Johnson v. Sekor

• Decision Date: 15 May 1909
• Parties: JOHNSON v. SEKOR et al.
• Court: Washington Supreme Court

101 P. 829

53 Wash. 205

JOHNSON v. SEKOR et al.

Supreme Court of Washington

May 15, 1909

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by A. S. Johnson, doing business as A. S. Johnson & Company against George H. Sekor and others. Judgment for defendants and plaintiff appeals. Affirmed.

Lueders & Phelps, for appellant.

Emmett N. Parker, for respondents

MOUNT J.

This action was brought to subject certain real estate to the lien of a judgment. After a trial to the court without a jury, the action was dismissed, and plaintiff appeals.

The facts are as follows: The respondents E. F. Gregory and wife were the owners of lots 14 and 15 in block 5 of McKinley Park addition to Tacoma, Pierce county, Wash. On December 9, 1904 respondent H. L. Cory entered into a written contract with Gregory and wife, agreeing to purchase these lots for $240 to be paid $10 cash and $7.50 per month. The contract contained the following provision: 'In case of the failure of the party of the second part to make either of the payments or perform any of the covenants on his part or to pay all taxes, assessments, and impositions before delinquency, this contract shall be forfeited and determined at the election of the said parties of the first part. But said first parties shall not be obliged to give any notice to said second party of such election, and the said party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by them sustained, and they shall have the right to re-enter and take possession of said land and premises and every part thereof. It is mutually agreed that time is and shall be the essence of this contract.' Payments were made upon the contract substantially as agreed, until September, 1907. In the meantime, on April 26, 1905, the appellant obtained a judgment in the superior court of Pierce county against H. L Cory for $456 and costs. After September, 1907, Cory made no further payments upon the contract for the purchase of the lots, on which contract there was then due $22.95. He was requested upon different occasions by the agent of Mr. Gregory to complete his payments, but he refused to do so, saying he had been informed that if he acquired the title appellant, on account of the judgment above named, would take the lots away from him. On December 20, 1907, Mr. Cory, being three months in arrears in his payments, was notified that, unless he made his payments, his contract would be forfeited. He then stated that he was 'not going to make any more payments on that contract,' and was then told that the contract was at an end. On the next day Gregory and wife conveyed the property to E. F. Gregory & Co., a corporation, in which they were the principal stockholders. The lots were vacant and unoccupied lots during all the times herein mentioned. On December 28, 1907, the appellant, in supplemental proceedings in aid of the judgment against Cory, procured a temporary restraining order against the Gregorys, restraining them from conveying the lots. This...