Boyer v. Paine

• Decision Date: 08 September 1910
• Citation: 110 P. 682,60 Wash. 56
• Court: Washington Supreme Court
• Parties: BOYER et al. v. PAINE et al.

110 P. 682

60 Wash. 56

BOYER et al. v. PAINE et al.

Supreme Court of Washington

September 8, 1910

Department 2. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by John E. Boyer and others against Frank W. Paine and others. From the judgment, plaintiffs appeal. Partly reversed and partly affirmed.

Bennett & Sinnott and Dunphy, Evans & Garrecht, for appellants.

T. P. &amp C. C. Gose and H. S. Blandford, for respondents.

PARKER J.

This action was commenced to recover possession of real property. The complaint contains only the simple allegations of a complaint in ejectment, in substance, that plaintiffs are owners of lots 1, 2, and 3 of section 13, township 6, range 33, in Walla Walla county, that they are entitled to the possession of the land, and that the defendants wrongfully withheld the possession thereof. The prayer is for possession of the land and damages for withholding possession. The answer is quite lengthy, and we deem it unnecessary to review its allegations here further than to state that it alleges in substance, that the plaintiffs claim title under a certain deed from certain of the defendants executed in behalf of all of them, which deed while, absolute in form, was given together with a deed for other land in Oregon, only as a mortgage to secure the performance of a certain contract, which contract and others claimed to have been executed contemporaneous with the making of the deeds and as part of the same transaction are set out in the answer, and will be hereafter noticed in our review of the facts developed at the trial. The defendants pray 'that the plaintiffs take nothing, that the said instrument of conveyance be adjudged by this court to be a mortgage of indemnity as in this pleading shown, and that the defendant irrigation company be adjudged the owner of said lands (subject to said mortgage) and in possession thereof,' and, in the alternative, prays for a reconveyance of the lots in the event the court holds the conveyance thereof was absolute with an agreement to reconvey amounting only to a conditional sale. The reply denies the new matter set forth in the answer, and especially denies that the deed was intended as a mortgage. A trial before the court without a jury resulted in a judgment denying the prayer of the plaintiffs' complaint, and adjudging that the conveyance of the land under which plaintiffs claim title, and also the conveyance of the Oregon land, is in effect a mortgage only, to secure the performance of the contract and payment of damages that may accrue to plaintiffs from a failure to perform the same; that $1,500 is the amount of damages sustained by plaintiffs on account of defendants' failure to perform the conditions of the contract secured by such mortgage; that upon the payment of the $1,500 damages within 30 days the plaintiffs reconvey lot 1, and also reconvey the Oregon land subject to a certain mortgage thereon; that, in the event of the failure of defendants to pay the $1,500 damages within 30 days, lot 1 be sold to satisfy the same, thus in effect foreclosing the lien upon lot 1; and that lots 2 and 3 be reconveyed to defendants, this being upon the ground that the lien has been satisfied as to those lots. From this disposition of the case the plaintiffs have appealed to this court. It is now conceded by appellants that there has been substantial performance of the conditions entitling respondents to reconveyance of lots 2 and 3, and no contention is made against the correctness of the judgment of the trial court directing such reconveyance.

The dealings out of which this controversy grew were between John E. Boyer acting for all the appellants, and Paine and wife, and Burlingame and wife acting for all the respondents. The interests of the appellants are in common, as are also the interests of the respondents. The land which the appellants seek to recover lies in Walla Walla county, Wash., very near the boundary line between Oregon and Washington. The other lands incidentally involved lie in Umatilla county, Or., also very near the boundary line between the two states. The dealings between the parties are somewhat involved and are evidenced for the most part by conveyances and agreements in writing; and, in order to be fully advised of the nature and extent of these conveyances and agreements, and their bearing upon the intent of the parties in executing the conveyance under which appellants claimed title to lot 1, it will be necessary to quote from them at considerable length. The terms of the first agreement between the parties are expressed in a letter from Boyer to Burlingame, which is in effect an agreement to sell the stock of the Walla Walla Irrigation Company owned by appellants. These terms were assented to by Burlingame, and the letter has since been treated by the parties as the contract for such sale. The letter is as follows: 'Walla Walla, Wash., November 3, 1903. Mr. E. C. Burlingame, Ellensburg, Wash.--Dear Sir: Your favor of October 31, 1903, accepting my proposition for the sale of our shares of stock in the W. W. I. Co. and requesting that I send a letter expressing in general terms the nature of the agreement, is at hand. As I understand the agreement it is in general terms as follows: That we will sell all our shares of stock in the W. W. I. Co. to you in consideration of the following: 1st. A conveyance by you and your wife giving us a clean title, free from all incumbrances, to your farm in Sec. 18-6-35, including full water rights from the W. W. I. Co. for that portion of the farm that lies north of the Company's canal, and any other water rights or appropriations for water rights belonging to or appurtenant to said farm now in use or hereafter to be acquired, and everything else appurtenant to the place, with abstract of title brought down to date showing fee simple, absolute, title free from all incumbrances, in yourself. 2nd. A promissory note for $1,500 signed by yourself and wife, due one year after date, bearing 7 per cent. interest, secured by a mortgage on the South-west quarter of the North-west quarter of Sec. 24-6-34--part of your Oregon farm--and all water rights now appurtenant or belonging thereto or hereafter to be acquired, with abstract of title showing fee simple, absolute, title, free from all incumbrances, in yourself. 3rd. A contract signed by yourself and wife insuring that the W. W. I. Co.'s canal shall be built, and a permanent supply of water be brought thereby, to our 320 acres in Sections 19 and 20 in Tp. 6, N. R. 34, with sufficient water unappropriated for other purposes and available for our use to properly and fully irrigate all of said 320 acres, the said canal to be constructed and the water available for delivery to us on said lands as aforesaid on or before January 1, 1906, and with right in us to acquire and have the permanent enjoyment of full water rights that will give us permanent supply of water from said company sufficient for the irrigation of as many acres of said 320 acres as we shall choose to irrigate on our paying to you, or such person as you shall designate, the sum of $15 for each acre of said land that we shall choose to have irrigated, our right to acquire such water rights to be exercised by us at any time within three years after such permanent supply of water shall be brought to and be deliverable upon said 320 acres, we to have the right to pay for such water right in cash or in promissory notes bearing interest at 6 per cent. per annum. To secure the performance of this agreement and understanding on your part you are to furnish us a bond by the Security Company of which Dice & Jackson, of Walla Walla are agents in the sum of $7,500. This agreement is to be carried out as far as possible as soon as the papers can be prepared, but you are to have thirty days in which to clear up the title to the property to be conveyed to us and bring the abstract down to date, our stock to be held by us or in escrow with voting power in us, until the titles to the properties to be conveyed to us, absolutely or by mortgage, are made perfect and all incumbrances, removed therefrom. Time to be of the essence of this agreement, and the same to be binding upon, and the benefits and rights thereunder to accrue to, the heirs, representatives, administrators, executors, and assigns of all parties to the agreement. Yours truly, John E. Boyer.'

Thereafter in compliance with the terms expressed in this letter, the following agreement was entered into: 'This agreement, made and entered into this 5th day of November, 1903, by and between E. C. Burlingame and Elizabeth S. Burlingame, his wife, parties of the first part, and Arthur A. Boyer, Annie I. Norton, John E. Boyer, and Sarah I. Boyer, parties of the second part, witnesseth: That said parties of the first part, for and in consideration of the sum of one dollar, to them in hand paid, and other valuable consideration the receipt whereof is hereby acknowledged do hereby covenant and agree with, and insure, warrant and guarantee unto the parties of the second part, their heirs, executors, administrators and assigns, that before the first day of January, A. D. 1906, the Walla Walla Irrigation Company will dig, build, construct, and complete of sufficient size not less than four feet at the bottom, its main line of canal in the state of Oregon, from the head of said canal in the state of Washington to the west boundary line of section nineteen in township six, north of range thirty-four, east of Willamette meridian, as the same is at present surveyed and located as shown on the blue print map of said line of canal prepared by D. H. Guilland, civil engineer; and that said company will before the first day of January, 1906,...