Large v. Shively , 194 Wash. 608 ( 1938 )

ON REHEARING. [En Banc. September 19, 1938.] The facts in this case are presented in the opinion of the Department of the court which first heard it. After the opinion was filed, a petition for rehearing was granted, and the case was reheard En Banc.

As we now view it, the controlling question is whether the present action and the issues presented therein have been rendered res adjudicata by virtue of an action instituted in November, 1933, in the superior court of Thurston county, cause No. 15289, by George E. Large v. A.C. Martin, commissioner of public lands, and the other members of the board of state land commissioners, Edna R. Shively, and certain other parties claiming an interest in the property in question.

The amended complaint in that case, admitted in evidence in the case at bar, recited, in part, that, to induce the plaintiff to make a loan, the vendors and vendees in the contract of sale, dated August 27, 1929, represented to the plaintiff that a certain dance hall, known as the "Blue Ox," was being constructed upon lot one, section one, township twenty-two north, range four, W.W.M., situated in Mason county; that the description included waterfront and land lying east of the Olympic highway and extending to the meander line and not upon the tidelands; that, relying upon these representations, the plaintiff was induced to make a loan to defendants October 13, 1929, secured by a mortgage upon the above described property; that, in August, 1933, George E. Large instituted an action in the superior court of Mason county against the vendors and vendees designated in the above mentioned contract of sale and certain other persons claiming an interest in the real property; and that, October 14, 1933, a decree was entered adjudging the mortgage to be a first and valid mortgage lien upon the real property referred to above.

It was further alleged that, September 12, 1932, the defendant Edna R. Shively had filed an application with the commissioner of public lands to purchase all of the second-class tidelands in front of the upland property hereinbefore mentioned; that the board of state land commissioners intended to and would, unless enjoined and restrained therefrom, permit the sale of such land together with the improvements thereon; that Edna R. Shively intended, unless restrained, to purchase that real property together with the improvements; and that, if the lands and improvements lying east of the Olympic highway are not a part of the real property mortgaged to plaintiff as representated by the defendants, plaintiff's mortgage should be a lien upon that portion of the improved real property lying east of the Olympic highway.

The defendants demurred to the amended complaint. The trial court sustained the demurrer and dismissed the action.

Upon appeal, Large v. Martin, 178 Wash. 619, 35 P.2d 68, we affirmed the superior court, stating the plaintiff had chosen the remedy of foreclosure of the mortgage and obtained a decree to his liking, providing only for foreclosure and sale, and that the sale of the state's second-class tidelands could not be denied because of anything alleged in the amended complaint.

The present action was instituted during March, 1935, in the superior court for Mason county, by George E. Large against Edna R. Shively, alleging that the defendant holds a contract dated December 18, 1934, for the purchase of certain second-class tidelands situated in Mason county; which tidelands adjoin the lands of plaintiff on the east, and that the exact boundary between the two tracts has become obscure and uncertain.

It was pleaded that, October 14, 1929, plaintiff was induced to make a loan to the defendant, Edna R. Shively, and the other parties to the contract of August, 1929, on the strength of the representation that the Blue Ox was being erected upon the property to be mortgaged and that the land described in the mortgage included the waterfront extending eastward to the meander line of Hood Canal; and if the boundary line of plaintiff's land is found to be westward of the meander line and so located as not to include the land upon which the improvements stand, that the defendant be estopped from claiming title to the land west of the meander line upon which the improvements stand; that the plaintiff be subrogated to the rights of the defendant as purchaser of such lands; or if such relief be denied, and it be found that the boundary line is such as to divide the improvements upon this land, then that the rights of the parties be decreed.

The defendant answered denying the allegations of the complaint, and alleged that the Thurston county action, cause No. 15289, is res adjudicata in this case.

In its reply, the plaintiff denied this allegation.

After the trial of the case, George E. Large, the original plaintiff, died, and the executors of his estate, Joseph G. Large and George Elwyn Large, were substituted as plaintiffs.

We will now consider whether cause No. 15289, Large v.Martin, supra, is res adjudicata with respect to issues presented in the case at bar.

[2] In Northern Pac. R. Co. v. Snohomish County, 101 Wash. 686,172 P. 878, we said:

"To make a judgment res judicata in a subsequent action there must be a concurrence of identity in four respects: (1) of subject-matter; (2) of cause of action; (3) of persons and parties; and (4) in the quality of the persons for or against whom the claim is made."

While there are more recitals in the pleadings in Large v.Martin, supra, than in the instant case, the same issues were raised and included therein as are set forth in the present case, namely, the disputed boundary line between the uplands and the tidelands, and the alleged false representations of the mortgagors, of whom the respondent was one, to the mortgagee, were presented to the court.

In each case, the title to the land between the meander line and the highway was in question.

Neither the fact that more individuals were named parties defendant in addition to the respondent, nor the fact that the opinion in Large v. Martin, supra, was filed on August 27, 1934, and that appellant did not acquire the certificate of purchase until October 27, 1934, preclude the previous judgment in cause No. 15289 from being res adjudicata. The purpose, scope, and result of Large v. Martin, supra, have been both pleaded and proved in the instant case, and since we are satisfied that the four essential elements of res adjudicata have been met here, we now hold cause No. 15289 is resadjudicata with respect to this action.

The boundary line controversy, together with the false representations in regard to the premises covered by the mortgage, were in fact presented in the previous case or could have or should have been completely litigated therein.

In Currier v. Perry, 181 Wash. 565, 44 P.2d 184, we observed:

"On the main question in this case, there is no uncertainty about the rule in this state. As early as Sayward v. Thayer,9 Wash. 22, 36 P. 966, 38 P. 137, it was stated:

"`The general doctrine is that the plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

"That rule has been steadfastly adhered to and followed in this state. Some of our cases so holding are, as follows: Acheyv. Creech, 21 Wash. 319, 58 P. 208; Spokane Valley Land Water Co. v. Jones Co., 53 Wash. 37, 101 P. 515; Loeper v.Loeper, 81 Wash. 454, 142 P. 1138; Woodland v. First NationalBank, 124 Wash. 360, 214 P. 630; Sprague v. Adams, 139 Wash. 510,247 P. 960, 47 A.L.R. 529; Munro v. Irwin, 163 Wash. 452,1 P.2d 329; Cascade Lumber Co. v. Hargis, 167 Wash. 409,9 P.2d 366; Globe Construction Co. v. Yost, 173 Wash. 528,23 P.2d 895. In the last case, it was taken for granted that the rule is so well understood in this state that it was referred to in the terse, yet comprehensive language, as follows:

"`The matter in controversy here was included within the matter in controversy there. It either was, or else could have been, adjudicated in the former action. That judgment, therefore, became res judicata of the issues and matters here presented.'"

We have adhered to this rule in Baxter v. Central WestCasualty Co., 186 Wash. 459, 59 P.2d 835.

The judgment is affirmed on appeal of the plaintiffs and reversed on cross-appeal of the defendant.

ALL CONCUR.