43 Wash. 588 | Wash. | 1906
On June 1st, 1898, the respondent, being then in possession of certain real property situated in the city of Spokane, entered into a written contract with the appellant, Flarl J. Cook, by the terms of which she agreed to sell him the property on conditions specifically set forth in the writing. The respondent at that time held possession under a sheriff’s certificate of sale issued on a 'purported foreclosure of a mortgage, which she theretofore held upon the property. The foreclosure and sale were at that time known to be defective by both Hie respondent and Ooiok, and it was contemplated that further proceedings in court would be required in order to perfect the title. It was known, also, that the
■ Cook entered into' possession after the. execution of the agreement and proceeded at once to perfect title by further foreclosure proceedings. These proceedings were without results, the judgment obtained in the court below being reversed by this court on the ground that it was a nullity. In the meantime Cook had paid some $950 in monthly installments, and had expended some $750 in imiptrovements on the property. After the adverse, result of the foreclosure proceeding, Cook refused to proceed further under his contract with the appellant, but made an agreement with the adverse claimants by which he agreed to purchase the property of them, and in the meantime attorned to them for the rents. The respondent thereupon took upon herself the obligation of perfecting her title, and through her own counsel obtained another and valid foreclosure of her mortgage, under a judgment in which she became entitled to possession. In the meantime Cook had let the taxes become delinquent, and certificates of delinquency had been issued' therefor, on which the holder threatened foreclosure. These the respondent was forced to redeem, paying therefor the sum of $738.92; and since that time she has been compelled to piay as taxes the further sum of $259.08 which Cook neglected and refused to pay. After the re
The first part of the. briefs of counsel are taken up with a discussion of the question whether or not Cook was obligated by the contract to assume the burden of the. final foreclosure action, but we think that their position on this point may be conceded, and still Cook be not entitled to recover. It is plain he has not complied with those provisions of the contract over which there was no dispute. Even if he did not think himself bound to bear the burden of a foreclosure of the mortgage, he was bound to pay the monthly installments and the -taxes as long, at least, as he was permitted to remain in possession. He cannot claim that the unsettled condition of the title excused him from making these payments, because he understood when he entered into the contract that the title was unsettled, and that further proceedings were necessary to perfect it. Indeed the contract was made with express reference to these conditions. It is doubtless true that he did not forfeit his rights with the respondent by the mere fact that he entered into a contract with the adverse claimants and attorned to them. He oo-uld, of course, lawfully make as many contracts of purchase as he felt were necessary to procure a valid title. But if he expected to rely on bis contract with the respondent he was bound to perform the conditions of that contract in so far as its conditions were
Mount, O. J., Root, Hadley, Rudkin, and Dunbar, JJ., concur.
Crow, J., having been of counsel, took no. part.