Thill v. Johnston

• Decision Date: 27 October 1910
• Citation: 111 P. 225,60 Wash. 393
• Parties: THILL v. JOHNSTON et al.
• Court: Washington Supreme Court

111 P. 225

60 Wash. 393

THILL v. JOHNSTON et al.

Supreme Court of Washington

October 27, 1910

Department 1. Appeal from Superior Court, Thurston County; Donald McMaster, Judge.

Action by William Thill against Adam Johnston and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Thomas M. Vance and Harry L. Parr, for appellants.

Troy &amp Sturdevant, for respondent.

PARKER J.

This is an action to enforce specific performance of the following contract: 'This agreement executed in duplicate this 2d day of November, 1903, by and between William Thill, party of the first part, and Adam Johnston and Matilda Johnston parties of the second part, all of Thurston county Washington, witnesseth: That whereas on November 2nd, 1903 party of the first part and party of the second part, Adam Johnston, agreed to purchase the following described property, to wit: E. 1/2 of N.E. 1/4 and N. 1/2 of S.E. 1/4 section 14, township 16 North, range 2 West, W. M., in Thurston county, Washington, from James Swan and Stella M Swan, husband and wife, the purchase price being eight hundred dollars ($800.00) in said contract, three hundred dollars ($300.00) of which was paid down, and the remaining five hundred dollars ($500.00) to be paid on or before November 2nd, 1907, according to the term of said contract; and whereas, party of the first part and party of the second part Adam Johnston each paid one hundred and fifty dollars ($150.00) of said three hundred dollars ($300.00) paid down on said contract; now, therefore, it is mutually agreed between the party of the first part and parties of the second part that party of the first part is to have the said land above described, and parties of the second part are to have all the merchantable timber on the said land. Parties of the second part are to have six years within which to remove said timber from said premises. Party of the first part agrees for a period of six years not to clear land in and among said merchantable fir and cedar timber. After six years from date party of the first part is to have the right to clear land within the area covered by said merchantable fir and cedar timber. All timber on said premises at the end of 8 years from date is to revert to and become the property of party of the first part. Party of the first part is to pay two hundred and fifty dollars ($250.00) of the remaining portion of the purchase price of said premises on the said contract with said James Swan and Stella M. Swan and parties of the second part are to pay two hundred and fifty dollars ($250.00) of said purchase price on said contract. If said parties of the second part remove said timber at any time before November 2nd, 1907, at such time they are to pay said two hundred and fifty dollars ($250.00) required to be paid by them upon said contract with said James Swan and Stella M. Swan. At time deed of said premises is received from said Swan's parties of second part will deed their interest in land to party of first part, reserving timber therefrom, but if timber is removed before deed from Swan's then parties of second part will deed same premises to party of first part at such time. In witness whereof the parties hereto have hereunto set their hands and seals this 2nd day of November, 1903. William Thill [Seal], Party of the First Part. Adam Johnston [Seal], Matilda Johnston [Seal], Parties of the Second Part. Witnesses: P. M. Troy. A. J. Falknor.' The execution of this contract was duly acknowledged by all the parties. The deed from Swan and wife having been given conveying the land to the parties to this contract, the plaintiff demanded of the defendants a deed in compliance with its terms, and, the defendants having refused to make such deed, this action followed. A trial before the court resulted in a decree in favor the plaintiff in substance directing a conveyance of the defendants undivided one-half interest to the plaintiff, reserving to the defendants all the merchantable timber on the land with the privilege of removing the same at any time...