63 Wash. 115 | Wash. | 1911
Lead Opinion
The plaintiff commenced this action to recover from the defendant the purchase price of certain land in Walla Walla county, and the value of the improvements placed thereon by him, which land he went into the possession of under a .contract with the defendant for the purchase thereof. He claims the right to rescind the contract because
In the year 1905, appellant was organized as a corporation under the laws of this state, its declared obj ects, among others, being to acquire water and water rights for the purpose of irrigation and water power, and “particularly to appropriate water for irrigation and power from the Walla Walla river. . . .also to buy, sell, improve and deal in real property. In the year 1906, its president entered into a contract with the state of Washington for the purchase of a portion of section 16, township 7, N. R. 31 East. This land is near the town of Attalia and not far from the confluence of the Walla Walla and Columbia rivers, and is capable of irrigation from the Walla Walla river. The purchase price under this contract was payable in annual installments at the option of the purchaser, the last installment being due in 1915. While this contract was executed in the name of appellant’s president, he held the same in trust for appellant; so, for the purpose of our present inquiry, we will treat the contract as appellant’s property. It was thereafter assigned to appellant by its president, and thereafter a deed was issued for the land to appellant by the state of Washington. Appellant contemplated platting this land into small tracts to be called “Attalia five acre tracts,” and it was thereafter officially so platted, the plat being executed before the commencement of this action, and filed with the county auditor soon after the commencement of this action. A preliminary plat had been prepared for the purpose of selling the tracts, prior to November, 1908, and the land had been placed in the hands of the Attalia
On November 23, 1908, that company entered into a contract with respondent for the sale of lots 97 and 112 of the plat, which description corresponded with the N. E. % of the S. E. % of the S. E. % of section 16, containing ten-acres, excepting roads along the north and east lines thereof. While this contract was executed by the Attalia Development Company and respondent, we think it was in effect the contract of the appellant as well, as we will later see. This contract was upon a printed form adapted to a contract of sale wherein the payment of the purchase price is to be paid in installments, and contained a provision that, upon the completion of the payments, the company will furnish the purchaser an abstract of title to the land showing unencumbered and marketable title, and convey the same to him by warranty deed. The total purchase price under this contract was $8,500, and was paid in full by the conveyance of certain land in Minnesota belonging to respondent, so that he would be entitled to a deed for the land described in the contract immediately, if the language of the contract be taken literally. It is plain, however, from circumstances surrounding the transaction and the fact that the contract was then taken instead of a deed, that the company was to have a reasonable time to furnish the deed. It is also apparent that it was understood that such deed would not be furnished until some time in the spring of 1909, though no certain time was fixed. Respondent and his wife entered into possession of the land, which was then in a wild and uncultivated state,.and remained in possession until after the commencement of this action in September, 1909. During this period they cultivated the land, planted fruit trees,- and built a dwelling thereon. They also irrigated the land by water furnished in compliance with the contract.
Early in the summer of 1909 respondent made inquiry about getting his deed, when he was informed, in substance, that the company was not yet ready to give a deed. He there
“Interrogatory (6). Did the plaintiff, after paying the purchase price of said land or after transferring to said company his interest in said Minnesota land, demand of said company an abstract of title of said land and a deed thereof? If not, did he do so at any time, and if so, when? Answer— Demanded deed July 23 and August 7, 1909.”
“Interrogatory (19). Did the plaintiff, before the commencement of this action, notify the defendant, that, unless it furnished him a deed and abstract of title of said land, he would rescind his contract to purchase said land, and demand a return from it of the money paid by him to it, and payment of all damages by him sustained on account of its failure so to do ? If, so, when did he do that ? Answer — August 7, 1909, demanded deed or money.”
“Interrogatory (20). Did plaintiff afterward offer to deliver to defendant his contract with it for the purchase of said land and the possession of said land and declare to it that he then rescinded said contract and tender said contract to it? If so, when did he do that? Answer — Yes, on September 27, 1909.”
These interrogatories, and the answers made thereto by the jury, covered all the facts found upon the question of a de
“The defendant, since entering into said contract, has used diligence and all the diligence contemplated by the parties hereto towards perfecting its plat and title to said property, and has now perfected its plat and title to the said property, and can now convey to the said plaintiff a good fee simple title to the same free from all incumbrances, except those arising from the acts or omissions of the plaintiff; and the defendant herewith tenders to the plaintiff a warranty deed in due form conveying to the plaintiff such title, together with an abstract of title as provided in the contract between the parties.”
Appellant produced a deed for the land to respondent, and also an abstract showing the condition of the title to the land, at the trial, and there tendered them to the respondent, which tender was refused. These were left with the trial court for respondent, and have been sent here with the record for our inspection.
The first and principal question for our determination is, Was the contract effectually rescinded by the respondent prior to the commencement of this action in the superior court? Since the circumstances under which this contract was entered into plainly show that there was no specific time within the
In the case of Walters v. Miller, 10 Iowa 427, 429, the rule is stated as follows:
“In contracts for the sale of real estate, when the purchase money has been paid, but no deed executed, the purchaser will not be permitted to rescind the contract and recover back the purchase money, unless the vendor has been guilty of fraud in making the contract, or the vendor cannot or will not per*122 form on his part, or unless there has been a voluntary rescission of the contract without default on either side.
“To rescind a contract the law requires some positive act, by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and it then gives him a reasonable time to comply.”
In the case of Owen v. Pomona Land & Water Co., 131 Cal. 530, 63 Pac. 850, 64 Pac. 253, we find a situation not materially different from this case, in so far as the principle involved is concerned. While the contract in that case seemed to fix a specific time' for conveyance, the dealings between the parties thereafter showed that that part of the contract was waived, and therefore it became a question of reasonable time for performance. Touching the right of rescission under such circumstances, the court said:
“If therefore, the plaintiff had elected to rescind at that time, his right so to do would probably have been clear. But he did not elect to rescind at that time. Instead of rescinding, he accepted the promise of the defendant to cure the defect in its title, and rested upon it for two years and a half before taking any further action. For this, of course, he was in no wise" to blame. He had a right to accept and rely upon the promise of defendant to perfect its title, and in the meantime to hold his right of rescission in reserve, to be exercised when, after a reasonable opportunity so to do, the ''defendant had failed or refused to redeem its promise; for while it is true that the right to rescind must be exercised promptly and is lost by delay, it is equally true that it does not lie in the mouth of a delinquent party to object to a delay which has been granted at his instance in order to enable him to perform an agreement which he is unable to perform at the time stipulated. On the other hand, it seems to follow that when, in consequence of some promise of the delinquent party, rescission has been delayed beyond the proper time, the right to rescind will not be revived until a reasonable opportunity has been afforded for compliance with such promise, unless, it is by its terms to be performed within a certain time.”
See, also, 2 Warvelle, Vendors (2d ed.), § 868.
We think it clear from this record that respondent was
What has been said thus far would seem to entirely dispose of the'case, but counsel for both parties have submitted to us the question of whether or not the deed and abstract tendered by appellant to respondent during the trial is a compliance with the terms of the contract on the part of appellant. In view of appellant’s tender in his answer, the respondent’s attitude in the case indicating that he would not entertain any tender, and the actual production of the deed and abstract at the trial and leaving them with the court for respondent, we
“It being the intention hereby to mortgage all the existing property and property rights and privileges whatever belonging to and all those to be hereafter acquired by the first party, including all water rights and privileges.”
There was no need of releasing the mortgage lien from the lots except in so far as the title to those lots carried with it the water right. We think that was the purpose of that release. We realize that we cannot decide this question finally as against the mortgagee. We must nevertheless decide it upon the facts presented, and upon these facts we are of the opinion that the mortgage lien is by this release discharged as to the water rights going with these lots. Our attention is also directed to a mortgage for $150,000 upon lands and water rights of appellant executed in December, 1909, which it is claimed is a lien upon the water rights going with these
As we have seen, the objection to the title, as evidenced by the abstract, involves only the question of the hen of these mortgages upon the water rights going with the lots. This presents only a question of law to be determined by a construction of the release of the first mortgage, and the terms of the second. The jury’s finding is no guide to a proper decision of these questions. The evidence in this case clearly shows that the only possible right of rescission respondent could have would be because of appellant’s failure to furnish the deed and abstract before the commencement of the action. Respondent’s possession and enjoyment of the premises have, at no time since he first went into possession thereof, been in the least disturbed. There is some evidence tending to show that respondent had a desire to sell the premises, and that for that reason he wanted his paper title perfected. It does not appear, however, that he had any prospective sale in view which was interfered with by the possibility of his inability to give good title. The delay may have been a technical violation of respondent’s right, but the evidence does not show that it caused him any actual damage.
We cannot escape the conclusion that the learned trial court was in error in rendering its decision, and the same is therefore reversed.
Fullerton and Mount, JJ., concur.
Dissenting Opinion
(dissenting) — In view of the two demands for a deed and the unreasonable delay of the appellant in executing it, I think the respondent had a clear right in equity to rescind. I therefore dissent.
Dunbar, C. J., concurs with Gose, J.
