Kane v. Borthwick

• Decision Date: 09 July 1908
• Court: Washington Supreme Court
• Parties: KANE et ux. v. BORTHWICK.

96 P. 516

50 Wash. 8

KANE et ux. v. BORTHWICK.

Supreme Court of Washington

July 9, 1908

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by J. S. Kane and wife against Thomas G. Borthwick. From a judgment for defendant, plaintiffs appeal. Reversed and remanded, with directions to enter judgment for plaintiffs.

Kerr &amp McCord and C. M. Miller, for appellants.

S. H Steele, for respondent.

RUDKIN J.

On the 31st day of December, 1906, the plaintiff J. S. Kane and the defendant, Borthwick, entered into the following contract, for the sale of the real property therein described: 'Received of Thomas G. Borthwick $200 as earnest money on the purchase of the west half of lot 8 block 18, Law's addition to Seattle, W. T. Total purchase price to be $6,200, balance of $6,000 payable on delivery of deed. I am to furnish abstract brought down to date, and Mr Borthwick to have 5 days in which to examine same after delivery to him or his attorney. Title to be free and clear of all incumbrances, including street assessments. In case the title is a good and marketable title, and the purchaser fails to complete the purchase by paying the balance due, the $200 this day paid is to be retained by me as liquidated damages. In case the title is not good, and cannot be made good within 30 days, I am to return the $200. One insurance policy now on the property, amounting to $1,000, is to be turned over to the purchaser, and he is to pay $19.35 for the policy of $2,000 now on the property. Laundry trays now in basement to be connected and ready for use, and all electric fixtures now in the house of remain there.' Soon after the execution of this contract an abstract was prepared, and delivered to the purchaser for examination. The opinion of the attorney who first examined the abstract for the purchaser is not before us, but it seems that the only defects discovered by him were a mortgage, a street assessment, and a materialman's lien against the property. The purchaser for some reason became dissatisfied with the report of this attorney, and employed other counsel. The opinion of the latter is in the record, and points out 11 specific objections to the title. Two of these objections were based on the following facts: The property was conveyed to Hanah R. Mason of Pierce county, Wash. T., by deed dated October 4, 1870, and was conveyed by Hannah R. Mason of Benton county, Or., by deed dated May 21, 1880. The latter deed was also signed by P. W. Mason, who acknowledged the same, before a justice of the peace, as the husband of Hannah R. Mason. The name of the husband did not appear in the granting clause of the deed, but the deed itself contained the following covenant: 'Said Hannah R. Mason and P. W. Mason covenant to and with said C. H. Spinning [the grantee] his heirs and assigns, that she is the owner in fee simple of said premises; that they are free from all incumbrances, and that she will warrant and defend the same from all lawful claims.' The objections raised and pointed out in the opinion of the examiner were: '(1) Instrument No. 6 is a coveyance to Hanah R. Mason, of Pierce county, Wash. T., while instrument No. 7 is a conveyance by Hannah R. Mason, of Benton county, Or. There should be proof embodied in this abstract showing grantee at No. 6 and grantor at No. 7 are one and the same person. (2) Instrument No. 7 is a conveyance, as shown in the caption and body of the instrument by Hannah R. Mason alone. The same instrument purports to be signed by P. W. Mason, who appears from the acknowledgment to be her husband. The instrument is defective, as it does not purport to convey the husband's interest.' Several conferences took place between the attorneys for the respective parties in relation to the defects in the title, and the assumption of some of the liens against the property by the purchaser was discussed. It satisfactorily appears from the entire record that the vendors were ready, able, and willing to remedy and cure all the defects pointed out, except the two above referred to. These the vendors refused to remedy, because they doubted their ability to do so, and the purchaser refused absolutely to accept the title or carry out the contract unless they were remedied. The contract was thereupon recorded, and this action was instituted to cancel the contract and remove the cloud from the title. The complaint alleged title in the plaintiffs, the execution of the contract of sale, the preparation and...