Webb v. Stephenson

• Decision Date: 07 March 1895
• Parties: WEBB v. STEPHENSON ET AL.
• Court: Washington Supreme Court

39 P. 952

11 Wash. 342

WEBB v. STEPHENSON ET AL.

Supreme Court of Washington

March 7, 1895

Appeal from superior court, King county; J. W. Langley, Judge.

Action by David Webb against William P. Stephenson and another to rescind a contract for the sale of land, and to recover money paid thereunder. A demurrer to the complaint was sustained and plaintiff appeals. Affirmed.

Melvin G. Winstock and Frank B. Ingersoll, for appellant.

Jacobs & Jacobs, for respondents.

DUNBAR J.

The appellant (plaintiff below) brought this action for the rescission of a contract for the sale of real estate, and for the recovery of the money paid on said contract, including taxes paid thereon. On the 4th day of January, 1892, the respondents entered into a contract with the appellant whereby they agreed to sell him two blocks or tracts of land viz. blocks 5 and 6 of Shinn's Valley Home addition to Kent, King county. The contract is short, and we will set forth the substance of it here: "It is hereby mutually agreed by and between W. P. Stephenson and Fannie Stephenson the parties of the first part, and David Webb, the party of the second part, that said parties of the first part will sell to said party of the second part, his heirs or assigns, and said party of the second part will purchase of said parties of the first part, their heirs, executors, or administrators, the following described lots (giving description), on the following terms: (1) The purchase price for said land is $3,000, of which the sum of $1,000 has this day been paid as earnest, *** and the further sum of $2,000 in three equal payments, each of which payments is to be made on or before the 4th day of January of each year for three years from the date hereof; said sum of $2,000 to bear interest at the rate of ten per cent. per annum, payable semiannually. (2) Said land to be conveyed *** to said party of the second part when said purchase price shall have been fully paid. (3) Time is the essence of this contract. (4) If said party of the second part fails to pay the whole of said purchase price and interest within the time specified, then the said parties of the first part may, if they so elect, rescind this contract, and in that case all payments made by the said party shall be forfeited. (5) Said party of the second part is to pay all taxes and assessments which may be hereafter levied upon said land,"-properly signed and acknowledged. The allegations of the complaint, after setting forth the contract, are that at the time said contract was entered into, and for some time prior thereto, defendant William P. Stephenson was the owner in fee simple of said above-described tracts of land, and that his title thereto was free from all liens or incumbrances of whatever nature, and that the plaintiff, relying upon said representations, was induced to enter into said contract; further set forth the fact that, at the time the contract was entered into, the said William P. Stephenson held the title to but one of said tracts, viz. tract 5, and that said tract 5 was at that time incumbered by mortgages, which mortgages have long since fallen due, and are still unsatisfied and liable to foreclosure; and, further, that on the 20th day of February, 1894, the defendants still further violated their obligations under said contract, and rendered impossible the fulfillment of their agreement to convey said tract 5 to plaintiff, by making a deed to said tract to one Hattie A. Range, who, the plaintiff alleges, is seeking to eject plaintiff from said premises; that, at the time said contract was entered into, the title to said tract 6 was, and still is, in one William J. Shinn. On account of these alleged fraudulent representations, the plaintiff asked the rescission of this contract.

The law seems to be well settled that it is not necessary that a vendor should be owner of the land which he sells. 2 Warv Vend. p. 766, lays down the rule thus: "That the defendant is unable to carry into execution the contract he has made affords no ground of defense in an action for specific performance, for parties may lawfully contract for the sale of property which at the time of making the agreement is not within the vendor's power to convey." This text is...