Davis v. Lee

• Decision Date: 29 March 1909
• Citation: 100 P. 752,52 Wash. 330
• Parties: DAVIS v. LEE et al.
• Court: Washington Supreme Court

100 P. 752

52 Wash. 330

DAVIS v. LEE et al.

Supreme Court of Washington

March 29, 1909

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Zula Davis against Charles S. Lee and another. From a judgment for plaintiff, defendants appeal. Affirmed as to defendant Lee, and reversed as to defendant W. H. Vernon.

Fred H Peterson, for appellants.

W. F. Freudenberg, for respondent.

CHADWICK J.

Prior to the 4th day of May, 1903, defendant Charles S. Lee had acquired a tax title to the lands hereinafter described. On that day he, as party of the first part, and D. P. Merritt and H. Merritt, as parties of the second part, entered into the following contract: 'Real Estate Contract. It is hereby mutually agreed, by and between Charles S. Lee unmarried, of Ballard, Wash., the party of the first part and Harry Merritt and D. P. Merritt, the parties of the second part, that said party of the first part will sell to said parties of the second part, their heirs and assigns, and said parties of the second part will purchase of said party of the first part, his heirs, executors or administrators, the following described lots, tracts or parcels of land, situate in King county, Wash.: All of lots one (1) two (2), three (3), four (4) and five (5) in block seventy-two (72) in Salmon Bay Park addition to the city of Seattle now in Ballard, with the appurtenances thereunto belonging, on the following terms: First, the purchase price for said land is two hundred fifty and no/100 dollars, of which the sum of twenty-five and no/100 dollars has this day been paid as earnest, the receipt whereof is hereby acknowledged by said party of the first part; and the further sum of two hundred twenty-five and no/100 dollars to be paid on or before the ___ day of _____, A. D. 19__, with interest thereon from this date until paid at the rate of 8 per cent. per annum, as follows, to wit, ten and no/100 on first day of each and every following month until fully paid, and the said parties of the second part, in consideration of the premises, hereby agree that they will regularly and seasonably pay all taxes and assessments which may be hereafter lawfully imposed on said premises. All improvements placed thereon shall remain, and shall not be removed before the final payment be made for said above-described premises. In case the said parties of the second part, their legal representatives or assigns, shall pay the several sums of money aforesaid, punctually at the several times above specified, and shall strictly and literally perform all and singular the agreements and stipulations aforesaid, according to the true intent and tenor thereof, then the said party of the first part shall make to the said second party, his heirs or assigns, upon request, and upon surrender of this agreement, a claim deed to said premises. But in case the second parties shall fail to make the payments as set forth in this agreement, or any of them punctually, and upon the terms and at the times specified, the times of payment being declared to be of the essence of this agreement, or permit any lien or material to be filed against said real estate, then the party of the first part, his heirs, executors, or assigns, shall have the right to declare this agreement null and void, and in such case all the rights and interest of second parties hereby created or then existing shall utterly cease and determine, and the premises shall revert to and revest in said first party without any declaration of forfeiture or act of re-entry, and second parties shall have no right of reclamation or compensation for money paid or improvements made, as absolutely, fully and perfectly as if this agreement had never been made, and in such event such payments shall be retained by said party of the first part as compensation for the use and occupancy of said premises by said parties of the second part, and as rental thereof. And it is further agreed that no assignment of this agreement shall be valid without the consent and signature of Charles S. Lee or W. H. Vernon, agent, the party of the first part. And the said second parties hereby agree to pay to said first party the remaining principal and interest as follows: * * * Payments to be made on or before the above dates to Charles S. Lee or W. H. Vernon, Agt., or order, interest due, to be deducted from any payment made. Witness our hands and seals in duplicate this 4th day of May, A. D. 1903. Charles S. Lee. [Seal.] D. P. Merritt. [Seal.] H. Merritt. [Seal.] Signed, sealed and delivered in presence of: H. Galloway. W. H. Vernon.'

Thereafter the Merritts sold all right, title, and interest in the contract to Joseph I. Davis and Zula Davis, his wife, plaintiffs herein. All payments were made as stipulated, and a quitclaim deed was executed by defendant Lee on the 22d day of September, 1905, which was delivered to Mrs. Davis; but she denies that it was ever accepted as a discharge of defendants' contract. It was never recorded. Just prior to the last payment, plaintiffs were threatened with an action of ejectment. They notified defendant Vernon, who had acted throughout for defendant Lee, of the pendency of the action. When the action was brought, Lee was made a party to the suit. He thereupon served notice on plaintiffs that, if they did not immediately pay the balance due--a matter of $17.10--he would forfeit the contract. Plaintiffs accordingly paid the amount, taking a receipt in full and a quitclaim deed. Lee did not defend the action of ejectment, but filed a disclaimer of any interest in the land, and was dismissed as a party. Plaintiffs assumed to defend the title, but were unsuccessful. After judgment against them, they purchased the property from the owner. Whereupon they brought this action to recover the purchase price and the costs and expenses incurred in the action of ejectment. Pending the trial in the court below, plaintiff Joseph I. Davis died, and the action has since been prosecuted under the original title by Zula Davis, in accordance with the stipulation of the parties. The trial court found for the plaintiffs in the sum of $250, the purchase price, with interest at the rate of 10 per cent. per annum, but denied a recovery for the costs and expenses incurred in defending their title.

Appellants assign numerous errors; but, aside from a general assignment as to the admission of testimony, they all go to the one legal proposition: Did the appellant Lee perform his contract by the execution and delivery of a quitclaim deed? Appellants contend that, whatever the original contract may have been, and whatever agreements or assurances may have been given during the life of the contract, they were all merged in the deed, and by its acceptance appellants took only such title as Lee had, and are without remedy. We agree with counsel that the general rule is that 'a deed made in full execution of a contract of sale of land merges the provisions of the contract therein, and this rule extends to and includes all prior negotiations and agreements leading up to the execution of the deed, all prior purposes, stipulations, and oral agreements, all collateral promises, including promises made contemporaneously with the executior of the deed.' 13 Cyc. 616. Like most all rules, the one quoted has its exceptions, and, continuing the same text, we find the following: 'A deed is not, however, always a merger of the articles of agreement, nor are a vendor's or a purchaser's covenants necessarily merged or discharged, and a parol agreement may be suspended by the subsequently executed instrument. The question of merger has also been declared to be one of construction to be gathered from a consideration of the entire contents of the instruments.' 13 Cyc. 616. Appellant Lee agreed to sell certain described town lots. The purchase price for the land, not his right, title, or interest, but the land itself, was agreed upon, which sum the vendees agreed to pay in installments, and in the meantime to pay all taxes and assessments thereafter to be levied on the premises. The intention of the parties must be gathered from the instruments, and their conduct with reference thereto. That respondent and her husband intended to buy the land, rather than an uncertain interest, cannot be questioned; and, in our opinion, they were justified in relying upon the text of the contract. The rule governing this case is well stated in Morris v. Whitcher, 20 N.Y. 41, as follows: 'In all cases then, where there are stipulations in a preliminary contract for the sale of land, of which the conveyance itself is not a performance, the true question must be whether the parties have intentionally surrendered those stipulations. The evidence of that intention may exist in or out of the deed. If plainly expressed in the very terms of the deed, the evidence will be decisive. If not so expressed, the question is open to other evidence, and I think in absence of all proof there is no presumption that either party, in giving or accepting a conveyance, intends to give up the benefit of covenants of which the conveyance is not a performance or satisfaction. There are remarks of judges, in cases which need not be particularly referred to, which seem in their result to deny the possible coexistence of a deed and of a collateral writing, which qualifies its effect, especially if the collateral writing be made before the deed. But I have shown, I trust, that there is no such rule as observations of that nature would appear to suggest.' Brennan v. Schellhamer (Com. Pl.) 13 N.Y.S. 558; Disbrow v. Harris, 122 N.Y. 362, 25 N.E. 356.

Error is also predicated upon the allowance of oral testimony as to the conversations and assurances made by defenda...