Budlong v. Budlong

Citations

• 31 Wash. 228
• 71 P. 751
• 1903 Wash. LEXIS 612

Syllabus

<p>LANDLORD AND TENANT-ESTABLISHMENT OF RELATION —CONTRACT OF DIVORCED HUSBAND AND WIFE-CONSTRUCTION-MATERIALITY OF EVIDENCE.</p> <p>A husband and wife were divorced and certain real property was conveyed to the husband by the wife, under a written agreement that she should have the right to live there free of rent until her death, remarriage, or a tona fide sale of the property by the husband, in which latter event she was to be secured for the payment by him of the monthly value of the premises. The husband remarried and made a conveyance of the premises to his second wife, agreeing to pay the former wife, but without giving security therefor, the monthly value thereof if she would surrender possession, which was done by her, but, on failure to pay her the value of the monthly rental, she brought an action against her former husband and his present wife on the theory that plaintiff had a life estate in the premises, that defendants were occupying it as her tenants, and had failed to pay the monthly rental agreed upon. The defendants sought to show that plaintiff’s conduct on leaving was inconsistent with her theory of an interest in the property. Held, that evidence to that effect was properly excluded, as plaintiff’s relations to the property should he determined by the terms of the written agreement, unless subsequently modified.</p> <p>SAME-WAIVER OF RELATION.</p> <p>Under an agreement that plaintiff held an estate in property which could be terminated only by death or marriage, or by a bona fide sale by the holder of the fee, with the rental value perpetually secured to her as long as she remained alive and unmarried, the yielding by her of possession to the holder of the fee and his wife, in consideration of the payment of a monthly sum, would not be inconsistent with her estate, where no provision was m'ade for securing to her the monthly payments and these were merely treated by her as a rent charge; nor would the fact that such monthly payments to her were