State v. Meador

• Decision Date: 21 September 1962
• Docket Number: No. 36156,36156
• Citation: 374 P.2d 546,60 Wn.2d 543
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Emanuel E. MEADOR et al., Respondents, H. P. Clausing et al., Appellants.

Page 543

60 Wn.2d 543

374 P.2d 546

The STATE of Washington, Petitioner, v. Emanuel E. MEADOR et al., Respondents, H. P. Clausing et al., Appellants.

No. 36156.

Supreme Court of Washington, Department 2.

Sept. 21, 1962.

Rehearing Denied Nov. 16, 1962.

Cook, Flanagan & Berst, George S. Cook, Seattle, for appellants.

Moschetto & Alfieri and John Spiller, Devin, Hutchinson & Rolfe, Seattle, for respondents.

HAMILTON, Judge.

Appellants Clausing and wife and Deer and wife appeal from the apportionment of a condemnation award. The judgment denies appellants any portion of the award, from which they appeal.

The facts may be summarized as follows:

Respondents Di Pietro and wife are fee owners of the property, a building and the land on which it is situated in King County.

In June, 1953, Di Pietro leased the north portion of the building for a term of ten years, which lease was subsequently assigned to respondent Kelly's Drug, Inc. In June, 1956, Di Pietro leased the south portion of the building to Kelly's Drug, Inc., for a term of ten years. In August, 1956, respondent Kelly's Drug, Inc., leased the south twenty-one feet of the building to Finnell for a term ending in 1965 at a monthly rental of $125, which sublease was assigned to the appellants Clausing and Deer in August, 1956. Clausing and Deer improved the leased portion of the building so that it might be used as a medical clinic. In November, 1956, upon completion of the improvements, the space was leased back to Finnell for a term ending in 1965, at a monthly rental of $250. Finnell's subtenant vacated the premises in June, 1960, and surrendered the key to Clausing. One hundred dollars of the rent was paid on June 1, 1960, by Finnell's subtenant, but since then no rent has been paid. The lease from Clausing and Deer back to Finnell reserved a right of re-entry for conditions broken.

The last portion of the condemnation award and interest thereon was deposited into the registry of the court by the state on January 10, 1961.

The court held that the appellants, Clausing and Deer, leased to Finnell for the full term, which they had acquired by assignment, for which reason Clausing and Deer had no claim upon the condemnation award. A transfer of a lessee's entire interest in the premises for the balance of the term, leaving no reversionary interest in the lessee, constitutes an assignment and not a sublease. Gazzam v. Young, 114 Wash. 66, 194 P. 810; Sheridan v. O. E. Doherty, Inc., 106 Wash. 561, 181 P. 16; Hockersmith v. Sullivan 71 Wash. 244, 128 P. 222; Weander v. Claussen Brewing Ass'n, 42 Wash. 226, 84 P. 735; McLennan v. Grant, 8 Wash. 603, 36 P. 682. A right of re-entry for condition broken is not a reversionary interest and thus, although a right of re-entry for condition broken is retained, a transfer of the balance of a lessee's term still constitutes an assignment. Sheridan v. O. E. Doherty, Inc., supra.

This, however, is not decisive of the rights of appellants Clausing and Deer.

The return of the key and relinquishment of the possession of the premises by Finnell's subtenant to Clausing constitutes a peaceful re-entry by Clausing. Even though the transfer by appellants Clausing and Deer constitutes an assignment, the right of re-entry for condition broken is valid and enforceable. 1 Tiffany, Real Property (3d ed., 1939), 305, § 190; Kostakes v. Daly, 246 Minn. 312, 75 N.W.2d 191; Davidson v. Minnesota Loan & Trust Co., 158 Minn. 411, 197 N.W. 833, 32 A.L.R. 1418.

No rent was paid after June, 1960, which was prior to the acquisition of the state's title. Because the agreement between appellants Clausing and Deer with Finnell provided for the right of re-entry for failure to pay rent, Clausing and Deer acquired an interest in the property prior to the...