State Ex Rel. White v. Douglas

While I concur in the result of the majority opinion, I feel that, in justice to the trial court, some explanation should be made of certain language, used by the present writer, in the case of State ex rel. O'Brien v. Superior Court, 173 Wash. 679,24 P.2d 117, upon which the trial court no doubt relied, and upon which other judges of the superior court, and attorneys as well, may have relied in other cases. The language to which I refer is that portion of the O'Brien case appearing on page 684, volume 173, of Washington Reports, and on page 118, volume 24, of Pacific Reporter 2d, reading as follows:

"If the homestead has been created at a time prior to the entry of the decree of foreclosure, the question must be raised by the claimant in that action, if he be a party thereto [italics mine], or else the judgment will be res judicata of the matter in subsequent litigation."

Particular reference is had to the phrase "if he be a partythereto."

In the O'Brien case, this court, in answering certain specific contentions made by the relator therein, endeavored to formulate and state the rule upon the point here in question, consistent with, and deducible from, the holdings in two of our former decisions, Brandon v. Leavenworth, 99 Wash. 339,169 P. 867, and State ex rel. Federal Land Bank v. SuperiorCourt, 169 Wash. 286, 13 P.2d 890.

In the Brandon case, supra, the plaintiffs Brandon, husband and wife, brought suit to quiet title to certain real estate; to have the sale at which the defendants Leavenworth had bought the land set aside; and to have the property decreed exempt as plaintiffs' homestead. The relief sought was denied upon the ground that the judgment in a former action between the same parties was res judicata of the question involved. The decision was based on the following set of facts: The Leavenworths originally sued the Brandons and obtained a money judgment against them. A writ of execution was issued, and a return of nulla bona was made. The Leavenworths then instituted a second action against the Brandons to set aside, as fraudulent a deed which Brandon had given his wife, covering the real estate in question. Four or five days before answering in the second action against them, the Brandons filed a claim of homestead on the land, but in their answer they did not plead their claim. A decree was subsequently entered declaring the deed fraudulent, establishing the Leavenworths' judgment as a specific lien upon the land, and ordering the property sold on execution. No appeal was taken from that decree. The property was sold, and, at the sale, was purchased by the Leavenworths. Upon that set of facts, it was held, in the opinion rendered by this court in the action subsequently brought by the Brandons, that the decree in the second suit instituted by the Leavenworths was res judicata of the Brandons' right to claim the property as a homestead. The substance of the opinion is contained in one paragraph, as follows:

"The only question involved is whether the decree in the action brought by respondents [the Leavenworths] to subject the property to the payment of the judgment is res judicata of appellants' [the Brandons'] right to now claim the property as a homestead. Under the rule laid down by this court in Traders' Nat. Bank ofSpokane v. Schorr, 20 Wash. 1, 54 P. 543, 72 Am. St. 17, it was the duty of appellants [the Brandons] to plead that the land was exempt as a homestead in the suit brought to subject it to the lien of the judgment. Having failed to do so, they are barred from litigating that question in another action." (Brandon v.Leavenworth, 99 Wash. 339, 340, 169 P. 867.)

It will be kept in mind that the basis of the decision in theBrandon case was that, in a former action between the same parties, the Brandons had answered, but in their answer had failed to plead a claim of homestead exemption.

In the Federal Land Bank case, supra, the mortgagee of certain land had brought suit to foreclose its mortgage. The mortgagors and their grantees were made parties defendant. The grantees were served with summons and complaint, but did not appear or defend the action. A decree was subsequently taken against them by default. The property was sold and the mortgagee became the purchaser. The mortgagee-purchaser thereafter applied for a writ of assistance to be put in possession of the land. The application for the writ was denied by the superior court. Upon a review of the matter by this court, we held that the facts brought the case within the rule of Rem. Comp. Stat., § 602 (now Rem. Rev. Stat., § 602), providing that, in case of any homestead selected in the manner prescribed by law and occupied for that purpose at the time of sale, the judgment debtor shall have the right to retain possession during the period of redemption. The opinion specifically recited that the "complaint did not tender the issue as to who would be entitled to possession during the period of redemption, and the decree of foreclosure does not adjudicate that question," and then said:

"Had the complaint tendered the issue, or had the defendantsappeared by answer and not raised the question, a different question would be presented, upon which we here express no opinion. The cases of Traders' National Bank v. Schorr,20 Wash. 1, 54 P. 543, 72 Am. St. 17, and Brandon v. Leavenworth [discussed above], 99 Wash. 339, 169 P. 867, are different, in that in each of those cases the defendants appeared by answerand did not assert their homestead right." (Italics mine.)

Thus, it will be seen that in the Brandon case, supra, the homestead claim was disallowed because the claimant, havingappeared and answered in the former action, had nevertheless failed to plead the exemption; while in the Federal Land Bank case, supra, the claimants had not appeared or answered in the prior action, nor had the complaint in that action tenderedthe issue of the right of possession during the period of redemption. In other words, in the Federal Land Bank case, since the mortgagee did not tender the issue in its complaint, and since the grantees did not answer, but defaulted in the action, the judgment bound the grantees only upon the issues presented by the complaint. Hence, the judgment was not resjudicata of the question of the right of possession during the period of redemption.

The O'Brien case, supra, proceeded upon the basis of the two rules stated in the Brandon and the Federal Land Bank cases, respectively. It definitely appears from the opinion in the O'Brien case that, while the complaint in the mortgage foreclosure action did not tender the issue of possession during the period of redemption, yet the relators, who were the grantees of the mortgagors, appeared and interposed a general denial. To that extent, the situation was similar to that in the Brandon case, and the result might have been the same as in that case had it not been for the fact that the trial court, in the foreclosure action involved in the O'Brien case, not only expressly declined to pass upon the question of possession, but reserved that question for future adjudication.

Upon analysis of the Brandon and the Federal Land Bank cases, the O'Brien case drew the conclusion, and endeavored to lay down the rule, that if the issue of the right of possession during the period of redemption be tendered by the complaint, or if there be an answer which fails to tender that issue, the judgment is res judicata of that question. Conversely, if the complaint does not tender the issue and if the defendant does not answer, the judgment is not res judicata of the question of the right of possession during the period of redemption. That is the extent to which the opinion in the O'Brien case intended to go.

Unfortunately, however, in a subsequent paragraph, the opinion in that case used language which went further than was intended. I quote the language again:

"If the homestead has been created at a time prior to the entry of the decree of foreclosure, the question must be raised by the claimant in that action, if he be a party thereto [italics mine], or else the judgment will be res judicata of the matter in subsequent litigation."

Obviously, the phrase "if he be a party thereto" extends the rule theretofore declared beyond the limit intended, for, under that phraseology, the foreclosure action would be res judicata even in those cases where judgment had been taken by default and the complaint had failed to tender the issue of possession during the redemption period; in such a situation, the only requisite would be that the claimant be made a party defendant. Obviously, that result was not intended. The phrase "if he be a party thereto," appearing in the O'Brien case, should have read "if he appears and answers therein." Had the latter phrase been used, the quoted paragraph would have been in harmony with the preceding portion of the opinion, and the rule therein announced would have been consistent with our holdings in the Brandon and the Federal Land Bank cases, and would have expressed exactly the view which, in my opinion, has been the one taken by this court ever since the decision in the O'Brien case. That rule is in absolute accord with all our prior decisions and with the majority opinion in this case.