Damon v. Ryan, 74 Wash. 138

74 Wash. 138 | Wash. | 1913

Ellis, J.

— This is an action to determine the right to money paid into the registry of the court by the city of Seattle for the right to damage certain lots by a regrade of the streets upon which they abut. Prior to January 5, 1911, the plaintiff was the owner of an undivided one-half of the lots in question as his separate property. On that date his wife, Lillie A. Damon, procured a decree of divorce and a judgment for $7,500 alimony against him. The decree made this sum payable in installments, declared it a lien upon his interest in these lots, and provided that, on his failure to meet any installment when due, the whole sum should become due and enforceable. He failed to make payment of alimony, and on April 12, 1911, execution therefor was levied upon this property. The plaintiff’s interest in these lots was, at the sale on execution, purchased by Lillie A. Damon, to whom a certificate of purchase issued on May 27, 1911, in full satisfaction of her claim for alimony. On June 30, 1911, she assigned an undivided one-half interest in this certificate to the defendant John E. Ryan. Plaintiff failing to redeem, a sheriff’s deed was issued to the defendants Lillie A. Damon and John E. Ryan, conveying an undivided one-half interest in the lots. Prior to the divorce decree, the city had instituted condemnation proceedings to acquire the right to damage this property by regrading certain adjacent streets. The verdict awarding $1,247.30 for this right was entered in the condemnation suit on May 25, 1911, just two days prior to the issuance of the certificate of purchase on the execution sale to Mrs. Damon. On July 25, 1911, a formal judgment of condemnation on the verdict was signed by the court, filed and entered in the condemnation proceeding, and the amount of the award paid by the city into the registry of the court. The trial court held that the plaintiff, John L. Damon, was entitled to this money. The defendants, John E. Ryan and wife, have appealed.

Our decision in the recent case in In re Twelfth Avenue South, ante p. 132, 132 Pac. 868, is decisive of this case. We there said:

“Where the conveyance of the land pending condemnation is by deed, without reservation, the only certain and just rule is that the money to be paid for the right to take or damage the property shall be paid to the person or persons owning the property or having an interest therein at the time when the condemnation has reached that point of completion where it is not subject to abandonment and when the right to the compensation becomes an enforceable demand against the condemner.”

As there pointed out, that stage is reached only at the expiration of sixty days from the entry of the last judgment in the condemnation proceeding, unless compensation be sooner paid into court. North Coast R. Co. v. Gentry, 73 Wash. 188, 131 Pac. 856; Spokane v. Cowles, 67 Wash. 539, 121 Pac. 463; State ex rel. Murray v. Herdlick, 73 Wash. 301, 131 Pac. 1139; State ex rel. Donofrio v. Humes, 34 Wash. 347, 75 Pac. 348; Silverstone v. Harn, 66 Wash. 440, 120 Pac. 109; Price v. Engelking, 58 Ill. App. 547; Chandler v. Morey, 195 Ill. 596, 63 N. E. 512; Chicago v. Barbian, 80 Ill. 482; Schreiber v. Chicago E. R. Co., 115 Ill. 340, 3 N. E. 427; Meginnis v. Nunamaker, 64 Pa. St. 374; Howley v. Pittsburg, 204 Pa. St. 428, 54 Atl. 347; Carli v. Stillwater # St. Paul R. Co., 16 Minn. 260; Magee v. Brooklyn, 144 N. Y. 265, 39 N. E. 87; In re Hamilton Street, 144 App. Div. 702, 129 N. Y. Supp. 317; Roberts v. Northern Pac. R. Co., 158 U. S. 1; Virginia-Carolina R. Co. v. Booker, 99 Va. 633, 39 S. E. 591; Obst v. Covell, 93 Minn. 30, 100 N. W. 650; Kiebler v. Holmes, 58 Mo. App. 119; Clark v. Meyerdirck, 107 Md. 63, 68 Atl. 141; In re Baird, 22 N. Y. Supp. 1021.

While the point is not material, in view of our conclusion, we hold that the clerk’s entry of judgment in his minutes on the verdict is not the final judgment. It is lacking in many of the elements of a final judgment of appropriation. The facts in Wagner v. Northern Life Ins. Co., 70 Wash. 210, 126 Pac. 434, are wide of a parallel.

It is manifest that, if the city had abandoned the condemnation proceedings within the sixty days after judgment, Mrs. Damon and the appellants would have taken the property undamaged. When the money was paid into court, the right to damage the property for the first time attached, and the right to the compensation for the first time became a vested, personal right. The proceeding for condemnation being in rem, the right to the compensation vested in the then owner of the property. No assignment of this claim was necessary or proper, since no personal right had prior to that time arisen. 2 Lewis, Eminent Domain (3d ed.), § 895. As indicated in the opinion in In re Twelfth Avenue, supra, the decision in In re Seattle, 26 Wash. 602, 67 Pac. 250, does not militate against the view here expressed. There the property had been physically damaged by an actual performance of the work of changing the street grade prior to any suit for condemnation, and prior to the purchase of the property at the foreclosure sale by the mortgagee. The right to damages for the change of grade had already vested in the mortgagor as a personal right by the actual damaging of the property while it was his. The mortgagee bid in the property m its damaged condition in full satisfaction of his mortgage debt. The distinction from the case before us is plain.

“A purchaser at judicial sale before the property is taken, who receives a deed afterwards, is to be regarded as owner from the day of sale and is entitled to the compensation.” £ Lewis, Eminent Domain (3d ed.), § 895.

The appellants are clearly entitled to one-half of the award for damaging these lots.

The judgment, so far as it relates to the sum of $311.8£ claimed by the appellants John E. Ryan and wife, is reversed, and the cause is remanded with direction to modify the judgment in accordance with this opinion. The appellants may recover their costs.

Crow, C. J., Main, Eullerton,- and Morris, JJ., concur.