57 Wash. 320 | Wash. | 1910
This action is brought by appellant to recover from respondent possession of a strip of land in use as a private logging road, and to quiet appellant’s title thereto. Respondent alleged a contract for a ten-years’ lease, and asked specific performance of said contract. The judgment of the trial court was that the respondent do not have specific performance of the alleged contract, that neither party recover costs, and that the action of the plaintiff be dismissed. From the part of the judgment denying costs and dismissing his action, plaintiff appeals.
The record shows that the appellant is the owner in fee simple of the premises described in the complaint, and on March 3, 1906, entered into a written agreement with J. T. and R. J. Moylan, copartners doing business as Moylan Brothers, for the lease of a strip of land across the appellant’s premises for a logging road. This lease was reduced to writing, signed, and recorded, but was not acknowledged. Contemporaneously with this lease and on the same day, another and additional agreement was entered into between the parties, providing that, in addition to the rental of $15 per annum which was provided for in the first paper, the lessees should do certain work upon the farm or land of the lessor, that stumps should be pulled in a certain locality, logs pulled out of the river, and certain fences and bridges built. It was the evident intention that these two agreements should be construed together and constitute one lease. On October 1, the Moylan Brothers sold their right to this lease to the Tongue Point Company, and after notice to quit, the Tongue Point Company sold to the Hammond Lumber Company, respondent in this action.
The authorities are generally to the effect that, if the rental is paid in advance for the whole period agreed upon, even though the period is for more than a year, the lessee cannot be ejected until the expiration of the term paid for, on the principle that any other construction of the statute would aid in the perpetration rather than the prevention of fraud. While the process may seem a little involved and lacking in directness, it proceeds upon the theory that the party invoking the statute is really charged upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon
The respondent complains of the action of the court in not granting it a decree of specific performance, but the respondent has not appealed in this case, and we are not able to agree with its contention that, notwithstanding it has not appealed, this being a case which is heard de novo, this court will grant such a judgment as ought to have been granted by the court in the first instance; for the righting of wrongs is what an appeal is given for, and the respondent should not obtain a more favorable judgment here than it obtained below when it received it without objection. In
The judgment will therefore be affirmed.
Rudkin, C. J., Mount, Crow, and Parker, JJ., concur.