64 Wash. 344 | Wash. | 1911
The plaintiffs brought this action to recover damages for the breach of covenant of the warranty in a deed. The case was tried to the court and a jury. The court granted a nonsuit upon defendant’s motion, and dismissed the action. Plaintiffs have appealed.
The following facts appear: In March, 1908, the plaintiffs desired to purchase from the defendant a certain tract of land. The terms of sale were agreed upon, and $20 earnest money was paid. The plaintiffs thereupon exam
In August or September, 1908, plaintiffs’ agent heard that some persons were removing the timber from the premises and, upon inquiry, learned that, after plaintiffs’ deed had been recorded, the timber had been removed from the land by some one acting under authority of a contract made between the defendant and one Osburn, by the terms of which contract defendant had sold to Osburn the timber on the land provided the same was removed within two years. This contract had been made on December 26, 1906, prior to the deed from defendant to plaintiffs. It had never been filed for record, and the plaintiffs had no notice or knowledge of the contract or the sale of the timber. When these facts appeared, the trial court dismissed the action for the reason that plaintiffs were in possession, and defendant was therefore not liable for parties trespassing upon the property.
The defendant argues that the plaintiffs, under the facts
It is apparent, we think, that the covenant in the deed was broken at the time the deed was delivered, because the grantor had already sold the timber, and by the deed to plaintiffs sold it again, and thereby authorized two different vendees to take possession of the property. Neither vendee was informed of the fact that the property was sold to another. It is true that the plaintiffs recorded their deed, which thereby became constructive notice to the first vendee, and as between the two vendees, made the unrecorded instrument of Osburn of no effect. But as between the parties to the first contract of sale of the timber, viz., the defendant and Osburn, the contract was valid. The plaintiffs in this action might no doubt have restrained the removal of the timber by Osburn had they known that the same was being or was about to be removed. Yet when the timber was removed by authority of the previous sale without notice to or
In the case of Lamb v. Willis, supra, the court said: “If after conveying to the plaintiff the defendant had sold the timber to Christ, the case would be different.” So in this case, if after conveying the land to the plaintiffs, the defendant had sold the timber to Osburn, the defendant would be liable to the plaintiffs for the damage done by Osburn in removing the timber, because in that case the act of the defendant would naturally produce the injury. Wall v. Osborn, 12 Wend. 39. In other words, the act of the defendant in selling- the same timber to two different persons, without informing either thereof, makes the defendant liable for the acts which naturally follow, because the act of Os-burn in removing the timber was authorized by the defendant and was in effect the act of defendant. It can make no difference in reason whether Osburn was authorized to do so by the defendant before or after the deed to the plaintiffs, when no notice was given of the fact. The defendant would have been liable to Osburn for the timber if Osburn had not received it through the defendant’s breach of his contract. Defendant is liable to the plaintiffs for a breach of contract for the same reason. Osburn got the timber by trespass, but the trespass and the taking of the timber were by authority of the defendant. We conclude, therefore, that the act of Osburn by authority of defendant was a breach of the warranty of the deed.
Dunbar, C. J., Parker, Fullerton, and Gose, JJ., concur.