120 Wash. 446 | Wash. | 1922
—The controversy in this case was before this court in Nudd v. Rowe, 111 Wash. 322, 190 Pac. 902 and reference is made to that case for a full statement of the facts up to that time. As the facts there stated
Appellants contend, first, that as they alleged the property to be worth $40,000 and respondent did not deny this valuation in his answer, he should be held personally liable for the difference between this sum and the advances. The failure to deny this allegation appears to have been an oversight; the report of the referee shows quite clearly that it has no such value. As the complaint was not predicated upon the theory now advanced, we do not think that respondent should be held for his oversight in failing to deny this allega- . tion.
It was further contended by appellant that, as we suggested in our former opinion that relief might be afforded the appellants under a judicial sale and stated that respondent could not at that time ask for such relief, the trial court was not justified in adopting it at this time. We do not think this necessarily follows. Considerable more time has elapsed and the situation is growing worse instead of better, as the liabilities are increasing and the contract has become impossible of performance. Appellants sued to terminate the contract and, as we now view the situation, the action of the trial court was the most practical way of terminating it.
As this is a proceeding in equity, we have concluded to modify the judgment of the trial court by permitting the appellants to redeem from the sale at any time prior to January 1,1923, upon repaying the sums found due by the trial court for advances made by respondent in the sum of $3,465.75, as-of September 12, 1921, and
Parker, C. J., Main, Holcomb, and Mackintosh, JJ., concur.