Keene v. Zindorf

• Decision Date: 11 August 1914
• Docket Number: 11930.
• Citation: 81 Wash. 152,142 P. 484
• Parties: KEENE v. ZINDORF et ux.
• Court: Washington Supreme Court

142 P. 484

81 Wash. 152

KEENE v. ZINDORF et ux.

No. 11930.

Supreme Court of Washington

August 11, 1914

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Suit by Walter A. Keene against M. P. Zindorf and wife, for specific performance of a contract to convey land. Decree for complainant, and defendants appeal. Affirmed.

John W Roberts and Geo. L. Spirk, both of Seattle, for appellants.

Walter A. Keene, of Seattle, for respondent.

PARKER J.

The plaintiff seeks to enforce conveyance by defendants of certain real property in Seattle, in compliance with a lease containing an option to purchase the property, given by Anna M. Zindorf, the defendants' grantor, to Saburo Hisamidzu consul for the Japanese empire at Seattle, to whose rights the defendants have succeeded by assignment. A trial resulted in judgment requiring the defendants to execute and deliver to the plaintiff a good and sufficient quitclaim deed for the property, and, upon their neglect or refusal so to do, appointing the clerk of the superior court a commissioner to execute and deliver to plaintiff such a deed, also directing the clerk of the superior court to pay to the defendants the sum of $601, tendered and paid into the court by the plaintiff for the use of the defendants as the balance of the rent and purchase price of the property. From this disposition of the cause the defendants have appealed.

There is no dispute worthy of serious consideration concerning the facts which we regard as determinative of the rights of the parties. The lease containing the option to purchase, in so far as we are here concerned with its terms, reads as follows:

'This indenture, made this 19th day of August, 1903, between Anna M. Zindorf, a feme sole of county of King and state of Washington, party of the first part, and Saburo Hisamidzu, consul of the Japanese empire at Seattle, Washington, party of the second part, witnesseth:

'That the said party of the first part, in consideration of the covenants of the said party of the second part hereinafter set forth, does by these presents lease and demise to said party of the second part the following described property, to wit: * * * To have and to hold the same to the said party of the second part from the first day of September, 1903, to the first day of September, 1913.

'And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay to the said party of the first part, as rent for the same, the sum of twelve thousand ($12,000.00) dollars, payable as follows, to wit: One hundred ($100) dollars on September first, 1903, and six hundred ($600) dollars on October first, 1903, and six hundred ($600) dollars on each and every first day of October and the first day of April thereafter up to and including the first day of October, 1912, and five hundred ($500) dollars on the first day of April, 1913.

'* * * Upon the nonpayment of the whole or any portion of the said rent, or within thirty (30) days thereafter, the said party of the first part may, at her election either distrain for said rent due, or declare this lease at an end and recover possession as if the same were held by forcible detainer; the said party of the second part hereby waiving any notice of such election, or any demand for the possession of said premises. * * *

'The party of the second part waives notice of the termination of this lease under any of its provisions, and all demand for payment of rent or possession. * * *

'The party of the first part also agrees to pay all state, county and municipal taxes on said property hereby leased and all charges for local improvements now assessed against the same, but the party of the second part will pay all charges and assessments for local improvements which may hereafter he assessed against the same. * * *

'It is further agreed that the party of the second part and his assigns or successor in interest shall have the right at his election to extend said lease for a period of forty (40) years from September 1st, 1913, at a yearly rental of one ($1.00) dollar and the payment of all taxes during the period of such extension. Said election may be exercised at any time on or before September first, 1913. * * *

'It is further agreed that should the party of the second part, or his assigns or successor in interest, desire to purchase said property at any time after September first, 1913, and during the period of extension of this lease (provided the party of the second part has elected to so extend the same), the party of the first part will deed the same to him by a good and sufficient quitclaim deed for a consideration of one hundred dollars. * * *

'It is also agreed that on the first day of September, 1913, if all payments of lease money as herein contemplated shall have been made, all buildings, outhouses, improvements and movable property of every kind and character situated on said real estate herein leased shall be and become the absolute property of the party of the second part and may be removed by him, his assigns or successor in interest, within a reasonable time thereafter. * * *

'The covenants herein shall extend to and be binding upon the heirs, executors, administrators, assigns and successors in interest of the parties to this lease.'

On September 23, 1908, Anna M. Zindorf, by deed duly executed, conveyed the property to appellants, by which conveyance they became the owners thereof, subject to the rights of respondent and his predecessors in interest under the lease and option to purchase. On October 4, 1911, Hisamidzu, the lessee, duly sold and assigned to Seiichi Takahashi the lease and option to purchase. On the 22d day of August, 1913, Takahashi duly sold and assigned to the respondent the lease and option to purchase. Hisamidzu, the original lessee, and his successors in interest under the lease and option to purchase, have kept and performed all the terms and conditions on their part to be performed, including the payment of $1,447 of local assessment charges levied against the property and the payment of $11,500 of the agreed rental up until the 1st day of April, 1913, when the final installment of rent of $500 became due. In August, 1913, before the expiration of the original 10-year term specified in the lease, respondent, the then owner of the lease and option to purchase, tendered to appellants $500 in gold coin as and for the final payment of the rent due for the original 10-year period, also tendered to appellants the further sum of $100 in gold coin as and for the purchase price of the property, and served upon each of them a written notice, notifying them in substance that he had become the owner by assignment of the lease and option to purchase; that he elected to have the lease extended for the further period of 40 years as therein provided; and that he elected to purchase the property under the option given by the terms of the lease, and demanded that they execute to him a deed therefor. Appellants refused to accept these tenders or either of them, and refused to convey the property as demanded. Neither these tenders nor the execution of the deed were refused by appellants because of the insufficiency of the amount of the tender, but evidently because appellants regarded respondent's rights under the lease and option to purchase as being terminated by virtue of his default in payment of the last rent installment, and also because they regarded the lease and option as void on account of the original lessee being an alien. Up to the time of the actual making of this tender, neither appellants nor their grantor had ever in any manner declared the rights of respondent or his predecessors under the lease and option to purchase as forfeited or at an end. In the language of the trial court in its findings, they had 'never, at any time, made any declaration of forfeiture to any one, and never, at any time, did any overt act of any kind whatsoever in the way of forfeiting said lease, or indicating that a forfeiture thereof had been declared by them, or that they intended to declare a forfeiture thereof or had forfeited said lease.' There is no room for controversy as to this fact. Takahashi has, at all times, remained in possession of the property under respondent since the assignment of the lease and option to purchase to respondent, and no attempt has been made on the part of appellants to interfere in the lease with the full enjoyment of the property by respondent. Respondent claims to have tendered $1 to appellants, together with his other tenders, as and for one year's rental of the property immediately following the original 10-year period, being rental for the first year of the extended term. There being some conflict in the evidence touching the making of this tender, we shall not assume that it was actually made, since, as we proceed, we think such fact will be found to be immaterial. Respondent has kept his tender good by depositing in court, at the time of the commencement of this action, the sum of $680, being more than sufficient for that purpose.

The principal contention of counsel for appellants seems to be that the lease and all of the respondent's rights thereunder as lessee came to an end upon default of payment of the rent before the tender by him of the last installment of $500 due upon the rent of the original 10-year period, and that respondent thereby lost his right to purchase the property under the option contained in the lease. It may be conceded that respondent's right to purchase the property is dependent upon the continuation of the lease and his rights thereunder as lessee until the end of the original 10-year term, and an effective election...