Pierce County v. King
| Decision Date | 01 September 1955 |
| Docket Number | No. 33288,33288 |
| Citation | 287 P.2d 316,47 Wn.2d 328 |
| Court | Washington Supreme Court |
| Parties | PIERCE COUNTY, a municipal corporation, Petitioner, v. Homer F. KING and Ida Mae King, his wife, Appellants, Clarence R. Potter and Katherine Potter, his wife, Respondents. |
Leo Teats, Ralph Teats, Tacoma, for appellants.
J. Peter P. Healy, Tacoma, for respondent.
Mr. and Mrs. Potter were the owners of lots three and four in Block 1012, Map of New Tacoma. On June 1, 1951, they agreed to sell the premises to Mr. and Mrs. King. The contract provided for a purchase price of eighteen thousand dollars, payable three thousand dollars down, and the balance in monthly installments of one hundred dollars, and no more, plus interest on the balance at the rate of five per cent per annum. The contract contained a forfeiture clause and time was made of the essence. The vendees agreed to keep the premises insured and to pay all the taxes and assessments thereon. Further, the risk of damages or destruction of the improvements on the premises was to be borne by the vendees, who were under a duty to continue their payments under the contract, irrespective of damage or destruction of the improvements. The contract contained a printed nonassignability clause, which read:
The contract also contained the following typewritten provision:
'Neither this contract, nor the lands covered by it, shall be sold nor transferred by the buyer herein, without the balance of the principal sum, and the interest to the end of the contract period, being paid in full, to the seller herein.'
The contract did not provide for the event of the taking of the property by eminent domain. The contract was not filed of record.
The vendees entered into possession of the premises and operated a business thereon. They fully performed all of their duties under the contract until April 13, 1954, when Pierce county filed a petition to condemn all of Blocks 1012 and 1013, Map of New Tacoma, which included the two lots, subject matter of the above-mentioned contract. The petition named the vendors and also the vendees as parties to the proceedings. Negotiations between the parties ensued, which led to an agreement. On November 15, 1954, a stipulation was entered into between Pierce county, the vendors, and the vendees, whereby the county agreed to pay twenty-one thousand dollars for the premises. On December 3, 1954, judgment was entered upon the stipulation, condemning the property. The sum of twenty-one thousand dollars was deposited with the registry of the Pierce county superior court.
The vendors and vendees stipulated that the vendors were definitely entitled to the balance of the purchase price ($10,700), and that the vendees were definitely entitled to the sum of $7,892.48. The difference between the whole condemnation award ($21,000) and the sum of stipulated shares of the vendors and vendees ($18,592.48) represents the interest at five per cent per annum on the balance of the purchase price for the remaining life of the contract. This sum of $2,407.52 is the subject matter of the present action. On December 10, 1954, the vendees filed a petition for distribution of the condemnation award, previously paid into court. The claim of the vendors was based on the above-quoted sale or assignment provision of the contract. The vendors argued that the condemnation constituted a sale within the meaning of the particular provision of the contract, that the sale, in effect, was made by the vendees, and, consequently, that they (vendors) were entitled not only to the balance due, but to the interest calculated at five per cent for the remainder of the contract period. The trial court awarded the interest in the amount claimed to the vendors. This appeal by the vendees followed.
Condemnation proceedings by counties are governed by Laws of 1949, chapter 79 [cf. RCW 8.08]. The statute provides for the parties necessary in such proceedings, Laws of 1949, chapter 79, § 1, p. 177 [cf. RCW 8.08.010], and reads in part as follows:
'* * * whenever the board of county commissioners deems it necessary for county purposes to acquire such land, real estate, premises or other property, and is unable to agree with the owner or owners thereof for its purchase, it shall be the duty of the prosecuting attorney to present to the superior court of the county in which said land, real estate, premises, or other property so sought to be acquired or appropriated is situated, a petition in which the land, real estate, premises, or other property sought to be appropriated shall be described with reasonable certainty, and setting forth the name of each and every owner, encumbrancer, or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records, the object for which the land is sought to be appropriated, and praying that a jury be impanelled to ascertain and determine the compensation to be made in money to such owner or owners respectively, and to all tenants, encumbrancers, or others interested, for taking such lands, real estate, premises, or other property, * * *.' (Emphasis supplied.)
We hold that, under the above statute, a vendee in possession under an executory contract is included within the meaning of terms, 'other person or party interested,' and is a necessary and proper party to condemnation proceedings. Schaefer v. E. F. Gregory Co., 112 Wash. 408, 192 P. 968, has been distinguished and explained in cases decided thereafter, and is no longer controlling.
The question of the allocation of the risk of loss as between vendor and vendee in condemnation (eminent domain) proceedings, involving real estate covered by an executory contract, has never been resolved by this court. Previous cases have dealt with certain aspects of the problem, but the basic question of where the risk of loss should fall has not been passed upon by this court. Authorities in other jurisdictions are in conflict with the majority imposing the risk on the vendee in possession; see Summers v....
To continue reading
Request your trial
-
Cascade Sec. Bank v. Butler
...456, 452 P.2d 222 (1969); a vendee is a necessary and proper party for purposes of a condemnation proceeding, Pierce County v. King, 47 Wash.2d 328, 287 P.2d 316 (1955); a vendor's interest for inheritance tax purposes is personal property, In re Estate of Eilermann, 179 Wash. 15, 35 P.2d 7......
-
In re McDaniel
...Wn. 2d 456, 452 P.2d 222 (1969); a vendee is a necessary and proper party for purposes of condemnation proceeding, Pierce County v. King, 47 Wn.2d 328, 287 P.2d 316 (1955); a vendor\'s interest for inheritance tax purposes is personal property, In re Estate of Eilermann, 179 Wash. 15, 35 P.......
-
Spokane School Dist. No. 81 v. Parzybok, 47426-5
...interest in the subject land, we had held that such a vendee has a right to participate in a condemnation award. Pierce County v. King, 47 Wash.2d 328, 287 P.2d 316 (1955). Thus, we have sought to resolve claims of this nature by examining the circumstances and the relation of the parties, ......
-
Tomlinson v. Clarke
...Wn.2d 456, 452 P.2d 222 (1969); a vendee is a necessary and proper party for purposes of a condemnation proceeding, Pierce County v. King, 47 Wn.2d 328, 287 P.2d 316 (1955); a vendor's interest for inheritance tax purposes is personal property, In re Estate of Eilermann, 179 Wash. 15, 35 P.......
-
§22.3 - The Vendor-Vendee Relationship
...of land subject to an executory contract of sale generally is viewed as a species of risk of loss in Washington. In Pierce County v. King, 47 Wn.2d 328, 287 P.2d 316 (1955), which involved the allocation of the condemnation award, not rescission of the contract, the court cites with approva......
-
Table of Cases
...King County, 71 Wn.2d 92, 426 P.2d 610 (1967), cert. denied, 401 U.S. 911 (1971): 17.6(4)(b), 17.8(2), 23.4(2)(a) Pierce County v. King, 47 Wn.2d 328, 287 P.2d 316 (1955): 22.3(1)(b)(ii) Pioneer Sand & Gravel Co. v. Hedlund, 178 Wash. 273, 34 P.2d 878 (1934): 23.4(1)(a), 23.4(2)(c) Pioneer ......
-
Real Estate Contracts and the Doctrine of Equitable Conversion in Washington: Dispelling the Ashford Cloud
...167,146 P.2d 537 (1944); Peters v. Bellingham Coal Mines, 173 Wash. 123, 21 P.2d 1024 (1933). 77. Pierce County v. King, 47 Wash. 2d 328, 287 P.2d 316 78. Culmback v. Stevens, 158 Wash. 675, 291 P. 705 (1930). 79. Committee of Protesting Citizens v. Val Vue Sewer Dist., 14 Wash. App. 838, 5......