Higgenbotham v. Topel, Nos. 545--II

CourtCourt of Appeals of Washington
Writing for the CourtGREEN
Citation9 Wn.App. 254,511 P.2d 1365
PartiesChester HIGGENBOTHAM et al., Respondents, v. Bernard J. TOPEL, Catholic Bishop of Spokane, a corporation sole, Appellant, William F. Dreger et al., Respondents.
Decision Date06 July 1973
Docket NumberNos. 545--II,546--III

Page 254

9 Wn.App. 254
511 P.2d 1365
Chester HIGGENBOTHAM et al., Respondents,
v.
Bernard J. TOPEL, Catholic Bishop of Spokane, a corporation
sole, Appellant, William F. Dreger et al., Respondents.
Nos. 545--III, 546--III.
Court of Appeals of Washington, Division 3.
July 6, 1973.

Harry E. Hennessey, of Hennessey, Curran, Kelly & Workland, Spokane, for appellant.

[511 P.2d 1366] Norman D. Brock, of Underwood, Campbell, Zellmer & Kain, Davenport, for respondents Higgenbotham & Eagle.

Patrick H. Murphy, Spokane, for respondents Dreger.

GREEN, Chief Judge.

Two questions are presented:

(1) Is a devisee under a will, who receives wheatland encumbered by a lease that requires the lessor to pay the lessee for summer fallow upon expiration of the lease, liable to the lessee for such payment?

(2) Upon expiration of the lease, is a contract purchaser

Page 255

of the land and assignee of the leases liable over to his assignor for the original lessor's obligation to pay the lessee for summer fallow in the absence of an express agreement to do so?

We answer 'yes' to (1) and 'no' to (2).

Defendant, Bernard J. Topel, Catholic Bishop of Spokane, a corporation, acquired certain wheatland by inheritance under a will. During the probate, the executors leased a portion of the land to plaintiffs Chester, Russell and Calvin Higgenbotham. Another portion was leased to plaintiff Arthur Eagle. In 1969, after the property had been distributed, the lessees paid the landlord's share of the crop due under the leases to the Bishop.

On February 12, 1970, the Bishop sold the property to the defendants, William F. and William H. Dreger and their respective wives, under a real estate contract. The contract contained the following proviso:

12. The vendors agree to furnish title insurance policy certified to the date hereof, showing title in vendors Free from incumbrance, except easement for roadway and Existing leases.

(Italics ours.) On February 20, 1970, the Bishop executed a warranty deed in favor of Dregers as grantee, and simultaneously executed an assignment of the lessor's interest under the leases to the Dregers as assignee. All of these documents were placed in escrow. The lessees paid the landlord's share of the 1970 crop due under the leases to the assignee, Dregers.

On August 31, 1970, the leases expired. The leases provided that upon their expiration the summer fallow was the property of the lessees and that the lessor would pay the lessees for it. 1 After discussion and negotiations, Dregers refused to pay the lessee-plaintiffs.

Page 256

This action was commenced against the Bishop and the Dregers to enforce the summer fallow provision. The Bishop cross claimed against the Dregers for judgment over based upon the sale of the land and assignment of the leases. The trial court entered judgment against the Bishop but denied judgment against Dregers. The Bishop appeals from the judgment against him and denial of a judgment over on the cross claim.

[511 P.2d 1367] First, it is contended the court erred in entering judgment against the Bishop. It is urged that since the Bishop was not a named party to the lease he was not required to assume the affirmative obligation to pay for summer fallow on expiration of the leases and cannot be held liable to the lessees. We disagree.

The leases in question were entered into by the executors of the estate during the course of administration of a nonintervention will which devised the real property to the Bishop. None of the parties question the executor's authority to lease the property. RCW 11.68.040. This real property vested in the Bishop immediately upon the testator's death, 'subject to his debts, . . . expenses of administration, and any other charges for which such real estate is liable under existing laws.' RCW 11.04.250. When the probate was closed, the Bishop took title to the wheatland burdened by the leases. North Pacific Mortgage Co. v. Sieler, 146 Wash. 530, 264 P. 4 (1928). The bequest was never rejected; instead, the Bishop accepted the fruits of

Page 257

the encumbered inheritance by receiving the landlord's share of...

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12 practice notes
  • Murr v. Selag Corp., No. 16070
    • United States
    • Idaho Court of Appeals
    • December 2, 1987
    ...172 Wash. 117, 19 P.2d 667 (1933); Hardinger v. Fullerton, 165 Wash. 483, 5 P.2d 987 (1931); Higgenbotham v. Topel, 9 Wash.App. 254, 511 P.2d 1365 (1973). This principle is the general rule. It is recognized in Idaho. 2 Klundt v. Carothers, 96 Idaho 782, 537 P.2d 62 (1975); Hinckley Estate ......
  • Intaglio Service Corp. v. J. L. Williams & Co., Inc., No. 80-456
    • United States
    • United States Appellate Court of Illinois
    • April 23, 1981
    ...269 Ill.App. 311; Johnston v. Messinger (1922), 226 Ill.App. 397.) As stated in Higgenbotham v. Topel (1973), 9 Wash.App. 254, 257, 511 P.2d 1365, "It is contended this liability was a covenant running with the land and, therefore, when the land was sold on contract and the lease assigned t......
  • Benaroya Capital Company v. EMF Partners, No. 54428-4-I (WA 7/5/2005), No. 54428-4-I
    • United States
    • United States State Supreme Court of Washington
    • July 5, 2005
    ...absent an express assumption of those obligations. Lewis v. Boehm, 89 Wn. App. 103, 107, 947 P.2d 1265 (1997); Higgenbotham v. Topel, 9 Wn. App. 254, 259, 511 P.2d 1365 (1973). They argue the $40,000 limitation on liability contained in the APSA demonstrates EMFP did not expressly assume EM......
  • Norton v. First Federal Sav., No. 14685
    • United States
    • Supreme Court of Arizona
    • February 2, 1981
    ...(1979); Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957); Higgenbotham v. Topel, 9 Wash.App. 254, 511 P.2d 1365 (1973). Other courts have held that a promise by the assignee to assume the assignor's obligations could be implied from the circumstances o......
  • Request a trial to view additional results
12 cases
  • Murr v. Selag Corp., No. 16070
    • United States
    • Idaho Court of Appeals
    • December 2, 1987
    ...172 Wash. 117, 19 P.2d 667 (1933); Hardinger v. Fullerton, 165 Wash. 483, 5 P.2d 987 (1931); Higgenbotham v. Topel, 9 Wash.App. 254, 511 P.2d 1365 (1973). This principle is the general rule. It is recognized in Idaho. 2 Klundt v. Carothers, 96 Idaho 782, 537 P.2d 62 (1975); Hinckley Estate ......
  • Intaglio Service Corp. v. J. L. Williams & Co., Inc., No. 80-456
    • United States
    • United States Appellate Court of Illinois
    • April 23, 1981
    ...269 Ill.App. 311; Johnston v. Messinger (1922), 226 Ill.App. 397.) As stated in Higgenbotham v. Topel (1973), 9 Wash.App. 254, 257, 511 P.2d 1365, "It is contended this liability was a covenant running with the land and, therefore, when the land was sold on contract and the lease assigned t......
  • Benaroya Capital Company v. EMF Partners, No. 54428-4-I (WA 7/5/2005), No. 54428-4-I
    • United States
    • United States State Supreme Court of Washington
    • July 5, 2005
    ...absent an express assumption of those obligations. Lewis v. Boehm, 89 Wn. App. 103, 107, 947 P.2d 1265 (1997); Higgenbotham v. Topel, 9 Wn. App. 254, 259, 511 P.2d 1365 (1973). They argue the $40,000 limitation on liability contained in the APSA demonstrates EMFP did not expressly assume EM......
  • Norton v. First Federal Sav., No. 14685
    • United States
    • Supreme Court of Arizona
    • February 2, 1981
    ...(1979); Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957); Higgenbotham v. Topel, 9 Wash.App. 254, 511 P.2d 1365 (1973). Other courts have held that a promise by the assignee to assume the assignor's obligations could be implied from the circumstances o......
  • Request a trial to view additional results

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