242 P. 375 | Wash. | 1926
These two cases in the superior court were consolidated for trial. The purpose of the action of *344 F.B. Pitcher and wife was to quiet title to certain real property. The active defendants in that action and the plaintiff in the other action claimed liens for either labor or material furnished and sought foreclosure of the same. The trial court entered a judgment quieting the title in the plaintiffs Pitcher and wife, and disallowed all lien claims. From this judgment, the defendants Walworth Manufacturing Company, a corporation, and A.F. Marvin appeal.
The facts are these: The respondents were the owners of a certain lot or lots in the city of Seattle upon which there was a small apartment house consisting of seven apartments. This property was acquired by the respondents in October, 1919, and the deed conveying it to them was duly and regularly recorded. On October 3, 1921, they entered into a contract for the sale of the property to John A. Berkland, the purchase price of which was $18,500. After the payments provided for at the time the contract was executed, there was a balance of the purchase price amounting to $6,486.14, which, together with interest, was to be paid in monthly installments of $135 on the 10th day of each and every month thereafter until both principal and interest had been fully paid. Berkland entered into possession of the property and made the payments provided for in the contract until March 30, 1923, when he sold and assigned the contract to one E. Ravven. The contract from the respondents to Berkland was duly recorded. The assignment was not recorded.
After the contract was assigned to Ravven, and about the first of May, 1923, he began making preparations for the improvement of the property by the adding of twelve additional apartments. The contract of the respondents to Berkland provided that, in the event of default of any of the payments, conditions *345 or covenants thereof, thirty days' notice in writing should be required before it could be forfeited. Ravven did not make the payments due on any of the subsequent dates promptly, and repeated notices of forfeiture were given, the last of which was on September 3, 1923, and in response to this the payment due on July 10 was paid. There were no subsequent payments.
One of the materialmen began to furnish material which went into the improvement undertaken by Ravven on or about August 26, 1923. The exact date when the other materialmen began to furnish supplies and when the labor began to be performed does not clearly appear. On or about November 1, Ravven abandoned the property, left the city, and thereafter had not been heard from prior to the trial. At the time he departed, the frame work of the improvement was up and roughed in. Subsequently, the respondents gave notice in writing that the contract was forfeited, and on or about the first of January, 1924, resumed possession of the property.
There is no provision in the contract from the respondents to Berkland authorizing any improvement to be made upon the property by the purchaser. During the time the improvements were being made by Ravven, the respondent F.B. Pitcher passed the property a number of times and knew what was going on. On one or two occasions he had some talk with Ravven. He neither approved nor disapproved of the improvements. The reason he gave was that he did not believe that he had any right to, though in his opinion the improvement undertaken was not such as the property was adapted to.
[1] The question is whether the respondents are estopped from resisting the lien claims. It is probably accurate to say that there is no decision in this state which holds that the owner who has sold property *346
under a contract similar to the one in this case is so estopped, when he has neither, in his contract, authorized the improvement nor said or done things which operate as an estoppel. InNorthwest Bridge Co. v. Tacoma Shipbuilding Co.,
In the present case, these facts do not appear. In Dahlman v.Thomas,
"Summing up these cases, they have relieved the landlord when he had profits but had not authorized improvements, and have relieved a vendor when he had authorized the improvements but had no interest in the profits. In the present case the owner has both features against him." *347
It is contended, however, that, since the respondent permitted Ravven to become in default in the payments, by reason of this fact he should be estopped from asserting that the liens do not attach. If effect should be given to this contention, it would mean that the vendor, at his peril, must immediately forfeit a contract in the case of default where the vendee has undertaken the improvement of the property, or make the fee interest in the property subject to the lien in the event that the contract should be subsequently forfeited. In the case of Bell v.Swalwell Land, L. T. Co.,
[2] Finally, it is contended that this case calls for the application of the rule that, where one of two innocent parties must suffer, the loss must fall upon the one who was the less innocent, and the case of Long v. McAvoy,
In the present case there are no facts which would justify the holding that the respondents were estopped from resisting the lien claims. Neither of them did *349 any act or made any statement upon which the lien claimants relied in furnishing material or labor. In fact, the lien claimants did not know that anyone had any interest in the property except Ravven, until after the material had been furnished and the labor performed, while, as already said, if they had consulted the record they would have learned the facts with reference to the title to the property.
The judgment will be affirmed.
TOLMAN, C.J., MITCHELL, PARKER, and MACKINTOSH, JJ., concur.