Somers v. Leiser

Decision Date05 August 1953
Docket NumberNo. 32444,32444
Citation43 Wn.2d 66,259 P.2d 843
CourtWashington Supreme Court
PartiesSOMERS et ux. v. LEISER et ux.

Robert Sherwood, Bellingham, for appellant.

Brown & Millhouse, Bellingham, for respondent.

GRADY, Chief Justice.

This action was brought by respondents to recover unpaid instalments of purchase price agreed to be paid pursuant to a real estate contract. Appellants sought rescission of the contract and a return of the money paid by them. The court entered a judgment in favor of respondents and denied rescission.

On September 13, 1951 respondents and appellants entered into a written contract for the sale and purchase of real estate. Some of the real estate was part of a recorded plat and some was acreage. The platted part is the subject of this litigation. At one time there was an alley separating some of the lots shown on the plat.

In 1946 the owner of the property granted to the city of Bellingham an easement sixty feet in width for street and highway purposes including utility services over and across the platted and unplatted tracts. The conveyance was recorded. The general course of the easement followed the alley through the platted part. The middle twelve feet of the street was graveled. We cannot tell from the record what physical conditions existed that would indicate to a stranger viewing the property the true width of the easement. The one who built the garage located substantially all of it on the easement.

The contract was prepared by a real estate broker. A printed form of real estate contract furnished by a title insurance company was used. In the printed form was a space for the description of the property followed by the words 'free of encumbrances, except.' This was followed by a space for the designation of any encumbrance to which the real estate might be subject. In the contract the property was described as follows:

'Lots 1 to 18, both inclusive, Lots 28 to 36, both inclusive, and the North half of Lots 19 to 27, both inclusive, Block 12, 'Adsit and Zednick's Addition to Fairhaven, Wash.' now a part of the consolidated City of Bellingham, Whatcom County, Washington, as per the map thereof, recorded in Book 3 of Plats, page 42, in the Auditor's office of said county and state.

'Also all that portion of the Northeast quarter of the Northeast quarter of Section 13, Township 37 North, Range 2 East of W. M., lying Easterly of Pacific Northwest Traction Company's right-of-way, LESS roads, situate in Whatcom County, Washington.'

The only exception relating to encumbrances was an existing mortgage. A provision in the printed form was that the seller agreed upon full payment of the purchase price to execute and deliver a warranty deed to the property free of encumbrances except those mentioned.

The contract provided that the seller would within ten days procure and deliver to the purchaser a title policy. The policy was prepared by the title company and delivered to the real estate broker representing respondents. The broker did not deliver the policy to appellants prior to the execution of the contract, but the...

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2 cases
  • Tabet Lumber Co., Inc. v. Golightly
    • United States
    • New Mexico Supreme Court
    • July 28, 1969
    ...in accord are Evans v. Faught, 231 Cal.App.2d 698, 42 Cal.Rptr. 133 (1965); Matlock v. Wheeler, 306 P.2d 325 (Okl. 1956); Somers v. Leiser, 43 Wash.2d 66, 259 P.2d 843; Ford v. White, 179 Or. 490, 172 P.2d 822; McCarty v. Wilson, 184 Cal. 194, 193 [80 NM P. 578; Ferguson v. Edgar, 178 Cal. ......
  • Fouch v. Rollins
    • United States
    • U.S. District Court — District of Alaska
    • November 30, 1956
    ...encroached a few inches onto the property of another. The court refused rescission. And, interestingly enough, in Somers v. Leiser, 1953, 43 Wash.2d 66, 259 P.2d 843, 844, where the garage rested primarily on the easement granted to the city without actual notice to the vendee, the court re......
2 books & journal articles
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Volume 4: Causes of Action, Taxation, Regulation (WSBA) Table of Cases
    • Invalid date
    ...Snyder v. Parker, 19 Wash. 276, 53 P. 59 (1898): 9.7 Snyder v. Peterson, 62 Wn. App. 522, 814 P.2d 1204 (1991): 6.4(2) Somers v. Leiser, 43 Wn.2d 66, 259 P.2d 843 (1953): 1.5(3) Sorenson v. Czinger, 70 Wn. App. 270, 852 P.2d 1124, review denied, 122 Wn.2d 1026 (1993): 13.5(3) Sorenson v. Ke......
  • §1.5 - Effect of Encumbrances on Marketability
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Volume 4: Causes of Action, Taxation, Regulation (WSBA) Chapter 1 Marketable Title
    • Invalid date
    ...good title; nor do encumbrances of a trifling character constitute grounds for the purchaser's rejection of title. In Somers v. Leiser, 43 Wn.2d 66, 259 P.2d 843 (1953), the court held that a provision in a contract to convey real estate free of encumbrances does not refer to granted easeme......

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