State v. Superior Court for Chelan County
| Decision Date | 13 September 1929 |
| Docket Number | 21986. |
| Citation | 280 P. 350,154 Wash. 10 |
| Parties | STATE ex rel. OATEY ORCHARD CO. v. SUPERIOR COURT FOR CHELAN COUNTY et al. |
| Court | Washington Supreme Court |
Petition for certiorari by the State, on the relation of the Oatey Orchard Company, to be directed to the Superior Court for Chelan County and others, to review an order quashing service by publication in an action wherein William Joseph and another were defendants. Reversed and remanded.
Barrows & Gemmill and A. N. Corbin, all of Wenatchee, for petitioner.
Adams & Driver and C. F. Wallace, all of Wenatchee, for respondents.
An action was brought to recover the sum of $23,369.49, alleged to be the balance due for a quantity of apples sold and delivered. The defendants William Joseph and George F. Joseph are residents of the state of New York. The other defendants are residents of the state of Washington. August 17, 1927 Isenhart Orchard Company sold to William Joseph and George F Joseph a highly developed tract of orchard land in Chelan county, the purchase price of which was $75,000. This was an executory contract, and called for payments to be made from time to time. There was the usual forfeiture clause in the event that the purchasers failed to meet the payments or perform any of the conditions imposed upon them by the contract. At the time the action was instituted, the purchasers were not in default in any respect, and had paid upon the contract more than $40,000. After the contract was executed, in accordance with its terms the purchasers went into the possession of the property, and since that time have continued in possession, caring for the same, harvesting and disposing of the crops. Service upon the nonresident Josephs was attempted to be acquired by publication. At the time the action was instituted, an attachment was sued out and levied upon the property described in the contract. The Josephs, the nonresident defendants and the purchasers under the contract appeared specially and moved to quash the service and discharge the attachment. This motion was heard on affidavits, and resulted in an order quashing the service, which order presents the only question here for consideration.
The orchard company says that under the contract the purchasers had such rights that it had a right to levy an attachment upon the property described in the contract in the manner in which the statute provides for the levy of attachments upon real property. The Josephs say that the purchasers under the contract had no interest in the property which was subject to be attached as real property, and therefore the trial court properly quashed the service.
Section 659, Rem. Comp. Stat., which covers the matter of the manner of executing a writ of attachment, in part provides as follows:
It will be observed that the statute uses the words 'real property,' which have a comprehensive meaning. They include not only land and whatever is erected or growing thereon, or affixed thereto, but also rights issuing out of, annexed to, and exercisable within or about, the land. In Bouv. Law Dict., vol. 3, p. 2816, 'real property' is referred to as follows:
* * *'
Under the contract above mentioned the Josephs had a right to the possession of the land, the right to the dominion and control thereof, the right to care for, cultivate, and harvest the crops grown thereon. These are rights which do not rise to the dignity of title either legal or equitable, but which are annexed to, and are exercisable with reference to, the land, and therefore come within the designation of 'real property.'
The case of Ashford v. Reese, 132 Wash. 649, 233 P. 29 and the cases upon which that case is based, hold that the purchaser under a contract such as the one involved in this case has no title, either legal or equitable, to the land until the full...
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...(1955): 17.5(4)(g), 17.12(2) State v. Spencer, 90 Wn.2d 415, 583 P.2d 1201 (1978): 17.5(4)(g) State v. Superior Court for Chelan County, 154 Wash. 10, 280 P. 350 (1929): 22.3(4)(b)(i) State v. Taylor, 58 Wn.2d 252, 362 P.2d 247 (1961): 2.3(1)(b) State v. Wallace, 97 Wn.2d 846, 651 P.2d 201 ......
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Table of Cases
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