Isensee v. Austin

• Decision Date: 02 October 1896
• Citation: 15 Wash. 352,46 P. 394
• Parties: ISENSEE ET AL. v. AUSTIN ET AL. [1]
• Court: Washington Supreme Court

46 P. 394

15 Wash. 352

ISENSEE ET AL. v. AUSTIN ET AL. ^[1]

Supreme Court of Washington

October 2, 1896

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Philip M. Isensee and another against Thomas C. Austin and another. There was a judgment for plaintiffs, and defendants appeal. Reversed.

Black & Leaming, for appellants.

S. M Bruce and Brown & Cleveland, for respondents.

DUNBAR J.

This is an action brought to subrogate the respondents to the rights of the mortgagees of a certain mortgage. The defendants (appellants here), and others of the Austin family, the parties of the second part, and who were owners of the timber in question, entered into a contract with John K. Rae and P M. Isensee, whereby the parties of the first part granted to the parties of the second part the right, privilege, and authority to at all times, for a period of five years from the date of the contract, go upon the land described, and cut thereon and remove therefrom all merchantable timber, excepting that which was adapted to shingle bolts solely, on conditions therein named. The action was brought by the respondents, Philip M. Isensee and Lena Isensee, as successors in interest of the original contracting parties, P. M. Isensee and John K. Rae. At the time this contract was made, the land was covered by certain mortgages, among which was one for the sum of $2,000, to the Puget Sound Trust & Banking Company, said mortgage having been executed by Henry Austin and wife. Under the terms of the contract material to be noticed here, the parties of the second part agreed to pay in cash, at date of signing contract, $1,000, which amount was paid; to further pay $1 a thousand feet for each thousand feet of merchantable timber upon the land, payments to be made each 30 days, for the timber removed during the preceding 30 days. They further agreed to assume the payment of, and did assume the payment of, certain mortgages, among which was the one first above mentioned, together with all interest to come due on said mortgages, and agreed to pay the interest on said mortgages as they fell due, irrespective of whether any money was due from the parties of the second part to the first party at said time or times. The mortgages provided that the maturing of the interest and its nonpayment at time of maturity should mature the principal. The mortgage to the trust company was paid by Rae and Isensee, as per contract agreement. Rae afterwards conveyed his interest in the contract to Lena Isensee. Isensee afterwards became involved, and on September 7, 1893, Isensee and wife conveyed to John H. Stenger their interest in the contract, and in all the logs and logging outfit owned by them. Stenger failed to comply with the provisions of the contract, and on March 12, 1894 the parties of the first part to the contract commenced an action against John H. Stenger for the specific performance of the contract; the allegations being that the logging had been abandoned, that the payments called for by the contract were not being made by the owners of the contract, and the mortgages assumed were in default. The decree entered by the court in that action directed the defendants to within 30 days specifically perform said contract, in so far as the said contract provides for the payment, by the parties of the second part named in said contract, of all moneys due upon the certain mortgages mentioned in said contract. It also further provided that, in the event of the failure to specifically perform as in the decree ordered, the contract should be canceled, and the record thereof discharged. On July 12, 1894, it appearing to the court that the defendant had failed to perform in obedience to the decree of the court, the court entered a final decree canceling the contract. Subsequently Stenger transferred to Isensee and wife the contract in question and all the rights of said Stenger thereunder, and this action is brought by Isensee and wife, who claim that the payments made under the contract exceeded the amount that is represented by the timber cut at the rate of $1 per thousand feet, and the $1,000 paid down and that, inasmuch as one of the payments so...