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Schutz v. Schutz

The Supreme Court of Washington. Department Two
Aug 11, 1960
56 Wn. 2d 969 (Wash. 1960)

Opinion

No. 35184.

August 11, 1960.

Appeal from a judgment of the Superior Court for Benton county, No. 15937, Orris L. Hamilton, J., entered February 11, 1959, upon findings in favor of the plaintiff, in an action to quiet title to a tract of land, and recover personal property and money. Affirmed.

Chaffee Aiken, for appellants.

Horton Wilkins, for respondent.


Reported in 354 P.2d 694.


Respondent George Schutz sued appellants, his son and daughter-in-law, to quiet his title to a tract of land, and to recover personal property and money.

Over a period of seven years from 1951, various sums of money were transferred from the father to the son; likewise, various sums were transferred from the son to the father. The father alleged that certain items of personalty were loaned by him to his son, but the trial court held that, excepting an oil heater and recapped truck tires, the burden of proof as to such items was not sustained.

On October 26, 1954, the father deeded real property to his son. It is undisputed that no money was paid. Respondent continued to live on the land. He contends that the property was deeded to his son to hold for him and to be returned upon request. The son refused to return the property or balance the money accounts. Whereupon, respondent sued. The trial court treated the matter as an accounting with respect to the money, and, on substantial evidence, decided that the son had received $780.67 more than he had given, for which amount the father recovered judgment. The court decreed the release of the lien of the son against a pickup truck and a trailer owned by the father, and quieted the father's title to the real property.

Appellants make ten assignments of error which reduce into three arguments. We treat them in order.

"1. Respondent defrauded the State of Washington, the United States and the public in his application for, and in the annual reports later made, to secure and under which he secured Old Age Assistance to the extent of $4222.90, under the admitted facts in this case, and he does not come into Court with clean hands in connection with the property in controversy."

Therefore, appellants contend, the court should not grant respondent the relief requested.

The facts are otherwise, however. Respondent began receiving assistance regularly in June, 1955. The Benton-Franklin counties welfare director for the state department of public assistance testified, without contradiction, that respondent had advised the department of the moneys he had received from various sources, and that the sole property which respondent did not declare, the land here involved, was immaterial to respondent's eligibility for old age assistance. The sole possible falsification was with respect to rent respondent claimed he was paying appellants, but the rent had no bearing on respondent's eligibility for assistance, which rental allowance the department terminated in January, 1958. Certainly, the possible falsification as to rental payments had no relevance to the transfer of the property, and is not controlling. If the property were transferred to attain eligibility in violation of law, the matter would be different. But such is not this case.

The trial court made no finding of illegality on the facts before it, and could not properly have done so. The court correctly left that problem to investigation and determination by the welfare department.

Appellants' contention that the property transfer was for the purpose of defrauding the government has no basis in the record, and was correctly rejected by the trial court.

"2. Respondent pitched his amended complaint upon the theory that he conveyed the real estate in question to defendants to be held in trust but failed to introduce or offer any testimony, either oral or in writing, that an express trust was created."

The trial court did not decide the dispute on the theory of an express trust. There was substantial evidence, admitted without objection, to support other theories. The pleadings are amended to conform to the proofs. Krenov v. West Coast Life Ins. Co., 48 Wn.2d 180, 292 P.2d 209. There was evidence that the property was transferred to appellants as security for past or future advances to respondent father. It was further found that there was no consideration paid for the deed. The evidence supported the court's theory of an equitable mortgage or a constructive trust.

"3. Respondents made a gift to appellants of the real property described in (Ex. 4.), the pickup truck, the $1,500.00 check bail money (Ex. 11.), and the $1,372.44 insurance check."

The trial court considered this contention, and, on substantial evidence, specifically found to the contrary. We do not retry such disputes. Zvolis v. Condos, ante p. 275, 352 P.2d 809; Thorndike v. Hesperian Orchards, 54 Wn.2d 570, 343 P.2d 183; Kelly v. Kelly, 55 Wn.2d 494, 348 P.2d 652; Stewart v. Smith, 55 Wn.2d 563, 348 P.2d 970.

Affirmed.

WEAVER, C.J., HILL, FINLEY, and ROSELLINI, JJ., concur.

REPORTER'S NOTE

By order of the Supreme Court dated December 13, 1957, the reporter was directed not to publish any opinion of the Supreme Court in bound volumes of the Washington Reports while a petition for rehearing is pending, and until after the final determination if a rehearing is granted.

Pursuant to the above order, the opinions in the following cases, which were published in Vol. 156 of the Washington Decisions, have been withheld from publication in the current volume:

No. 35204 State v. Anacortes Veneer, Inc.

No. 35294 Hydraulic Supply Manufacturing Company v. Mardesich

No. C.D. 4687 In re Sherman, Jr.

Nos. 35257, State ex rel. Railway Express Agency, Inc. v. 35258 Washington PUblic Service Commission

No. 35329 Miller v. Staton

No. 34869 Wilson v. Pearce

No. 35304 Standard Oil Company of California v. State

No. 35285 Alway v. Carson Lumber Company

No. C.D. 4972 In re Brooks

No. 35319 Johnson Service Company v. Roush

No. 35310 Lucas Flour Company v. Local 174, Teamsters, Chauffeurs Helpers of America


Summaries of

Schutz v. Schutz

The Supreme Court of Washington. Department Two
Aug 11, 1960
56 Wn. 2d 969 (Wash. 1960)
Case details for

Schutz v. Schutz

Case Details

Full title:GEORGE G. SCHUTZ, Respondent, v. JOE SCHUTZ et al., Appellants

Court:The Supreme Court of Washington. Department Two

Date published: Aug 11, 1960

Citations

56 Wn. 2d 969 (Wash. 1960)
56 Wash. 2d 969
354 P.2d 694

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