Bruckart v. Cook

Decision Date04 March 1948
Docket Number30405.
Citation190 P.2d 725,30 Wn.2d 4
PartiesBRUCKART et ux. v. COOK.
CourtWashington Supreme Court

Department 2

Action by John R. Bruckart, Jr., and wife against Florence L. Cook for cancellation of contract to purchase realty and to recover amount paid on account of purchase price and sum expended for improvements and repairs, wherein the defendant filed a cross-complaint seeking forfeiture of the contract. From a judgment dismissing plaintiffs' action, quieting defendant's title, and forfeiting the contract and all sums paid by plaintiffs, the plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

R. F Dotsch, of Olympia, for appellants.

Pebbles & Kuykendall, of Olympia, for respondent.

BEALS Justice.

During the month of April, 1946, the plaintiffs John R. Bruckart Jr., and Marian E. Bruckart, his wife, entered into negotiations with the defendant, Florence L. Cook, concerning the purchase by plaintiffs from defendant of a tract of land in Thurston county, Washington, described as:

'Lot three (3) and the east 20 feet of Lot ten (10) in Block nine (9) of Galliher's Addition to Olympia, according to the plat thereof recorded in Volume 1 of Plats, page 73, records of Thurston County, Washington.'

The defendant resided in Douglas county, and plaintiffs' negotiations were conducted through a real estate agent in Olympia.

April 22, 1946, the parties signed a contract, in writing, providing for the sale of the property by defendant to plaintiffs for the sum of three thousand dollars, one thousand dollars to be paid in cash, the balance to be payable at the rate of thirty-five dollars or more a month, including interest, until the balance of the purchase price should be paid in full, plaintiffs agreeing to pay all taxes or assessments thereafter levied, and to keep the buildings on the property insured in the sum of twenty-five hundred dollars for defendant's protection. Plaintiffs made a down payment of one hundred dollars, subject to examination of title.

The plat of Galliher's Addition to Olympia was recorded in the office of the auditor of Thurston county, Washington Territory, December 13, 1871. The blocks consisted of twelve lots, each lot having a fifty foot frontage on the street and being one hundred feet in depth. Block 9 is bounded on the north by Milas avenue, on the east by north Lilly street, on the south by Etheridge avenue, and on the west by north Berry street. The streets are described as being sixty feet wide. The lots face east and west, lots 1 to 6 in each block facing east, and lots 7 to 12 facing west. Fach block is bisected by an alley, running north and south, described on the plat as fifteen feet in width.

The property which plaintiffs agreed to purchase from defendant consisted of lot 3, facing east, fifty feet frontage on north Lilly street by one hundred feet in depth, and the east twenty feet of lot 10, the side boundaries of that lot coinciding with the north and south boundary lines of lot 3, produced westerly across the alley. There was a house upon the property, and a separate garage.

An abstract was furnished to plaintiffs by defendant, the abstract containing a blueprint of the plat, showing the lots, streets, and alleys, all plainly indicated. The abstract being unsatisfactory to plaintiffs, they procured a policy of title insurance, whereby plaintiffs' title to the property was insured in their favor for three thousand dollars. This policy of title insurance also contained a copy of the plat, similar to that contained in the abstract, plainly indicating the lots, streets, and alleys.

Plaintiffs, being satisfied with the title upon delivery of the policy of title insurance, paid to defendant the blance of the one-thousand-dollar down payment, and took possession of the property, upon which was situated the house and the garage referred to above. The dwelling was in poor condition, and plaintiffs repaired and renovated the same at the expenditure of considerable labor and money.

After several months, during which plaintiffs paid the monthly installments due under the contract, they decided to sell the property, and found a purchaser, ready, able, and willing to purchase the same at an advance over the price they had agreed to pay defendant. The prospective purchaser, upon investigating the title and examining the property, discovered the fact, which was at all times perfectly obvious, that approximately half of the house was standing upon the east twenty feet of lot 10; that a large portion thereof was standing upon the platted alley, and that only a very small portion thereof rested upon the westerly portion of lot 3; that about two thirds of the garage was standing upon the southwesterly corner of lot 3, projecting a slight distance over the northwesterly corner of lot 4, the remainder thereof standing upon the platted alley.

The prospective purchaser then refused to purchase the property, the plaintiffs refused to make further payments due, pursuant to the contract, and instituted this action against defendant, alleging their agreement to purchase the property from defendant; that they took possession, pursuant to the contract, and made the payments above described; that defendant had represented that the improvements, consisting of the dwelling and garage, were situated upon the property covered by the contract; that plaintiffs had expended money, labor, and material in renovating the house, and had disbursed other sums for fire insurance, title insurance, and so forth, in reliance upon their belief that the dwelling was situated upon the property, when, in fact, the dwelling and part of the garage were standing upon the platted alley; that plaintiffs had joined with other property owners, requesting the commissioners of the city of Olympia to vacate the alley, and that the request had been refused; that defendant had refused to pay the very considerable expense required to move the house from the alley to lot 3; further alleging that plaintiffs were willing to do equity in the premises, and praying for cancellation of the real estate contract, for judgment against defendant for the sum of $1,280 paid on account of the purchase price of the property, for the further sum of $386.70 on account of improvements and repairs made by plaintiffs on the property, and for such further relief as might appear equitable.

The defendant filed her answer and cross-complaint, admitting the execution of the contract between the parties, denying other allegations of the complaint, and, by way of a cross-complaint, praying for forfeiture of the contract.

The action was called for trial, and, at the close of plaintiff's case, defendant moved to dismiss plaintiffs' complaint, contending that, under the complaint and the evidence introduced by plaintiffs in support thereof, plaintiffs were entitled to no relief. After argument, the court stated that the motion would be granted and plaintiffs' action dismissed.

Defendant was then called as a witness on her own behalf, and testified in support of her cross-complaint.

In due time, the trial court entered findings of fact and conclusions of law in defendant's favor, based upon the evidence she introduced, followed by a decree dismissing plaintiffs' action with prejudice, quieting defendant's title to the property as against plaintiffs, forefiting to defendant all sums paid by plaintiffs, pursuant to the contract referred to, as liquidated damages, granting, however, to the plaintiffs an opportunity to reinstate the contract by making certain payments to defendant within a specified time.

From the decree plaintiffs have appealed.

Respondent, in her brief, moves to strike appellants' brief and dismiss their appeal, arguing that appellants' brief contains no assignment of error. It is true that appellants' brief contains no formal assignment of error, but, from appellants' statement, in their brief, of the question involved, it appears that they present only the question that, upon the evidence, the court erred in entering a decree in favor of respondent, and in dismissing appellants' action. Following the opinion of this court in Re Whittier's Estate, 26 Wash.2d 833, 176 P.2d 281, respondent's motion to strike appellants' brief is denied.

We again call attention to the fact that the brief of an appellant should contain a definite statement of assignments of error, as provided by Rule of Supreme Court 21, 18 Wash.2d 21-a.

In their brief, appellants directly state that they make no contention that either respondent or anyone representing her, or on her behalf, made any false or fraudulent representation concerning the property. The record contains to evidence that respondent ever saw the property or that she knew or had ever heard that the dwelling in question stood, in part, upon the alley.

The contract between the parties provided that, when appellants had made the payments called for by the contract, they should receive a deed conveying the premises in fee simple, with the usual covenants of warranty, excepting from these covenants taxes or assessments becoming liens after the date of the contract, and all liens and encumbrances created by appellants or their assigns.

Appellants rely solely upon the contract, arguing that a vendor of real estate is presumed to know his own title and cannot shift to a purchaser the burden of ascertaining the existence of such a state of facts as is here presented, and that respondent has breached her covenant to convey with warranty of title.

It appears that appellants petitioned for the vacation of the alley, supported by the signatures of other property owners interested, and that the commissioners of the city of Olympia denied...

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5 cases
  • Burr v. Lane
    • United States
    • Washington Court of Appeals
    • January 14, 1974
    ...and cooperating in the defense of the action. We are able to review the error assigned under the rationale of Bruckurt v. Cook, 30 Wash.2d 4, 190 P.2d 725 (1948); In re Estate of Whittier, 26 Wash.2d 833, 176 P.2d 281 (1947); Moore v. Spokane, 88 Wash. 203, 152 P. 999 Plaintiff disagrees wi......
  • Cunningham v. Studio Theatre
    • United States
    • Washington Supreme Court
    • April 12, 1951
    ...of an income of ninety dollars a day. Appellants rely upon Christiansen v. Parker, 152 Wash. 149, 277 P. 445, and Bruckart v. Cook, 30 Wash.2d 4, 190 P.2d 725. These cases had nothing to do with representations of the character of that with which we are here concerned. In the Christiansen c......
  • Somers v. Leiser
    • United States
    • Washington Supreme Court
    • August 5, 1953
    ...known to a vendee, or the existence of which he should have known or ascertained had he made a reasonable investigation. Bruckart v. Cook, 30 Wash.2d 4, 190 P.2d 725; 55 Am.Jur. 710, Vendor and Purchaser, § 258; 57 A.L.R. 1426. This rule of law with certain exceptions has been given express......
  • Beers v. Martin, 30356.
    • United States
    • Washington Supreme Court
    • March 4, 1948
  • Request a trial to view additional results

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