Main, J.
In the second amended complaint in this case, which will be referred to as the complaint, there are two causes of action, separately stated. In one, the plaintiff seeks to quiet title to an undivided one-half of certain real property in the town of Kirkland,
in King county. In the other, she seeks an accounting for the rents, issues, and profits of the property. The defendant, in his answer, denied the right of plaintiff to recover upon either cause of action, and affirmatively pleaded the statute of limitations and laches. The trial resulted in findings of fact from which the court concluded that the plaintiff was not entitled to recover upon either cause of action, and that the defendant should have a decree quieting his title to the property. From the decree entered in accordance with the findings and conclusions, the plaintiff appealed.
The facts essential to be stated are these: The appellant, Florence Hughes Lavigne, and the respondent, Mervin G. Hughes, were married August 6, 1911, and, as the result of this marriage, one child was born, a son. In 1923, the parties were divorced. The interlocutory decree was entered July 26th of that year, and the final decree, May 23, 1927.
In the findings of fact, as entered, when the interlocutory decree was entered, it was found that the parties were the owners of certain real property, described therein, in which the property now in controversy was included. It was also found that the real property was encumbered by mortgages and contracts, subject to certain claims and liabilities; and, in order that the same might be preserved as a valuable asset, it would require the attention and management of the husband. There was the further finding that the value of the property, above all Labilities, claims, and encumbrances, was the sum of four thousand dollars.
In the conclusions of law, it was provided that the property rights of the parties, the custody of the child, who was then eight years of age, and provisions for the support and maintenance of the child, as embodied in a certain agreement entered into between the parties July 19, 1923, “should be incorporated in the decree
of divorce and in the interlocutory decree herein.” That agreement, as found by the trial court in this case, covered the matter of the custody of the child, alimony for his support, the creation of a trust fund as a contribution towards his college education, and that, when the trust fund was created, as provided in the agreement, the appellant should transfer her interest in the property to the respondent. It was provided that the respondent would pay to the appellant, for a period of ten years, fifty dollars per month for the support and maintenance of the child, and that he would create a trust fund in the sum of two thousand dollars.
Of this trust fund, the First National Bank subsequently became the trustee, and, after the divorce, five hundred dollars was paid therein. The agreement was that five hundred dollars should be paid each year for four successive years. No further sums were paid into the fund.
In 1928, the respondent having been delinquent in the payment of the alimony for the support of the child, the appellant subsequently drew out the trust fund and applied it on the delinquent alimony, which, under the agreement, she had a right to do.
In the findings in this case, it was said that, at the time of the divorce action, the legal title to the property of the parties was vested in a corporation; but, notwithstanding this, the actual and equitable title to the property, together with the improvements thereon, was vested in the parties as a marital community. It was also said that the legal title to the property was vested in the corporation for the convenience of the parties. Subsequently, the legal title was transferred by the corporation to the respondent, and the corporation has since been dissolved.
The appellant at no time executed or delivered a deed to the property, as it was provided that she
should when the trust was created; that is, “as and when the defendant [respondent] should have deposited therein the sum of $2,000 at the times and in the mariner” provided in the written agreement. The present action was begun August 9, 1929, and was not brought on to trial until sometime during the year 1938.
The first question is whether the appellant in this case had a right to have her title quieted to one-half of the real property which the parties owned at the time of the divorce.
Under the provisions of Rem. Rev. Stat., § 988 [P. C. § 7507], the interlocutory decree in a divorce case should dispose of the property rights of the parties, and such a decree is final, subject to the right of appeal.
Brown v. Brown,
192 Wash. 333, 73 P. (2d) 795.
If it is not disposed of in the interlocutory decree, the title to the community property vests in the former owners of the property as tenants in common.
Ambrose v. Moore,
46 Wash. 463, 90 Pac. 588, 11 L. R. A. (N. S.) 103;
Graves v. Graves,
48 Wash. 664, 94 Pac. 481;
Harvey v. Pocock,
92 Wash. 625, 159 Pac. 771.
Inquiry must, then, be directed as to whether the interlocutory decree operated to transfer all of appellant’s interest in the community property to respondent. The agreement, as already indicated, provided that the appellant should deliver a deed or deeds to the property to the trustee named for the benefit of the respondent, when the trust provided for should be created by having deposited therein the sum of two thousand dollars. The two thousand dollars was never deposited, and the condition upon which the transfer was to be made was never performed. The agreement, by its terms, as found by the trial court, did not operate to transfer the title.
Even though the period of time is long since
the interlocutory decree of divorce was entered and a considerable number of years expired before the action was brought to trial, we find no basis, so far as the real property is concerned, for holding that the statute of limitations had run, or that the doctrine of laches was applicable.
There are no facts found, and the evidence does not support any, which would justify a conclusion that the respondent had acquired title by adverse possession, and we do not understand that it is contended that he did.
As to laches, assuming, without so deciding, that laches would operate to deprive the appellant from asserting her title to one-half of the real property, short of the running of the statute of limitations, we find no basis for applying that doctrine in this case. To constitute laches, not only must there have been delay in the assertion of the claim of title, but “some change of condition must have occurred which would make it inequitable to enforce the claim.”
State ex rel. Kubel v. Plummer,
130 Wash. 135, 226 Pac. 273;
Auve v. Wenzlaff,
162 Wash. 368, 298 Pac. 686;
State ex rel. Hearty v. Mullin,
198 Wash. 99, 87 P. (2d) 280.
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Main, J.
In the second amended complaint in this case, which will be referred to as the complaint, there are two causes of action, separately stated. In one, the plaintiff seeks to quiet title to an undivided one-half of certain real property in the town of Kirkland,
in King county. In the other, she seeks an accounting for the rents, issues, and profits of the property. The defendant, in his answer, denied the right of plaintiff to recover upon either cause of action, and affirmatively pleaded the statute of limitations and laches. The trial resulted in findings of fact from which the court concluded that the plaintiff was not entitled to recover upon either cause of action, and that the defendant should have a decree quieting his title to the property. From the decree entered in accordance with the findings and conclusions, the plaintiff appealed.
The facts essential to be stated are these: The appellant, Florence Hughes Lavigne, and the respondent, Mervin G. Hughes, were married August 6, 1911, and, as the result of this marriage, one child was born, a son. In 1923, the parties were divorced. The interlocutory decree was entered July 26th of that year, and the final decree, May 23, 1927.
In the findings of fact, as entered, when the interlocutory decree was entered, it was found that the parties were the owners of certain real property, described therein, in which the property now in controversy was included. It was also found that the real property was encumbered by mortgages and contracts, subject to certain claims and liabilities; and, in order that the same might be preserved as a valuable asset, it would require the attention and management of the husband. There was the further finding that the value of the property, above all Labilities, claims, and encumbrances, was the sum of four thousand dollars.
In the conclusions of law, it was provided that the property rights of the parties, the custody of the child, who was then eight years of age, and provisions for the support and maintenance of the child, as embodied in a certain agreement entered into between the parties July 19, 1923, “should be incorporated in the decree
of divorce and in the interlocutory decree herein.” That agreement, as found by the trial court in this case, covered the matter of the custody of the child, alimony for his support, the creation of a trust fund as a contribution towards his college education, and that, when the trust fund was created, as provided in the agreement, the appellant should transfer her interest in the property to the respondent. It was provided that the respondent would pay to the appellant, for a period of ten years, fifty dollars per month for the support and maintenance of the child, and that he would create a trust fund in the sum of two thousand dollars.
Of this trust fund, the First National Bank subsequently became the trustee, and, after the divorce, five hundred dollars was paid therein. The agreement was that five hundred dollars should be paid each year for four successive years. No further sums were paid into the fund.
In 1928, the respondent having been delinquent in the payment of the alimony for the support of the child, the appellant subsequently drew out the trust fund and applied it on the delinquent alimony, which, under the agreement, she had a right to do.
In the findings in this case, it was said that, at the time of the divorce action, the legal title to the property of the parties was vested in a corporation; but, notwithstanding this, the actual and equitable title to the property, together with the improvements thereon, was vested in the parties as a marital community. It was also said that the legal title to the property was vested in the corporation for the convenience of the parties. Subsequently, the legal title was transferred by the corporation to the respondent, and the corporation has since been dissolved.
The appellant at no time executed or delivered a deed to the property, as it was provided that she
should when the trust was created; that is, “as and when the defendant [respondent] should have deposited therein the sum of $2,000 at the times and in the mariner” provided in the written agreement. The present action was begun August 9, 1929, and was not brought on to trial until sometime during the year 1938.
The first question is whether the appellant in this case had a right to have her title quieted to one-half of the real property which the parties owned at the time of the divorce.
Under the provisions of Rem. Rev. Stat., § 988 [P. C. § 7507], the interlocutory decree in a divorce case should dispose of the property rights of the parties, and such a decree is final, subject to the right of appeal.
Brown v. Brown,
192 Wash. 333, 73 P. (2d) 795.
If it is not disposed of in the interlocutory decree, the title to the community property vests in the former owners of the property as tenants in common.
Ambrose v. Moore,
46 Wash. 463, 90 Pac. 588, 11 L. R. A. (N. S.) 103;
Graves v. Graves,
48 Wash. 664, 94 Pac. 481;
Harvey v. Pocock,
92 Wash. 625, 159 Pac. 771.
Inquiry must, then, be directed as to whether the interlocutory decree operated to transfer all of appellant’s interest in the community property to respondent. The agreement, as already indicated, provided that the appellant should deliver a deed or deeds to the property to the trustee named for the benefit of the respondent, when the trust provided for should be created by having deposited therein the sum of two thousand dollars. The two thousand dollars was never deposited, and the condition upon which the transfer was to be made was never performed. The agreement, by its terms, as found by the trial court, did not operate to transfer the title.
Even though the period of time is long since
the interlocutory decree of divorce was entered and a considerable number of years expired before the action was brought to trial, we find no basis, so far as the real property is concerned, for holding that the statute of limitations had run, or that the doctrine of laches was applicable.
There are no facts found, and the evidence does not support any, which would justify a conclusion that the respondent had acquired title by adverse possession, and we do not understand that it is contended that he did.
As to laches, assuming, without so deciding, that laches would operate to deprive the appellant from asserting her title to one-half of the real property, short of the running of the statute of limitations, we find no basis for applying that doctrine in this case. To constitute laches, not only must there have been delay in the assertion of the claim of title, but “some change of condition must have occurred which would make it inequitable to enforce the claim.”
State ex rel. Kubel v. Plummer,
130 Wash. 135, 226 Pac. 273;
Auve v. Wenzlaff,
162 Wash. 368, 298 Pac. 686;
State ex rel. Hearty v. Mullin,
198 Wash. 99, 87 P. (2d) 280.
There is nothing in this case which would make it inequitable to sustain the appellant’s title to one-half the property, which consisted of town lots upon which a garage had been erected. Since the divorce action, the respondent has been in possession of the property and received as gross income the sum of $14,270. He has expended for necessary upkeep and taxes the sum of $9,474, which left a net income, exclusive of depreciation, if any there was, in the sum of $4,076.
As to the income from the property subsequent to the divorce, the appellant is precluded from having an accounting therefor by reason of the doctrine of laches, and this, without reference to the statute of
limitations. There had not only been long delay in asserting the claim, but there had been a change of condition, so far as the rents and profits were concerned, which would make the enforcement of the claim inequitable.
There is a contention that it would be unconscionable to permit the appellant to have her title quieted in one-half of the real property. But we are not impressed by this contention. While the respondent, in his answer, pleaded the statute of limitations and laches, he did not, directly, attack the interlocutory decree, and the objection to the enforcement of the provisions of that decree now becomes a collateral attack.
Hilleware v. Hilleware,
104 Wash. 361, 176 Pac. 330;
Fullington v. Fullington,
106 Wash. 239, 179 Pac. 843.
By the agreement, which became a part of the interlocutory decree of divorce, as stated in the findings in this case, the respondent was to pay the appellant fifty dollars a month, over a period of ten years, for the support and maintenance of the child, which would amount to the sum of six thousand dollars. He was also to pay into the trust fund the sum of two thousand dollars, or a total of eight thousand dollars. The total amount paid by him, including the five hundred dollars which was paid into the trust fund and subsequently withdrawn, as indicated, was the sum of five thousand dollars. It thus appears that he paid three thousand dollars less than the agreement and the interlocutory decree provided that he should. During all the years since the divorce, he has had the possession of the property and the benefits of its earnings, the net amount of which was as above indicated. Under these facts, we are unable to see that there is anything inequitable or unconscionable in enforcing the interlocutory decree.
The appellant was entitled to have her title quieted to one-half the real property involved, and she was not entitled to an -accounting for the rents and profits. The respondent was not entitled to have the title to the appellant’s half of the property quieted in himself, but he was entitled to retain the rents and profits thereof.
The judgment will be reversed, and the cause remanded with direction to the superior court to enter a decree as herein indicated.
Blake, C. J., Geraghty, and Jeffers, JJ., concur.