Anderson v. Carrigan, 5691

• Decision Date: 20 April 1931
• Docket Number: 5691
• Citation: 298 P. 673,50 Idaho 550
• Parties: J. H. ANDERSON and MARY ANDERSON, Respondents, v. J. C. CARRIGAN and MARY L. CARRIGAN, Appellants
• Court: Idaho Supreme Court

298 P. 673

50 Idaho 550

J. H. ANDERSON and MARY ANDERSON, Respondents, v. J. C. CARRIGAN and MARY L. CARRIGAN, Appellants

No. 5691

Supreme Court of Idaho

April 20, 1931

VENDOR AND PURCHASER-CONTRACT OF SALE-ASSIGNMENT-RIGHTS OF PARTIES-TENANCY IN COMMON-SALE OF INTEREST.

1. Vendors' execution and delivery of quitclaim deed to vendees under contract of sale held not to relieve vendees from liability to vendors' subsequent assignees under terms of sale contract.

2. Assignee of contract for sale of realty, if assignable acquires all rights of assignor and takes contract subject to assignor's obligations.

3. Owner of undivided interest in land may sell his interest to any person he desires.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to recover on contract for sale of real property. Judgment for plaintiffs. Affirmed.

Judgment affirmed, costs to respondents.

P. C O'Malley, for Appellants.

"Only the grantor and heirs can enforce condition." (3 Thompson on Real Property, p. 278.) "Right to enforce forfeiture is not assignable." (3 Thompson on Real Property, p. 278.)

"Only the grantor or his heirs can enforce a condition. He or they alone can enter for a breach of the condition." (School Dist. No. 21, Wallowa County, v. Wallowa County, 71 Ore. 337, 142 P. 320; Seeck v. Jakel, 71 Ore. 35, 141 P. 211 L. R. A. 1915A, 679.)

"The deed of a cotenant purporting to convey the entire title to the tract of land recorded, and followed by the exclusive possession of the grantee, is, from the time of such recording and transfer of possession, a disseisin of the other co-tenants." (Burget v. Taliaferro, 118 Ill. 503, 9 N.E. 334.)

"A conveyance by warranty deed by a tenant in common is an ouster of the others."

"Entry by a stranger to whom one tenant in common has conveyed the whole estate operates as a disseisin of the others." (Foulke v. Bond, 41 N.J.L. 527.)

"Tenants in common are severally seized of distinct freeholds and neither can bind the estate or person of the other." (St. Paul's Church v. Ford, 34 Barb. (N. Y.) 16.)

Under the above rulings, neither the Clarks nor the Pocatello Loan, etc., could in any way transfer any rights against or bind in any way the defendants.

John W. Peter and H. J. Swanson, for Respondents.

Real estate contracts can be assigned; and the contract involved in the suit at bar was by its terms binding on the assigns of the original parties thereto; and it was sufficiently assigned to the plaintiffs. (39 Cyc., "Vendor and Purchaser," p. 1663 (quotation from p. 1663).

"(5). Assignments--a. Assignment or Conveyance by Vendor--(1): Right to Assign or Convey. The vendor, by having executed a contract of sale or bond for title, does not deprive himself of the right to convey the fee and thus entitle the grantee to all of his rights in the land subject to the contract. And a vendor has a right to assign his rights under the contract so as to entitle the assignee to enforce the same, at least in the absence of a covenant or stipulation to the contrary." (Brady v. Fowler, 45 Cal.App. 592, 188 P. 320.)

"If the intent of the party to effect an assignment be clearly established, it is sufficient, and the assignment may be in the form of an agreement or order or any other instrument which the parties may see fit to use for the purpose."

By the vendor conveying the title to the land. (Shenners v. Pritchard, 104 Wis. 287, 80 N.W. 458.)

Assignee acquires all rights of vendor. (Semmler v. Beulah Coal Min. Co., 48 N.D. 1011, 188 N.W. 310; quotation, p. 312.)

"(1) The vendor's conveyance by quitclaim deed to Kenyon operated to transfer to Kenyon all of the vendor's right, title, and interest in the estate, at law, or in his vendor's lien, in equity. It thereby gave to Kenyon all of the rights possessed by the vendor including the right to enforce the vendor's lien and collect the balance of the unpaid purchase price pursuant to the contract. (39 Cyc. 1664; 27 R. C. L. 560; Witt v. Boothe, 98 Kan. 554, 158 P. 851, 853.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

One Spiro owned in fee certain lots in the city of Pocatello. On August 23, 1923, Clark entered into a written agreement with Spiro to purchase the lots, on a partial payment plan. The agreement was in the usual form, containing a forfeiture clause and a provision that all payments, upon Clark's failure to carry out the terms of the contract, should be applied as rent. The agreement was filed of record. On March 1, 1924, Clark and his wife entered into an agreement to sell to Carrigan and his wife an undivided one-half interest in the lots covered by Clark's agreement with Spiro. The agreement between the Clarks and Carrigans was practically the same as that between Spiro and Clark. The later agreement was not filed of record. The consideration that the Carrigans were to pay to Clarks was $ 2,500, of which $ 302.12 was paid at the time the agreement was entered into, the balance to be paid in monthly installments. There was a mortgage upon the premises for $ 1500 which was assumed by the Clarks and Carrigans in equal proportions. The agreement further provided that interest should be first paid out of monthly installments upon the mortgage debt, next interest on the deferred payments and the balance on the deferred payments.

The Carrigans made payments on their one-half interest in the property to Clark until November 15, 1924, when the Clarks executed and delivered to the Carrigans a quitclaim deed to their interest in the lots. This deed was not filed of record. December 16, 1924, Spiro executed and delivered a warranty deed to the lots to the Pocatello Loan & Realty Company, hereinafter referred to as the realty company. On the same date the Clarks made and executed a quitclaim deed to the realty company and at the same time, in writing assigned the contract between them and the Carrigans to the realty company, which company assumed all of the obligations in the contract to be performed by the Clarks. The Carrigans made monthly payments to the realty company for a period of over five years. During this time the realty company paid the $ 1500 mortgage and remortgaged the property. Respondents became mortgagees of the lots...