9 Wash. 642 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— On April 8, 1889, the appellants signed, sealed, acknowledged and delivered the following contract:
‘ ‘ Know all men by these presents, that H. B. Bagley and K. M. Bagley, his wife, of Seattle, W. T., are held and firmly bound unto D. B. Ward, of Seattle, W. T., in the sum of ten thousand dollars, lawful money of the United States, to be paid to the said D. B. Ward, his executors, administrators, or assigns, for which payment well and truly to be made they bind themselves, their heirs, executors, and administrators firmly by these presents. Signed by them and dated the eighth day of April, one thousand eight hundred and eighty-nine. The condition of the above obligation is such that if the above bounden obligors shall, on or before three years from the date of these presents, make, execute and deliver unto the said D. B. Ward, or unto such persons as he may direct (provided that the said D. B. Ward, or his representatives shall,*643 on or before three years from the date of these presents, have paid unto the said obligors the sum of five thousand five hundred dollars, with interest in the following manner, and upon the following terms, one thousand dollars cash in hand paid, the receipt whereof is hereby acknowledged, one thousand five hundred dollars on or before six months from date, one thousand five hundred dollars on or before eighteen months from date, and one thousand five hundred dollars on or before thirty months from date with interest on all deferred payments at the rate of ten per cent, per annum until paid, the price by the said D. B. Ward agreed to be paid. And it is hereby agreed by and between the said obligors and the said D. B. Ward that whenever the said D. B. Ward or his l'epresentatives shall pay unto the said obligors a sum equal to forty dollars per acre, and shall demand it, he or they shall receive from the said obligors good and sufficient deeds of general warranty to any portion of the lands hereinafter described, provided said portion shall not be less than twenty acres in extent), good and sufficient deeds of general warranty to the whole of the following described piece or parcel of land, or to any portion or portions of the same of not less than twenty acres in extent, which said land is situate, lying, and being in the county of King, Territory of Washington, and bounded and particularly described as follows: Being the east one-half and the southwest one-fourth of the northeast one-fourth and the southeast one-fourth of the northwest one-fourth of section eight, in township twenty-six north, of range five east, then this obligation to be void, otherwise to remain in full force and virtue. ’ ’
The premises described in this instrument then consisted of wild, unimproved land; a portion thereof being covered with timber, and the balance being low or bottom land, with nothing but patches of brush upon it. It will be observed that the land described in this bond amounts to 160 acres. Six acres thereof, however, had been previously sold to other parties, and the appellants were therefore the owners of only 164 acres, but this deficiency was mutually adjusted by allowing the value of it, at $40 per acre, to be
At the time of making the contract, Ward made the first payment of $1,000 as therein specified. But before the second payment became due, and on July 29, 1889, he, for a valuable consideration, sold and assigned his interest in the contract to the respondent. The latter made payments to the appellants as follows: On October 18, 1889, the sum of $1,204, to which was added $240 for the deficiency of the six acres conveyed to other parties; on December 19, 1889, the sum of $600; on April 8, 1890, the sum of $245.91, claimed by appellants as being the amount of interest to date; and on September 11, 1890, the further sum of $100, also claimed as interest. No other payments have ever been made. On October 18, 1889, for and in consideration of $1,600, the appellants conveyed to the respondent 40 acres of the land included in the contract, and on June 17, 1890, another deed was given by appellants to the respondent, conveying ten acres of land in addition to the land already conveyed, correcting an error in the previous conveyance, and deducting therefrom the six acres before conveyed to other persons, making the whole amount of land conveyed by the appellants to the respondent 44 acres. The respondent built a house upon and cleared about ten acres of the land conveyed to him, but the balance remains in the same condition it was in at the time the agreement was executed. He also cut hay and pastured his cattle to some extent upon portions of the unconveyed land, but further than that he has done no acts tending to show possession of it or control over it. It will be seen that $3,149.91 has been paid upon the contract, and, as we have before said, 44 acres of land only have been conveyed by the appellants. The respondent claimed that by the terms of the agreement, and on account of pay
The complaint alleges the making of the contract, its assignment to the respondent, the payment thereon to the appellants of $3,389.91, and demands for deeds and refusal of appellants to convey in accordance therewith. The answer admits the making of the contract, the payment of $3,149.91, and failure to convey the land claimed by the respondent and described in the complaint. As an affirmative defense, it is alleged in the answer, among other things, that the sums of money paid to the appellants, amounting to $3,149.91, were paid upon said bond without specific direction as to the application thereof, and were applied by appellants in payment of accrued interest upon the bond according to its terms, and whatever amount remained in excess of interest was applied in part payment of the principal of the bond; that, the interest having been deducted, there was a balance of $2,300 to be applied upon the bond; that appellants conveyed to the respondent forty-four acres of land, which, at the price of $40 per acre, amounted to the sum of $1,760, which, being deducted fi'om said sum of $2,300, left a balance of $540 to be applied generally upon said bond towards payment of accruing interest, and for further conveyances; that said sum of $540 is insufficient to pay for twenty acres of land at the agreed price of $40 per acre, the least amount agreed in said bond to be conveyed; that the respondent had failed to keep and perform the terms and conditions of said bond or agreement by him to be kept and performed, and has been guilty of
The appellants allege that by the terms of the bond
It appears that the only reason given by the appellants for not conveying, at the time the deed of forty acres was made, land for the full amount then paid ($2,204), was that the first payment of $1,000 made by Ward was to be retained as a forfeit in case the contract should not be fully performed, and they still maintain that such was the fact. There is no such provision, however, in the contract, and to incorporate such a condition into it now would be to change its terms. And, even if such a clause had been expressly inserted therein, it was waived by accepting payments after the time fixed in the contract, and especially by applying a portion of it as a part of the consideration of $1,600 mentioned in the first deed.
All parties have heretofore acted under the second condition of the agreement, and we think the respondent ought still to be permitted to avail himself of it in this action, unless he has forfeited his rights under the contract. He has paid, and the appellants have received, sufficient money to entitle him to the conveyance decreed by the court. But appellants insist that he is not entitled to the relief granted, by reason of delay and failure to perform, or offer to perform, his part of the contract. We think the rule is well settled that where a party seeks the specific
Nor do we think that the respondent should not succeed in this action on the ground of laches. Payments were made from time to time by the respondent, and the appellants accepted payments before as well as after they were due, under the first condition or provision of the contract. Delay or laches, under the facts in this case, can therefore only relate to the question of demands for deeds. And there is evidence from which it might well be concluded that there was much less delay in demanding conveyances than is claimed by the appellants. While, as we have seen, no written demands for deeds were served on appellants until September, 1892, there is, nevertheless, testimony tending to show that an oral request was made and refused as early as September, 1890, at which time a payment was received by the appellants. And if that be true, under our construction of the agreement, the appellants have themselves been in default, in not conveying the amount of land paid for, and therefore have no reason to complain of mere laches on the part of the respondent. Mudgett v. Clay, 5 Wash. 110 (31 Pac. 424). In this instance, time
Dunbar, C. J., and Scott, J., concur.
Dissenting Opinion
(dissenting). — Did the instrument set out in the foregoing opinion constitute a single contract for the sale of the entire tract of land therein described, or did it include as many distinct contracts for the sale of separate parts of the entire tract as the purchaser saw fit to divide it into — each of not less than 20 acres? If the latter, the conclusions drawn therefrom by the majority of the court, as to the rights of the parties, can be sustained, for it would appear from the record that, as to a portion of these separate contracts, there had been a full performance by the purchaser and his assignee of the conditions on their part; and this being so they were, under the familiar rule of equity applicable to contracts for the purchase and sale of real estate, entitled to have specific performance decreed against the seller. If it constituted but a single contract for the sale and purchase of the entire tract, then the conclusions of the majority of the court seem to me to be unwarranted, for the reason that it clearly appears from the record that at the time when this suit was commenced the purchaser and his assignee were, and had for a long time been, in default as to many of the conditions of the contract on their part to be performed. In fact, it is not contended by counsel for respondent that he and his assignor were not in default as to the payment of large sums of money due under the terms of the contract. This being so, the respondent was not entitled to any relief, for the reason that he had not complied with a rule of equity of such universal application that it has become a maxim, to the effect that one who seeks equity must do equity. Not only is this rule one of general application to all suits in equity, but has, by the universal practice of such courts, become of special application in suits for the specific performance of contracts for the sale of real estate. The language of the courts in reference to such contracts is that one who seeks a specific performance must show that he
Stiles, J., concurs with Hoyt, J.