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(96 Wash. 284, 165 Pac. 90.) Wasco county, Oregon, upon which state. I have, therefore, prepared there was a mortgage of $1,000 to a new deed on an Oregon form, the Oregon state land board. In which I am sending herewith. Will selling appellants 25 acres of this you and Mrs. Newton please kindland, the contract provided for a ly execute this deed

and right of way 16 feet wide across the forward it to French & Company. remaining 40, since otherwise appel- I have also prepared a quitclaim lants would have no outlet to the deed for the right of way for a road public highway. In June, 1915, re- mentioned in your contract. spondents conveyed the 40-acre The 25-acre tract is covered by the tract to one Payne, subject to the state mortgage for $1,000, and bemortgage to the Oregon state land fore Mrs. Garrison can accept the board, and subject to his agreement deed from you the 25 acres must be with the appellants for a right of released from the state mortgage. way across this tract. Payne gave I do not know what the state land respondents purchase-money

board will require as a payment in mortgage for $4,200 on the land order to release this tract, but a thus conveyed to him. Some time. payment of some kind will have to in November, 1915, prior to the ma- be made. I imagine that it will not turity of the contract between ap- be less than $250, probably more pellants and respondents, the latter, than that amount.” by letter, began efforts to secure the On December 3, respondents rerelease of the 25-acre tract from the plied as follows: "I have received state land board mortgage. On No- your deeds and complied with your vember 30, 1915, the board respond. request. Now, regarding the state ed as follows: "Replying to yours

mortgage. The parties now owning of the 27th inst., in order to secure the land object to me paying off the release of 25 acres from your mort- mortgage, as they bought the land gage, it will be necessary for you to subject to the state loan. So you take the matter up with W. H. Wil- can see my position, while I am willson, of The Dalles, attorney for the ing to do anything I can to satisfy board in Wasco county, and when Mrs. Garrison. I understand the his recommendation is received as state of Oregon does not want their to the amount necessary to be paid, money, as long as the security is the matter will be submitted to the ample, and in this case there is no board for consideration."

question as to the amount of securOn the same date as the letter ity. Now, Mr. Wilson, I hope you from the board to respondents, Wil

will see your way clear to either reson, as the attorney employed by lease the 25 acres or accept the abappellants to examine the title,

stract without any payment on wrote respondents as follows:

mortgage, as the abstract is good "Yesterday Henry B. Garrison was here to close up his contract with

except a technical point.”

This letter was answered by Wilyou.

He deposited the balance due from him, namely, $535, that the board would not release the

son on December 6, to the effect in the bank of French & Company, 25 acres without a payment of some with directions to the bank to pay

kind, and suggesting that respondthe money over to you upon the re

ents pay off the whole mortgage of ceipt of a deed for the land and a

$1,000 to the state, and protect quitclaim for the right of way for themselves by taking an additional a road, and an abstract for the 25

mortgage for that sum from Payne. acres showing clear title.

This Respondents replied on December morning French & Company ad- 11, as follows: "In reply to yours vised me that they had received the of recent date will say, in answering deed. I have examined the deed, your suggestion of paying off part and I find that it is on a Washington of the mortgage, it seems as it blank, and that it is not good in this would complicate matters consider

ably, and I hope there will be some board for $1,000; also the second way found that we can get around mortgage to you for $4,000; and it this matter. As to paying the full has not been opened up to travel as amount of the mortgage, I am not required by the agreement. As I in a position to do that at present, understand Mr. Garrison, he refuses as you know money matters are a to accept either the deed for the 25 little close with all of us; and as you acres, or the deed for the right of know records show I sold that 40 way for the road, for the reasons acres subject to this mortgage to stated above." Mr. Payne, it would be very unjust Nothing further was done by reto Mr. Payne for me to foreclose spondent William Newton until afthis mortgage, which I could not do. ter his return to Seattle from a Now, Mr. Wilson, would you accept business trip to Spokane, when, on a contract from me guaranteeing January 10, 1916, he wrote Wilson and protecting Mr. Garrison in re- as follows: "I have just returned gard to the loan until I can pay off to the city and would now be very this mortgage, which I will do just glad to have this matter straightas soon as I get payments from Mr. ened up. Now, Mr. Wilson, what is Payne. You know, I am holding a 'the least payment you will accept $4,000 second mortgage on that on the state mortgage, or what will place. This contract can be made the state take in cash for the reA1. Or if I will have the 40 acres lease of the 25 acres and right of reappraised by some of the best way, leaving the mortgage as it is, citizens and farmers of your com- as a foreclosure is possible this fall, munity, and their reappraisement and I would rather deposit a cershows ample security for the $1,000, tain amoun of cash to the state will you release the 25 acres, as we

credit than affect the mortgage, on understand the matter is now up to

Mr. Payne's account. I hope you you? Of course, this will be extra will be as lenient as possible." expense to me, but I am willing to Wilson answered that the least bear this extra expense in order to payment he could recommend for adjust matters, providing Mr. Gar- the board to accept for a release rison will not accept the contract

would be $250. On January 14, reabove mentioned. Hoping one of spondent Newton wrote Garrison as the above suggestions will meet follows: "Now, in regard to that with your approval, I am.”

abstract: I want to ask you if you On December 16, Wilson wrot will not accept the abstract as it is respondents that the land board for the present, as it is absolutely would not release the 25 acres with good with only a technical point of out some kind of a payment, and on law to cloud it, and that will be rethe following day again wrote them moved and everything clear just as as follows: "Mr. Garrison objects soon as I am in a position to lift the to the title of the 25 acres which $1,000 mortgage. You understand, you sold to him because it is cov- Mr. Payne assumed the full $1,000 ered by the mortgage held by the state mortgage when he bought the state land board for $1,000, and also

40 acres, and which is on record at the property was sold for delin

The Dalles, showing that the 40 quent taxes for 1912, amounting to

acres is held for the $1,000 state $14.60. Of course, these objections loan. I hold a $4,000 as second can be overcome by your procuring mortgage, so am also responsible. a release of the 25 acres from the There is absolutely no danger to state land board mortgage, and by you. Or, to convince you of my honredeeming from the tax sale. Mr. est efforts, I will be willing for you Garrison objects to the right of way to hold back $50 or $100 until I can because the 40 acres across which lift the mortgage. Now, Mr. Garthe right of way runs is covered by rison, there is nothing gained for the mortgage of the state land you or me by holding out on these (96 Wash. 284, 165 Pac. 90.) trivial points; we could both work cation was held up until early in to better advantage if we are February because of the failure of friends and understand one another. respondents to inclose a remittance I will do anything within reason of the amount tendered for a rethat you may suggest, to show that lease. The board agreed to the reI want to do what is right, but, Mr. lease for the sum of $500, which Garrison, I am not in a position sum was forwarded by respondents just now to lift that mortgage, and upon notification, and a release duly I do want to get this matter executed on February 16, 1916. The straightened out satisfactorily to delinquent tax sale against the propboth of us. Please let me hear from erty was redeemed by respondents you at your earliest convenience re- on February 28, 1916. garding this matter."

Respecting the right of way for In response to this letter, appel- a road over the Payne 40, there was lant Garrison sent the following re- in evidence a contract between ply and notice of rescission: “You Payne and appellants, executed on evidently now wish me to pay the November 29, 1915, making provimoney and accept your deed with sion therefor to the satisfaction of the $1,000 mortgage unpaid, or the the latter. The appellants, however, land released from the mortgage, claimed that Payne's mortgage of without the right of way being $4,200 to respondents created an either selected or improved, with encumbrance upon this right of way. the $4,000 second mortgage against To obviate this, respondents exethe right of way. In other words, cuted a release of their mortgage as to take the property practically as to the right of way agreed upon by it is, and look to Mr. Payne to pay Payne and appellants, and this reoff the mortgage and improve the lease was recorded in Wasco county right of way.

In the mean

on February 16, 1916. The abstract time, on December 6, 1916, I had an of title was brought down to date opportunity to lease this property, and certified on March 3, 1916, and again on January 4, 1916; showing clear title to the property to these people I have been unable in respondents. to give any reply on account of the It will be observed that the title uncertainty about closing the deal. was not perfected until subsequent

. . In fact, you say you are ‘not to the commencement of this action in a position just now to lift that for rescission, but that the respondmortgage.'

In view of this ents, in their answer, tendered a admission on your part, and your sufficient warranty deed and abfailure to say anything about the stract, showing clear title, and right of way, its selection or im- brought the same into court. It approvement, or the delinquent taxes pears from the evidence that restill unpaid, I think it is useless for spondents were making an effort, us to go any further. It seems that beginning at a date prior to the maI have waited in vain since Novem- turity of the contract, to get their ber 29, 1915, and kept my check title in a shape to be satisfactory to good at bank since 29th of Novem- the appellants. They did not unber, for you to get busy on. I have derstand in the beginning that more waited in vain.. We have ac- would be required of them than the cordingly, in view of all these facts, securing of the release of the mortconcluded to and do hereby give you gage to the land board, and they notice that we have rescinded the were in good faith endeavoring to contract.”

accomplish that. Learning that apOn receipt of this notice of re- pellants insisted that respondents' scission, respondents at once made mortgage from Payne was an enapplication through Wilson, the lo- cumbrance on appellants' right of cal attorney for the board, for a re- way, and that the 1912 taxes were lease of the 25 acres, but the appli- a lien against the land at the date

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time of

-waiver of

-waiver of

of contract, respondents promptly title, and just as arrangements to took measures to release their mort- accomplish that object were being gage as against the right of way, brought to a head, notice of intendand to redeem from the lien of the ed rescission was given. Following 1912 taxes. They had completely closely upon the filing of the comcleared the title within two and one- plaint, respondents were able to half months of the date on which tender a perfect title so far as the appellants were entitled to a good encumbrances were concerned. and sufficient deed. The contract Their legal title had always been did not make time of its essence, perfect. and it is the rule of law in such cases We think there was a sufficient that a vendor is entitled to a reason- showing of consent to delay in per

able time in which formance to warrant the time takVendor and purchaser

to perform his con- en in which to perfect the title.

tract. Whether or There was no showperformance.

not the two and ing of injury to the performance one-half months taken by respond- appellants other reasonableness

of delay. ents to perfect their title was a rea

than their statesonable time, it is unnecessary to ment in one of their letters that decide, in view of the attitude of they would have been able to lease the parties. The appellants did not

the land if they had had perfect promptly rescind at the time when title. The land had never been octhey were entitled to performance, cupied or cultivated by appellants, but waived such right by their ac- but had evidently been bought for quiescence in the efforts of respond- speculative purposes and allowed to

ents to effect a re- lie idle. There was no proof of de

lease of the mort preciation in value between the date right to rescind.

gage encumbering for performance and the time of the land. It is true the appellants trial. The principle of law applicasked respondents to pay off the

able to the state of facts existing blanket mortgage covering another in this case is expressed in Opsjon tract in addition to that contracted v. Engebo, 73 Wash. 324, 131 Pac. for by appellants, and that, on be- 1146, as follows: "The rule is well ing informed that this could not be settled in this state that, after a done, they gave notice of rescission. vendor has waived the essence But respondents were endeavoring clause of a contract, the purchaser all the time to get the 25-acre tract

will not be in default until after a of appellants released from the

demand has been

-necessity of mortgage at the smallest outlay made upon him for demand for possible for themselves, and when a compliance with performance. they found that could not be done

his contract, and a reasonable time for less than a payment of $500 on

has elapsed in which to comply with

the demand. Whiting v. Doughton, the mortgage debt, they promptly

31 Wash. 327, 71 Pac. 1026; Dougpaid that sum.

las v. Hanbury, 56 Wash. 63, 134 That appellants were willing to Am. St. Rep. 1096, 104 Pac. 1110; grant time appears from the cross- Walker v. McMurchie, 61 Wash. 489, examination of Mr. Garrison:

112 Pac. 500. We have also held Q. After you learned that there that the time in which to perform was a mortgage of $1,000, did you a written contract may be waived or did you not consent and ap- as well as extended by parol. Whitprove of Mr. Newton's proceeding ing v. Doughton, supra. to get a release from that mortgage "The appellant, having encouras to that 25 acres of land ?

aged the prosecution of the suit to A. Yes, I did. I wanted him to.

quiet title to the lot, and having acAfter allowing the respondents a quiesced in the delay in tendering month and a half in which to clear the deed and abstract of title, was

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(96 Wash. 284, 165 Pac. 90.) not in a position to assert a breach by the evidence. The judgment of the contract upon the part of re- based thereon is affirmed. spondents, in failing to convey the lot at the time agreed upon. Colpe and Holcomb, JJ., concur.

Ellis, Ch. J., and Mount, Parker, v. Lindblom, 57 Wash. 106, 106 Pac. 634; Hawes v. Swanzey, 123 Iowa, 51, 98 N. W. 586; Bales v. William

NOTE. son, 128 Iowa, 127, 103 N. W. 150."

The question involved in the reRespondents had a cross com

ported case (GARRISON V. NEWTON, plaint in the action, asking for judg- ante, 804) as to time for performance ment for $535, the amount of final

of contract for sale of land, where the payment and interest due on the

time originally fixed by the contract contract. The appellants conceded has been waived, is the subject of the that sum was due from them if the

annotation beginning at page 815, contract should be enforced.

post. Instances of what constitutes a We think the findings and con- reasonable time are gathered at page clusions of the court are supported 826.

MIKE CARROLL

v.
MUNDY & SCOTT et al., Appts.

Iowa Supreme Court - February 19, 1919.

(
-Iowa, -170 N. W. 790.)

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Waiver - of date for abstract of title - effect.

1. The waiver by a purchaser of real estate of the agreement by the vendor to furnish abstracts of title on a specified date does not relieve him from the duty to perform within a reasonable time.

[See note on this question beginning on page 815.] Vendor and purchaser waiver of - tender of performance. date for abstract.

5. A purchaser of real estate is un2. One contracting to purchase real der no obligation to tender the purestate on a specified date, upon which chase price until the vendor has comhe shall receive an abstract showing plied with his undertaking to furnish title in the vendor, consents to an ex- an abstract showing merchantable tension of time by returning the ab- title in himself. stract tendered him to the vendor, Rescission failure to furnish abwith objections, after the date speci

stract of title, fied.

6. A purchaser of real estate has a Contract performance reason- right to a rescission of the contract able time.

where the vendor has delayed for two 3. Where no time is fixed in the con

years to furnish, as agreed, an abtract or by agreement for the doing of

stract showing merchantable title in a thing contracted for, the law re

himself. quires it to be done within a reasonable time.

- allowance for improvement. [See 6 R. C. L. 896.)

7. One who enters into possession Vendor and purchaser - when consid

of real estate under a contract of pureration due.

chase which subsequently fails be4. The consideration named for a cause of the vendor's inability to perconveyance of real estate does not be- fect title may be allowed the value of come due until the vendor has per

improvements placed by him upon the formed all the conditions upon which land while he is in possession, as an his right to the consideration rests. offset against the rental value.

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