Swanson v. Anderson

• Decision Date: 31 December 1934
• Docket Number: 25139.
• Citation: 38 P.2d 1064,180 Wash. 284
• Parties: SWANSON v. ANDERSON et ux.
• Court: Washington Supreme Court

38 P.2d 1064

180 Wash. 284

SWANSON v. ANDERSON et ux.

No. 25139.

Supreme Court of Washington

December 31, 1934

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by A. L. Swanson against J. C. Anderson and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

G. E M. Pratt and Bennett Hoffman, both of Seattle, for appellants.

Phil G Warnock, of Everett, for respondent.

STEINERT, Justice.

This is an action to forfeit a real estate contract and to regain possession of the land described therein. The answer, by way of affirmative defense, asserted a claim of homestead. Trial by the court resulted in a judgment forfeiting the contract quieting plaintiff's title in the land and awarding him the right to immediate possession thereof. The defendants have appealed.

On November 20, 1929, respondent sold to appellants a piece of improved real estate under written contract, according to the terms of which appellants made a substantial initial payment assumed an existing mortgage, and agreed to pay the remainder of the purchase price in monthly installments. Appellants also assumed and agreed to pay, Before delinquency, all taxes and assessments. Time was made the essence of the contract.

On March 2, 1931, appellant husband filed a declaration of homestead on the land. On March 11, 1931, appellants, as a marital community, were adjudged bankrupt. On April 18, 1931, the bankruptcy court, by order, set aside as exempt certain property of appellants, including their equity, valued at $400, in the above real estate. On October 26, 1931, appellants obtained their discharge in bankruptcy.

On August 1, 1933, appellants were delinquent on their contract in the sum of $201.50, principal and interest, and $191.04 for delinquent and unpaid taxes. Respondent served notice of forfeiture upon appellants, the same to become effective September 3, 1933, unless the sums due were paid on or Before that date. Appellants having failed to make any payment, this action was begun, with the result already stated.

Under appellants' assignments of error, two contentions are made: (1) That appellants were entitled to a homestead in the land, by virtue of their prior declaration; and (2) that the order of the bankruptcy court was res adjudicata upon the question of homestead.

That a vendee in possession of real property under an executory contract to purchase may claim a homestead therein is well settled in this state. Desmond v. Shotwell, 142 Wash. 187, 252 P. 692; Perkins v. LaVarne, 171 Wash. 240, 17 P.2d 857; Hancock Mutual Life Ins. Co. v. Wagner, 174 Wash. 185, 24 P.2d 420, 27 P.2d 1118. The right of homestead, however, does not exist after the right of possession is lost, and the right of possession ceases when the contract is lawfully terminated.

'The homestead right is lost with the loss of the rights of the purchaser under his contract for the purchase of land. It may be lost by a forfeiture of the vendee's rights under the contract of purchase and ejectment for failure to make the several payments stipulated in the agreement, or where the contract not only has not been complied with, but has been abandoned because of inability to pay the purchase money.' 29 C.J. 945, § 153 (e).

See, also, Snodgrass v. Parks, 79 Cal. 55, 21 P. 429; Alexander v. Jackson, 3 Cal. Unrep. Cas. 344, 25 P. 415; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245.

Appellants seek to justify their position upon the theory that a contract or bond for a deed is virtually the same as a mortgage....