Stein v. Waddell

• Decision Date: 27 March 1905
• Citation: 37 Wash. 634,80 P. 184
• Parties: STEIN et al. v. WADDELL et ux.
• Court: Washington Supreme Court

80 P. 184

37 Wash. 634

STEIN et al. v. WADDELL et ux.

Supreme Court of Washington

March 27, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by Henry W. Stein and another, as executors of C. A. White deceased, and others, against Albert Waddell and wife. From a judgment for plaintiffs, defendants appeal. Reversed.

Will H Thompson and Victor E. Palmer, for appellants.

Charles E. Patterson, for respondents.

RUDKIN J.

On the 3d day of February, 1903, the plaintiffs and the defendants Waddell and wife, entered into a contract for the sale of real estate, the material parts of which are as follows:

'That if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned, on his part to be made and performed, the said parties of the first part hereby covenant and agree to convey by a good and sufficient warrantee deed, guaranteeing property free from all mortgages, taxes, judgments, liens or any other incumbrance, the following lots, pieces or parcels of land, situated in the county of King, state of Washington, and more particularly described as follows, to wit: [Here follows description.]

'And the said party of the second part hereby covenants to purchase said land and agrees to pay to said parties of the first part the sum of Twenty ($20,000.00) Thousand Dollars, in the manner following: Five thousand ($5,000) dollars upon the delivery of these instruments properly signed, sealed and acknowledged; five thousand ($5,000) dollars more on or before August 3rd, 1903; ten thousand ($10,000) dollars more on or before February 3rd, 1904; making a total of twenty thousand ($20,000) dollars, the full amount of the purchase price.

'The parties of the first part hereby agree with the party of the second part that they will upon the payment of $10,000.00 give a warranty deed and take a note and first mortgage for the balance due; namely, $10,000.00, said note and mortgage to be due and payable on or before February 3rd, 1904. Parties of the first part hereby agree that second party shall have the right to plat said tract of land into an addition, and upon the payment of the sum of $225.00 per lot they hereby agree to release any lot in said tract when platted, from the lien they now hold against said tract. All payments which are to fall due after the execution of this instrument, to draw interest at the rate of seven (7) per cent. per annum, payable semiannually on each of said installments until the full payment thereof; second party to pay all taxes, assessments and impositions that may be legally levied or imposed upon said lot; and in case of failure of the said party of the second part to make either of the payments or perform any of the covenants on his part, this contract shall be forfeited and determined at the election of the said parties of the first part; and the said party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by him sustained; and they shall have the right to reenter and take possession of said land and premises and every part thereof.

'It is mutually agreed that time is and shall be the essence of this contract and that all covenants and agreements herein mentioned shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.'

The defendants, Waddell and wife, paid on account of this contract the sum of $5,000 at the time of its execution, and thereafter paid the sum of $900, in installments of $225, at various times; the last installment being paid on the 18th day of September, 1903. On the 10th day of October, 1903 this action was commenced for the purpose of declaring a forfeiture of said contract. Among the grounds of forfeiture were the nonpayment of the balance of the $5,000 due August 3, 1903, with interest; the nonpayment of taxes; an execution sale of the interest of the Waddells in the property on a judgment in favor of a third party; the filing of numerous liens against the property by third parties who had performed labor and made improvements at the instance of the Waddells; agreements on the part of the Waddells to sell portions of the land, etc. It was not claimed that any taxes had been allowed to accumulate against the property after the sale and before the commencement of the action, and it cannot be seriously claimed that the other matters above referred to constituted any breach of the contract of sale. The Waddells agreed to pay all taxes, assessments, and impositions that might be levied or imposed upon the property; but this covenant is clearly limited to impositions which would be a charge against the vendors' interest in the property, and was not a covenant that the purchasers would pay their own debts, or discharge obligations for which they and their interest in the property were alone liable. The complaint alleged that the interest and claim of the plaintiffs were paramount to all the claims above set forth, and the court so found. This is unquestionably true, so that the only breach of the...