57 Wash. 487 | Wash. | 1910
This was an action to enforce the specific performance of a contract to convey real property. The
We have but little sympathy with appeals of this character. If the respondent was not in fact the owner of the property and could not perform his contract, the appellant had no right of action for specific performance. Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614. If, on the other hand, the respondent had title and was able to perform his contract, it was an easy matter to obviate the ruling of the court by amendment, whether the ruling was right or wrong. However, the appellant had a legal right to stand on his complaint, and if the complaint states a cause of action, the judgment must be reversed. Decisions on the question thus presented are few in number, for the reason, doubtless, that complaints in such actions almost invariably contain an allegation of ownership in the defendant, either at the time of the execution of the agreement to convey or at the time of the commencement of the action. In vol. 20 of the Ency. of Plead. & Prac., at page 451, the rule is thus stated:
“A bill to enforce the specific performance of a contract to sell to the complainant must aver the defendant’s ownership of the property at the time when the contract was made.”
This rule seems to be sustained by the authorities cited. See, also, Manton v. Ray, 18 R. I. 672, 29 Atl. 998, 49 Am. St. 811. Our own decisions assume that such an allegation is necessary. Hankie v. Denison, 34 Wash. 51, 74 Pac. 822; Newell v. Lamping, 45 Wash. 304, 88 Pac. 195.
The judgment of the court below is therefore affirmed.
Parker, Mount, Crow, and Dunbar, JJ., concur.
