F. T. Larrabee Co. v. Mayhew

Tolman, C. J. — This is an action to foreclose a real estate mortgage executed by the defendant Lorena Truedson Mayhew about October 21, 1921, as security for a pre-existing debt. The respondents, two of the children of Neis Truedson, deceased, by answer and cross-complaint, set up a claim to an undivided one-half interest in the land as heirs of their father, free and clear of the mortgage lien. The trial court entered a judgment against the defendant Mayhew for the full amount secured by the mortgage, but denied foreclosure of the mortgage except as to the interests of Mrs. Mayhew, which was an undivided one-half in that part of the property which had been the community estate of Neis Truedson and Lorena Truedson, his wife, *216 and an undivided one-third in that part which had been acquired by Neis Truedson before his marriage to Lorena, his, second wife. From this decree, the plaintiff has appealed. It appears that respondents are the children of Neis Truedson by his first wife, who died in the year 1900. In 1901, Neis Truedson, being then the owner of a small part of the land in question, as his separate property, intermarried with his deceased wife’s sister, who is made a defendant here under the name of Lorena Truedson Mayhew; and toi them three children were born, the defendants Edward McK., Nettie F., and Myrtle M. Truedson. During this marriage, the remainder of the real estate attempted to be mortgaged was acquired. No question is raised in the case as to the amount due upon the mortgage, or the right to foreclose, except as it affects the interests of the several children, and no objections seem to have been raised by either side to determining their several interests in the land in this action. And since the case was fully tried out on the merits without such objections, we will not enter into any inquiry as to whether this is an attempt to try the question of paramount title in a foreclosure action, or, if so, whether that may properly be done. Neis Truedson died intestate in Lincoln county, Washington, on or about October 30,1915, leaving surviving him, as we have suggested, his widow, Lorena, now Mrs. Mayhew, two children by his first wife, and three children by his second wife, all of the children being then minors. The widow was appointed admin-istratrix of his estate, qualified as such, and was thereafter appointed guardian of the persons and estates of George A. Truedson and Lena J. Truedson (now Lena J. Bradley), duly qualified as such guardian, and continued to act as such guardian until her wards be *217 came of legal age. The daughter, Lena, became eighteen years of age on February 16, 1918, and the son, George, became twenty-one on February 25,1919. In due course of the probate proceedings, Mrs. May-hew, as administratrix, filed her final account and petition for distribution; time for the hearing thereof was set; notice duly given, and a decree of final settlement was entered February 20,1917, by which the final report was approved, but it was directed that distribution of the estate should abide the result of partition proceedings which had theretofore been instituted. Those proceedings appear to have been instituted in the same cause under § 1590 et seq., Rem. 1915 Code, afterwards repealed and not now in force. The controversy, to a large extent, is as to whether these - statutory pr ovisions were properly complied with; such as, whether proper notices were given, whether the commissioners took and subscribed a proper oath, and other objections of like nature, which need not be mentioned or considered, because, in the main, they were at most but irregularities only, cured by the final order of confirmation, and if going beyond that, the statute not now being in force, no good would be achieved by discussing them, since, as we see it, the judgment must be affirmed because of a still more vital error in the partition proceedings. The statute, § 1595, Rem. 1915 Code, provides in effect that, where real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, provided the party to whom it is assigned shall pay to the other interested parties their just proportion of the true value, or secure the same to their satisfaction. Although there was no allegation in the petition that the real estate could not be divided without prejudice or inconvenience, and no *218 report by the commissioners to that effect, the commissioners proceeded to, and did, determine that the total value of the entire estate, including not only the real estate, but the personal property and money on hand, amounted to the sum of $19,291.19, and they reported to the court that they had assigned the entire estate, both real and personal, to the widow, administratrix and guardian, Lorena Truedson, subject to the payment by her to each child of the deceased of $1,937.12, which, from the report, it appears that Lorena Trued-son agreed to. This report was filed on March 12,1917, and on the same day an order of confirmation was made by the court confirming the same in every detail, and purporting to divest each child of the deceased of his interest in both real and personal property of the estate, and to confirm the whole thereof in Lorena Truedson, without any finding to the effect that the property could not be partitioned without prejudice or inconvenience. It further appears that the minor heirs were not paid any part of these sums so directed to be paid to them, nor was the payment of the same secured to them in any manner or at all. Afterwards, when respondents reached full legal age, each was taken in due course to the office of the attorney for the administratrix and guardian, where a note was signed for the sum supposed to be due each, but kept and retained by Mrs. Mayhew, and the respondents each, in due course, signed an approval of the final account of the guardian as to him, acknowledged full payment of all sums due, and the guardian was afterwards discharged as to the the person and estate of each of these wards. Whether Mrs. Mayhew was ever appointed as guardian of the estates of the three younger children, or simply assumed to act as their natural guardian, does not clearly appear from the record; but both parties here seem to assume that *219 she was such duly appointed and qualified guardian, and the findings of the trial court are to the effect that the three minors alluded to, or the two still of non-age, appeared in this action by Lorena Truedson Mayhew, their general guardian; and since no exceptions were taken to that finding, and no contention is made that such was not the fact, we shall accept the findings as conclusive. "What seems to us to be the paramount question is whether or not what was here done comes within the inhibition of the statute, § 873, Rem. Comp. Stat. [P. C. § 8319], which reads: “Neither of the referees; nor any person for the benefit of either of them, shall be interested in any purchase, nor shall the guardian of an infant be an interested party in the purchase of any real property being the subject of the suit, except for the benefit of the infant. All sales contrary to the provisions of this section shall be void.” The statute is but declarative of the common law, and presents a wholesome and long-followed rule with which all are, or should be, familiar. The same situation, in legal effect, was presented and exhaustively discussed in Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 Pac. 682, and the doctrine there announced has been many times since affirmed. Roger v. Whitman, 56 Wash. 190, 105 Pac. 628, 134 Am. St. 1105, 21 Ann. Cas. 272; Miller v. Winslow, 70 Wash. 401, 126 Pac. 906, Ann. Cas. 1914B 833; Stewart v. Baldwin, 86 Wash. 63, 149 Pac. 662; Hemrich v. Hemrich, 117 Wash. 124, 201 Pac. 10; de la Pole v. Lindley, 118 Wash. 387, 204 Pac. 12. That what was here accomplished under the guise of partition was in fact and in law a sale, cannot be doubted. The proceedings purported to take from the heirs that title which vested in them upon the death of *220 their father, for a money consideration, and vested it in the mother, who was the guardian. The opportunity for harm to the minors was greater than would have been the case in an ordinary public or private sale in the course of probate proceedings, because in such proceedings there would have been general notice and opportunity for competitive bids, while here there was nothing of the sort. The general rule as to what is a purchase, and who is a purchaser, is stated in Younkman v. Hillman, 53 Wash. 661, 102 Pac. 773. “Broadly speaking, a purchaser is one who acquires title otherwise than by descent; but in its generally accepted meaning it refers to the acquisition of property for a valuable consideration.” There is no question but that the guardian was here attempting to acquire the title vested in the minor heirs, for a valuable consideration, and the act falls squarely within the prohibition of the statute, and of the common law. But, it is contended that the three-year statute of limitations should apply, and that the two older children .are thereby barred. We think not. Section 158, Rem. Comp. Stat. [P. C. §7542], reads: “No action for the recovery of any real estate sold by an executor or administrator under the laws of this state, or the laws of the territory of Washington, shall be maintained by any heir or other person claiming under the deceased, unless it is commenced within five years next after sale, and no action for any estate sold by a guardian shall be maintained by the ward, or by any person claiming under him, unless commenced within five years next after the termination of the guardianship, except that minors and other persons under legal disability to sue at the time when the right of action first accrued may commence such action at any time within three years after the removal of the disability.” *221 Clearly the heirs have here affirmatively asserted their rights within five years from the termination of the guardianship proceedings, and those rights are not barred. Finally, it is urged that the two older children have ratified the partition sale by their acts after reaching full age, in approving the reports of their guardian, and receipting for the purported consideration. There can be no ratification without full knowledge, and we think it clearly appears here that, at the time of the guardian’s purported settlement and the filing of her final account, these young people were woefully ignorant of their rights as heirs of their deceased father. True, the attorney for the guardian testified in effect that he prepared all of the papers in advance of the visits of each of them to his office; that he went through the files or the records with them, but that they depended upon him to have everything right, and that from his explanation they ought to have understood the matter, and he judged that they did. Under the peculiar circumstances of this case, this is far too general to be taken as overcoming the testimony given by these heirs themselves, which shows generally, that they knew but little about their-father’s property; did not know what part was community and what part was separate property — in fact, did not know the meaning of these terms; that they had no advice whatever except from their stepmother; denied that explanation or information was given them by the attorney; did not know what interest the law gave them in their father’s property, or any part of it; did not know whether the note offered by the stepmother evidenced the consideration for their interest, in the real estate or their interest in the personal property, either or both; that the note executed by the stepmother was shown to them, but at her request had remained in her *222 possession, and she has never paid any part thereof, either principal or interest. Neither had completed the eighth grade in a country school, and their general information and knowledge of affairs was extremely limited. All of this was, of course, well known to the guardian and required of her their fullest protection. To hold them to a ratification under these circumstances would do violence to every principle of substantial justice. We conclude that the judgment of the trial court is right and must be, and is hereby, affirmed. Holcomb, Maiist, and Mitchell, JJ., concur.