creditors. It becomes material, then, to determine TRIANGLE TRADERS et al. v. CITY OF whether Henry was a creditor of Yost and wife

BREMERTON. when the deed to Schroeder was executed." Henry y. Yost, 152 Pac. 714.

In re TRUNK SEWER, LOCAL IMPROVEIt will be seen, therefore, that there is no

MENT DIST. NO. 62. place to apply the rule, for appellants have

(No. 12701.) not proven the debt which was the founda- (Supreme Court of Washington. Jan. 11, 1916.) tion of the foreign judgment to have been

| 1. MUNICIPAL CORPORATIONS 514-PUBLIC either "an existing debt" or "an existing

IMPROVEMENT-ASSESSMENT, equity" at the time the deed was executed. In view of Laws 1911, 8 42, p. 469, deFor these reasons the cases relied upon byl claring that, when any assessment, whether the

same shall be an original assessment, an assessthe appellants, Brown v. Baldwin, 46 Wash.

ment upon omitted property, a supplemental as106, 89 Pac. 483, Plath v. Mullins, 151 Pac.

sessment, or reassessment, shall be declared 811, and Benham v. Hawkins, 82 Wash. 390, void, the council of such city or town shall make 144 Pac. 532, are not in point.

a new assessment or reassessment upon the

property which has been or will be benefited by If, after a trial upon the merits, the court

the improvement, a city is entitled, an assesscan find from the facts or from the fair in ment for a public sewer having been set aside ferences of facts that a material fact has because the provisions of Laws 1911 relating to been proven, although not pleaded, the court

| publication and the spreading of the assessment

were not strictly followed, to make a reassesswill readily apply the rule of these cases,

ment. but in none of our decisions, do we appre [Ed. Note.-For other cases, see Municipal hend, has the court ever substituted for a Corporations, Cent. Dig. 88 1207-1215; Dec. material fact the grace and favor of the stat- | Dig. Om514.] ute.


IMPROVEMENTS-SETTLEMENTS. (10) After reciting the appearances, the

| Where a contractor for the construction of trial judge certifies the course of the trial to la sewer was under the contract entitled to be:

I compensation for extra work, a settlement for

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

extra work made by the city which was not im-1 FULLERTON, J. On May 20, 1912, the peached for fraud or collusion is conclusive, city council of the city of Bremerton, by an and evidence showing its excessiveness is properly rejected on appeal to the superior court on

order duly recorded in the minutes of its objections to the assessment.

proceedings, directed the city engineer and Ed. Note.-For other cases, see Municipal the city attorney to take the necessary preCorporations, Cent. Dig. 88 1269–1271; Dec.

liminary action relative to the construction Dig. Om562.)


city, known as Warren and Ninth streets Though Laws 1911, p. 449, § 15, requires and Park avenue. Pursuant to such order an assessment district to be outlined in con- | the city engineer prepared plans for such a formity to topographical conditions, and to in- + clude as near as may be all territory which

trunk sewer, and submitted the same to the can be sewered or drained through a trunk

| council with an estimated cost thereof. The sewer, land inadvertently left out of the assess | plans were adopted by the city council on ment district may be subsequently included.

motion to that effect and were "signed by the [Ed. Note. For other cases, see Municipal

mayor and clerk.” On July 29, 1912, the city Corporations, Cent. Dig. 88 1073–1074; Dec. Dig. Om 450.]

council passed a resolution declaring its in4. MUNICIPAL CORPORATIONS Om514-PUBLIC

tention to order the improvement to be made. IMPROVEMENTS-SCOPE OF ASSESSMENT. The resolution, while it contained much ex

Under Laws 1911, p. 469, 88 42, 43, relat traneous matter not required by the statute, ing to reassessments, and declaring that the re

contained all of the required essentials; it assessment shall be made on all property benefited, though not included in the original assess set forth the general nature of the improvement, and that the fact that the contract has ment, described the routes along which the been made or completed shall not prevent assess

sewer was to be constructed, notified all ment upon property omitted, property benefited by the construction of a trunk sewer which was

persons who desired to object thereto to apnot included in the first assessment roll may pear at a meeting of the city council at a on reassessment be included.

time specified therein and present their ob[Ed. Note.-For other cases, see Municipal

jections, and directed the city engineer tu Corporations, Cent. Dig. 88 1207–1215; Dec. Dig. 514.]

report to the council at or before the time 5. MUNICIPAL CORPORATIONS Om514-PUBLIC

fixed for the hearing the estimated cost and IMPROVEMENTS-ASSESSMENTS-ORDINANCE, expense of the improvement. The resolution

Under Laws 1911, p. 469, $ 43, declaring that was, however, published in but one issue of municipalities shall proceed with an assessment

the official newspaper of the city, whereas the by passing an ordinance ordering the same, the city must make a reassessment by ordinance and

statute distinctly prescribed that it should be cannot make it by resolution.

published in two of such issues. Laws 1911, [Ed. Note. For other cases, see Municipal pp. 444, 449, 88 10, 16 (3 Rem. & Bal. Code, 88 Corporations, Cent. Dig. 88 1207-1215; Dec.

7892—10, 7892—16). Dig. Om514.)

On September 9, 1912, the city council by 6. MUNICIPAL CORPORATIONS O 466-ASSESSMENTS-VALIDITY.

ordinance ordered the sewer to be constructAn assessment for a trunk sewer should ed. The ordinance described with sufficient follow the statute and direct such amounts to certainty the routes along which the sewer be levied on the property lying between the

was to be constructed, contained an estimate termini of the improvement and back to the middle of the blocks along the marginal lines

of the cost thereof, and provided that the of the streets improved, as would represent the cost should be borne entirely by the property amount of a reasonable cost of a local sewer; / benefited, and that no part thereof should be the remainder being spread upon all real estate of the district benefited.

charged to the general fund of the city. The [Ed. Note.-For other cases, see Municipal

city council, however, did not therein "estabCorporations, Cent. Dig. $ 1109; Dec. Dig. Om lish and fix the boundaries of the district to 466.)

be assessed for such improvement," although Department 2.

the statute specifically provides that they Appeal from Superior Court, Kitsap County; Everett Smith, Judge.

shall do so. Laws 1911, p. 449, § 16; Id. Proceedings by the City of Bremerton, a

7892–16. Nor did they in this ordinance, or municipal corporation, for the establishment

in any subsequent ordinance, adopt "map, of the Trunk Sewer, Local Improvement Dis

plans and specifications" for the improvetrict No. 62. The Triangle Traders, a domes

ment, notwithstanding this also is a specific tic corporation, and others, filed objections to

requirement of the statute. Laws 1911, p. a reassessment. The objections being over

449, § 16; Id. $ 7892–16. In providing for ruled the objectors appealed to the superior

the distribution of the assessment over the court, and from a judgment there overruling

property benefited the city council in the ortheir objections, they appeal. Reversed and

dinance provided that a specific sum should remanded, with instructions to sustain ob

be assessed against the property lying bejections.

tween the termini of the sewer and back

to the middle of the blocks lying on each Frank P. Lewis and Louis Henry Legg, side thereof, and that the balance of the both of Seattle, for appellants. Thomas cost and expense should be assessed against Stevenson, of Bremerton, for respondent. Ithe remainder of the property in the district, notwithstanding the statute specifically neer submitted a final estimate of the cost of provides that:

the work. This showed estimates according "In distributing such assessments, there shall to the terms of the contract up to May 5, be levied against the property lying between the 1913, and from thence on the actual cost of termini of the improvement and back to the middle of the blocks along the marginal lines of the

the work as paid by the city, plus 10 per cent. streets or areas improved, such amounts as on the amount thereof to the contractor would represent the reasonable cost of a local aggregate totalling $40,927.63. sewer and its appurtenances, * ** and the

| On May 9, 1914, the city council passed a remainder of the cost and expense of such improvement shall be distributed over and assessed | resolution giving notice of its intention to provenes against all of the property within the bounds amend

aminants within the bounds l amend the original ordinance authorizing the of said entire district in accordance with the construction of the sewer, and on April 13, special benefits conferred thereon and in proportion to area." Laws 1911, p. 449, § 15; Id.

| 1914, passed an ordinance to that effect. The § 7892–15.

material change was the enlargement of the After the passage of the ordinance the city

district by the inclusion therein of property council directed the clerk to advertise for

not described in the original resolution of inproposals for the construction of the sewer. tention to order the work. The amended orSeveral bids were submitted in response to dinance, like the original ordinance, provided the advertisement, and that of one L. Y. Stay- for the assessment of named sums upon the ton was accepted as the lowest and best bid, half blocks abutting upon the sewer between His bid was submitted on the unit basis; that the termini thereof, and for the assessment is. at certain prices per lineal foot for the of the balance of the cost to the remainder of sewer pipe in place based upon dimensions, the property in the assessment district. Nocertain fixed prices for catch basins and man- where in the ordinance is it recited that the holes complete, and certain fixed prices for fixed sums directed to be levied on such abutthe necessary connecting wyes. On October ting property "would represent the reason15, 1912, a contract for the work was entered able cost of a local sewer and its appurtebetween the city and Stayton by the terms of nances,” nor is it recited that such sum would which Stayton agreed to perform the work equal that sum, plus the proportional share according to the plans and specifications re- of the property for the balance of the cost. ported by the city engineer at the prices An assessment was levied pursuant to the stated in his bid; the estimated cost of the ordinance, to which objections were filed by sewer completed at the prices named being certain of the interested property holders. $21,988.10.

The objections were disallowed by the counThe contractor immediately began the work cil. Appeal therefrom was taken by certain of construction, and proceeded therewith un- of the objectors to the superior court, which, til some time in April, 1913, when he ceased after a hearing, entered a judgment setting work thereon for some reason not clearly the assessment aside and remanding the explained in the record. On May 5, 1913, the cause to the city council, with instructions city engineer, at the direction of the city to reassess the property "in the manner and council, notified the contractor to resume the mode provided by law." work within five days thereafter. The con- On the remand of the cause to the city tractor failed so to do, and the council on council, that body by resolution ordered a reMay 12, 1913, by resolution, declared his con-assessment of the property. The resolution tract forfeited, notice of which was given to did not specify with any minuteness how the the contractor, to his bondsmen, and to a reassessment was to be made, and the officer banking corporation to whom the contractor selected for that duty seems to have spread had assigned the sums to become due him un- the assessment over the property much the der the contract. This led to a meeting of same as before. He levied a fixed proporthe parties interested, and to an agreement tion of the costs on the property between the between them by which the city, in consid- termini of the sewer and bordering thereon, eration of certain changes made in the orig- and distributed the remainder over the propinal contract with reference to the mode oferty included within the so-called enlarged payment to the contractor and certain waiv. district. Exception was again taken to the ers of claims made by the other parties, assessment roll by interested property holdagreed to rescind the resolution annulling the ers, which the city council overruled. Appeal contract and to permit the contractor to com- therefrom was taken to the superior court, plete the contract according to its terms as where the objections were again overruled, modified by the agreement. The resolution and the roll confirmed. This appeal is from referred to was thereupon rescinded, and the the order of confirmation in the superior contractor permitted to prosecute the work court. In this court the appellants have asto its completion. The agreement thus en- signed numerous errors, all of which are tered into permitted the city to pay directly pressed upon us with earnestness and ability. to the laborers and materialmen for the la- We shall not, however, notice them in detail, bor and material used in the construction of nor in the order in which they are presented, the sewer, and the subsequent liabilities for as they suggest certain general questions labor and material incurred by the contractor whirh can best be noticed in their general [1] The first assignment to be noticed rais-, assessment, to order a reassessment, and es the contention that the city council was within the province of the city council to without jurisdiction to order a reassessment make such an assessment notwithstanding of the property because of the numerous de- some of the errors in the original proceedings partures from the statute made by the city may properly be termed jurisdictional. council in the original proceedings under [2] The next contention is that the conwhich the trunk sewer was constructed. ) tractor was allowed for the finished work a Most of these departures we have heretofore greater sum than that to which he was justpointed out, and, without enumerating fur- ly entitled under the contract, and that the ther, it may be conceded that they justify sum attempted to be assessed against the holding invalid the original assessment. We property of the district is because thereof are constrained to hold, however, that they too large. The evidence chiefly relied upon were not sufficient in effect to prevent the to support this contention is the report of court from directing a new or reassessment the city engineer. This, as we have said, of the property. In the early case of Fred- allowed the contractor the sum earned under erick v. Seattle, 13 Wash. 428, 43 Pac. 364, the contract up to a certain point in the work construing the statute of 1893, which pro- according to the prices fixed per unit for the vided for a reassessment to pay the cost of pipe in place and from thence on the actual a public improvement where the original as- cost of the work with 10 per cent. added. sessment had been held void, it was held that But as we read the record, the city did not the "Legislature intended to provide for a re- settle with the contractor on the basis of the assessment in all cases where the assessment engineer's report. During the course of the had been held to be void, whether for irregu- work a condition was encountered not forelarities or for want of prerequisites which seen or contemplated when the contract was went to the jurisdiction of the council to entered into, which necessitated changes in levy the assessment and to order the work the original plans and which materially indone," and that such legislation was constitu creased the cost of the work. In the final tional. The principle on which the case rests settlement this condition was taken into has been reannounced by us in many subse consideration, and the contractor paid upon quent cases, and is now established law in the basis of the contract price with an allowthis state. Cline v. Seattle, 13 Wash. 444, 43

ance for the extra services; the result being Pac. 367; Stephens V, Spokane, 14 Wash. la less allowance than the engineer returned. 298, 44 Pac. 541, 45 Pac. 31; Ryan v. Sum

but an increase over the contract price it ner, 17 Wash. 228, 49 Pac. 487; Franklin

calculated alone upon the basis of the bid Savings Bank v. Moran, 19 Wash. 200, 52

for units in place. Clearly there was no Pac. 858; Bellingham Bay Imp. Co. v. New

error in this. The contractor was entitled to Whatcom, 20 Wash. 231, 55 Pac. 630; Lewis

this extra compensation, not only on the v. Seattle, 28 Wash, 639, 69 Pac. 393; Wald

Wald | principle of natural justice, but by the exron v. Snohomish, 41 Wash. 566, 83 Pac. 1106;

press terms of the contract itself which made Kuehl v. Edmonds, 85 Wash. 307, 148 Pac. 19;

provision therefor. Whether the amount Johnson v. Seattle, 53 Wash. 564, 102 Pac.

allowed is excessive or otherwise is not open 448; Hapgood v. Seattle, 69 Wash. 497, 125

to inquiry in this proceeding. No fraud or Pac. 965; Allen v. Bellingham, 77 Wash. 469,

collusion between the city and the contractor 137 Pac. 1016.

in making the settlement is either alleged or The existing statute relating to assess

proven, and the rule in such cases is that ments for local improvements is fully as

the determination of the amount earned unbroad in its provisions as the statute of 1893.

der the contract by the city authorities is It especially provides for a new or a reassess

conclusive upon the property holders. Elma ment whenever the original assessment is

v. Carney, 9 Wash. 466, 37 Pac. 707; North for any reason declared void ; the part there

Yakima v. Scudder, 41 Wash. 15, 82 Pac. of particularly applicable to the present pro

1022. ceeding reading as follows:

For a like reason there was no error in the "Whenever any assessment for any local improvement in any city or town. whether the ruling of the court in refusing to permit the same be an original assessment, assessment upon witness Coe to testify to the cost of the omitted property, supplemental assessment or re- sewer based upon the contract price. Since assessment, heretofore or hereafter made, has been or may hereafter be declared void and its

it was within the power of the city authorenforcement [refused] by any court, or for any ities to determine the question of the amount cause whatever has been heretofore or here- of the cost, the finding of the city authorities after may be set aside, annulled or declared void

upon that question was, as we have said, by any court, either directly or by virtue of any decision of such court, the council of such

conclusive. city or town shall make a new assessment or re-l [3] The property of certain of the objectors assessment upon the property which has been or was not included in the assessment district will be benefited by such local improvement, based upon the actual cost of such improvement

1 l as described in the original resolution of the at the time of its completion." Laws 1911, p. city council wherein it declared its intention 469, § 42 (3 Rem. & Bal. Code, $ 7892-42). to order the construction of the sewer, but

It was therefore within the province of was brought in under the amendatory ordithe trial court, on setting aside the original | nance providing for an enlarged district. It

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