VENDOR AND PURCHASER-WANT OF TITLE IN VENDOR.

Where a grantor in a deed with covenant of seisin has neither title to nor possession of the land described, the grantee may immediately on discovering such facts sue for the price paid, though the grantor has in the mean time acquired title to the land.

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by C. M. Rombough against Gerow Koons and Mary Koons to recover money paid to defendants for land to which they had no title. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Hyde, Glass & Reagan, for appellant. Dawson & Platton, for respondents.

STILES, J. Appellant brought an action to recover the sum of $1,600 from the respondents, being the consideration paid in part by himself, and in part by his as signor, Savage, for several deeds of real estate, in Douglas county. These deeds were in the usual form of warranty deeds, and contained a covenant of seisin in fee, and the facts appearing by the record are as follows: One Mauntell and wife were the owners of three certain 10-acre tracts of land, and in December, 1891, they made a contract with the respondent Gerow Koons under which they agreed that if he would survey these tracts into town lots, and prepare plats, which they contracted to execute, and would file the plats at his own cost, advertise the property for sale, and sell the lots, they would upon his demand execute deeds for as many lots as he might sell at the price, to him, of eight dollars each. One clause of the contract was that the complete title of said real estate should remain in the Mauntells until the lots were paid for by Koons. Whether any plats were executed by Mauntell and wife is not shown, but it does appear that Koons had a plat or plats in his office in Spokane, from which he claimed to sell various lots. No survey was made until after this suit was commenced. Between the 1st of January and the 1st of April, 1892, respondents made the deeds in question to the appellant and Savage, conveying a number of lots to each of them. About the 1st of April, 1892, it was discovered by appellant and Savage that respondents had no title whatever to any of this property, and they tendered back their

deeds, and demanded the repayment of the purchase money paid in the sum of $1,600, which was refused. Savage assigned his cause of action to the appellant, and this suit was brought. Subsequent to the commencement of the action, the respondents obtained from Mauntell and wife a warranty deed covering all the lots described in the deeds to Rombough and Savage, and at a later day a survey of the property into lots and blocks was made. The property was at no time in the actual possession of any per

son.

The contention of the appellant is that a right of action accrued to him immediately upon the execution and delivery of his deeds, because of the covenant of seisin therein, which he maintains is what is known to the law as a "covenant in praesenti," giving him immediate right to the recovery of his purchase money; while, on the other hand, the respondents maintain that the covenant of seisin is a real covenant, which runs with the land, and passes to the assignee thereof, and does not become available until there has been an eviction by the owner of the paramount title. The respondents maintain also that inasmuch as they were in possession of this land, constructively of course, and by their deed passed the same possession or right of possession to their grantee, the covenant of seisin was satisfied for the present at least, and they especially urge that in such a case the after-acquired title inured to the benefit of their grantee, who at the most was entitled to only nominal damages. The superior court seems to have taken the respondents' view of the case all through, and so charged the jury that the result was a finding for the defendants, nominal damages, even, not having been awarded. In this position we think the court committed error. With the controversy which has long been waged before various courts as to whether the covenant of seisin is a personal covenant in praesenti, or a real covenant running with the land, we shall not now attempt to engage. In our judgment, it is not material in this case, for the universal holding of all courts seems to be that where the grantor is neither in possession, nor has any right of possession, at the date of his deed, the covenant of seisin confers upon the grantee an immediate right of action, and the only question which has divided courts in such a case is as to whether an after-acquired title can in any wise estop the grantee from maintaining his action, and recovering the purchase money paid as his damages. It is generally agreed, however, that, where the title has been thus acquired before suit brought, the damages can only be such as have been actually suffered by the grantee. But there is another divergence among the courts in cases where the title is acquired after the action has been commenced. It is a general rule that such a title inures to the prior pur chaser by warranty or bargain and sale

deed, and, in those states where it is held that the after-acquired title absolutely passes, it is considered that only actual damages can be recovered, even though the ac tion be commenced before that time; but where it is held that the title inures only by estoppel, as against the grantor and his heirs and subsequent grantees with notice, the rule is the other way, and it is held that the grantee has his election whether he will take the title or will recover the money paid. The latter view is sustained by far the greater number of the authorities, and it seems to us is the better rule, inasmuch as, under our registration laws, the first grantee might retain his deed unrecorded, and a subsequent grantee would suffer by reason of the fact that he could never know until the decease of his grantor whether he might not at some time have executed another deed, which, by relation, would take effect before his own. In these days of quick dealing with real property, it has grown to be necessary in the eyes of the courts to do away with many of the technicalities pertaining to titles. Property is exchanged rapidly, and it is bought and sold entirely with a view to its quality of quick and safe transfer. A buyer who pays his money and takes his deed expects, and has a right to expect, that, upon that instant the full title will pass to him, and nothing else will satisfy the contract which it is the intention of the parties in by far the greater majority of the cases to make. In this case, even admitting that the respondents had the possession of these lots, and that the appellant succeeded to their possession, there can be no question but that the contract they intended to make by the deed would not be satisfied by the existence of the fact that respondents might some day receive the title under their contract with the Mauntells; and, although the court submitted the case to the jury solely upon the question of possession, we find no evidence in the record tending to support any possession whatever. Koons' contract with the Mauntells gave him no possession, for at most he had a license to enter upon the land for the purpose of making a survey, and to show it to purchasers. This was a license merely, and gave him no right to take possession either as tenant or as purchaser. The terms of the contract retaining the entire title in Mauntell and wife until the money for which they contracted had been paid emphasized this fact. There was other evidence tending to show that neither Koons nor any one else was in possession, or had ever thought of taking possession, of the lots. In fact, they were lots which had no real existence except upon the plat hanging in his office. The authorities upon the propositions which we have stated are well summed up In McInnis v. Lyman, 62 Wis. 191, 22 N. W. Rep. 405; Fritz v. Pusey, 31 Minn. 368, 18 N. W. Rep. 94; Shattuck v. Lamb, 65 N. Y. 499; and particularly in Resser v. Carney,

(Minn.) 54 N. W. Rep. 89. We think it was the duty of the court to adopt the course here indicated, and that there should be a new trial. Judgment reversed and case remanded.

DUNBAR, C. J., and HOYT, ANDERS, and SCOTT, JJ., concur.

CLOUD V. RIVORD et al. (Supreme Court of Washington. June 27, 1893.)

PROMISSORY NOTES-MATURITY—INTEREST-ATTORNEYS' FEES.

1. Attached to a note payable on a certain day were interest coupon notes, and the note provided that, if any interest should remain unpaid after due, the principal note and interest coupons should become due and payable at once, at the option of the holder. Held that, on de fault of payment of one of the interest coupons, the holder could recover only the amount of the face of the note, with the interest coupon as to which the maker was in default, and he could not recover on the coupons not due, as they represented interest which would accrue only in case the note continued to run.

2. A note bearing 10 per cent. interest per annum from date until maturity, and 4 per cent. per month after maturity until paid, with interest coupon notes attached, provided that, if any interest should remain unpaid after due, the principal note should, at the option of the holder, become due and payable at once, without notice. Held, that such note would not bear 4 per cent. per month until it became due by its terms, though before that time the holder declared it due for nonpayment of an installment of interest.

3. Where a note contains a promise to pay an attorney's fee in case an action is brought on it, the holder is not restricted to the statutory attorney's fee, but may recover a reasonable amount therefor.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by J. A. Cloud against Jacob Rivord and Clestine Arquet Rivord to recover on a note and certain interest coupons, and to foreclose a mortgage on real estate given to secure the note. Plaintiff claimed that he was entitled to interest on the $400, at 4 per cent. per month from time of bringing suit; also for the balance of the eight unpaid coupons of $20 each, amounting to $160, with interest thereon at the rate of 4 per cent. per month from date of bringing suit, April 6, 1892; also $17.07, with interest on same from February 29, 1892; also $50 attorneys' fees,-as alleged in the complaint proven on the hearing, and provided in note and mortgage. The court refused his demand for judgment, and allowed him $400, with interest thereon from date of commencement of suit, April 6, 1892, at 10 per cent.; also the $17.07 paid as taxes, with interest from date of payment, February 29, 1892, at 10 per cent; and $20, amount of coupon due January 1, 1892, before bringing suit, with interest on same at 4 per cent. per month. Plaintiff appeals. Reversed.

The note was as follows: "On the first day of July, A. D. eighteen hundred and ninety

five, without grace, for value received, we promise to pay to the order of J. A. Cloud, of New York, the sum of four hundred ($400.00) dollars, with interest thereon at the rate of 10 (10) per cent. per annum, payable semiannually on the first days of January and July in each year, according to the tenor and conditions of ten (10) interest notes of even date herewith and hereunto attached, both principal and interest payable only in United States gold coin, at any place J. A. Cloud directs, with New York Exchange. If any interest shall remain unpaid after due, this principal note and the interest coupons shall become mature, due, and payable at once, without further notice, at the option of the holder hereof. This note shall bear interest at the rate of four (4) per cent. per month after maturity, and, if suit or action shall be brought to collect principal or interest, we promise to pay a collection and attorney's fee, in said suit or action, which fees shall be taxed as the 'attorney's fee' in the judgment recovered; and we further agree to pay all taxes and assessments which may be levied or assessed to the holder of this note on account thereof. This note is given for an actual loan of the above amount, and is secured by a mortgage of even date herewith, which is a first lien on the property therein described. Dated at Sauk City, Skagit Co., Washington, this seventh day of August, A. D. 1890. All erasing and interlining done before signing. Jacob Rivord. [Seal.] Cles

ber

tine Arquet X Rivord. [Seal.] Witnesses

mark.

at signing: Norman W. Smith. John Williams."

Attached to the note were 10 coupon interest notes, in the following form: "$20.00. Interest Note. No. 27. Mount Vernon, State of Washington, August 7, A. D. 1890. On the first day of [date of payment,] for value received, we promise to pay to the order of J. A. Cloud, without grace, twenty dollars in United States gold coin, at any place J. A. Cloud directs, with current rate of exchange on New York city, said amount being interest on a principal note of $400.00, of even date herewith. This note bears interest at the rate of four per cent. per month after maturity. Coupon No. Rivord. [Seal.]"

Jacob

The mortgage is in usual form, and includes this clause: "It is further agreed, that time shall be material, and the essence of this contract; that, if default be made in the payment of said note, or of any interest coupons, or any part thereof when due, in procuring insurance, paying taxes, or in keeping and performing all covenants herein contained, then said note and all of said interest coupons shall, at the option of the owner thereof, become at once due and collectible, without further notice, and suit may be commenced at once in foreclosure of this indenture, and said fees shall be paid by said first party,

if suit be settled before judgment. And, in case the note or coupons secured by this indenture shall not be paid when due, they shall draw interest at the rate of four (4) per cent. per month from maturity until paid."

Million & Houser, for appellant.

DUNBAR, C. J. This is an action to foreclose a mortgage on real estate, which was given to secure a note for $400 given August 7, 1890. The note was made payable on the 1st day of July, A. D. 1895, and bears interest at the rate of 10 per cent. per annum, with a provision that it shall bear interest at the rate of 4 per cent. per month after maturity. The interest is provided for in the shape of coupon notes of $20 each, attached to the principal note. Each coupon or interest note provides that it shall bear interest at the rate of 4 per cent. per month after maturity. The note also provides that, if any interest shall remain unpaid after due, the principal note and interest coupons shall become mature, due, and payable at once, without further notice, at the option of the holder. There is also a promise to pay an attorney's fee in case of suit or action to collect the principal or interest. The third coupon note was not paid at maturity, and plaintiff brought his action to foreclose, asking judgment for $579.20, which, if we understand the complaint, represents the face of the note and all the coupon notes not paid, together with interest on the same at the rate of 4 per cent. per month from date of filing the complaint, together with an attorney's fee of $50, and $17.07 taxes paid, (concerning which there is no dispute.) The court refused to allow the demand for an attorney's fee, and rendered judgment for $400, with interest on the same at the rate of 10 per cent. per annum from April 6, 1892, the date of the commencement of the action, and for $20, the amount of the coupon note due, with interest on the same at the rate of 4 per cent. per month from the time it became due; also for costs, including statutory attorney's fee. From this judgment the plaintiff appeals, and urges that he should have judgment for the coupon note not due, with interest on the face of the principal note at the rate of 4 per cent. per month from the date of the filing of the complaint, and for an attorney's fee of $50.

Inasmuch as the coupon notes not due simply represent the computed interest up to the time when the principal note would become matured by time, it is very evident that the consideration for such notes failed when judgment was obtained for the principal, and plaintiff would under no principle of law or ethics be allowed to recover both the use of the money and the money which represented its use, and the court very properly refused this demand.

So far as the contention of the appellant

is concerned, that, under the terms of the note, he should be allowed interest on $400 at the rate of 4 per cent. per month from the date of filing the complaint, we have to say that while it is true that the note provides that, if any interest shall remain unpaid after due, the principal note and interest coupons shall become matured, at the option of the holder, yet, construing all the provisions of this note together, we think that the provision, "This note shall bear interest at the rate of 4 per cent. per month after maturity," was inserted with reference to the maturity of the note first expressed, namely, the 1st day of July, 1895, the time when the money became due. This construction is strengthened by the fact that the interest up to that day is made definite and certain, and fully and separately provided for by the coupon interest notes attached; and the judgment of the court in respect to the interest was right. We think, however, that the language used in the note and mortgage, viz. "If suit or action shall be brought to collect principal or interest, we promise to pay a collection and attorney's fee in said suit or action, which fee shall be taxed as the attorney's fee in the judgment rendered," must be construed to be a promise to pay a reasonable attorney's fee; and, as the plaintiff alleged and proved that $50 was a reasonable attorney's fee in this case, he is entitled to a judgment for that amount. The cause will therefore be remanded to the lower court, with instructions to modify the judgment to the extent of allowing appellant the difference between the statutory attor ney's fee allowed by the court below and an attorney's fee of $50. The appellant will be entitled to his costs in this court.

KLEEB v. BARD et al. (Supreme Court of Washington. July 13, 1893.)

CONTRACT OF SALE-ACTION FOR BREACH-INTERPRETATION LICENSE TO OCCUPY LAND - How GRANTED.

1. In an action for breach of a contract of sale, whereby plaintiff agreed to convey and transfer to defendant, at a certain date and for a consideration named, certain described property, an allegation by plaintiff that he owned such property at the date of the contract is immaterial.

2. A contract giving one a license to occupy land for such time and in such manner as is required to remove the merchantable timber thereon, to build and operate a sawmill on the land, and to remove the sawmill after the manufacture of the timber, is not a conveyance of an interest in land, within the meaning of Gen. St. § 1422, requiring such conveyances to be by deed.

3. The fact that a contract for the sale of certain engines located at certain places, which the purchasers have seen and approved, de scribes them as of certain horse powers named, does not render the seller liable in damages if

they prove to have less than such named capac ities, such averment being treated as mere matter of description.

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by John W. Kleeb against Frank M. Bard and H. C. Patrick for breach of contract. From a judgment for plaintiff, defendants appeal. Modified.

Ira A. Town and W. W. Likens, for appellants. Govnor Teats and Parsons, Corell & Parsons, for respondent.

STILES, J. 1. The appellants now complain of the action of the superior court be cause of the manner in which it permitted the respondent to amend his complaint under the direction of this court in Bard v. Kleeb, 1 Wash. St. 370, 25 Pac. Rep. 467, and 27 Pac. Rep. 273. The new complaint showed that the property covered by the contract had been delivered to the appellants, and had been by them resold to third parties; that a tender of a conveyance, in writing, had been made to them; and that the sum unpaid under the contract had fallen due long before the date of the pleading. All of these matters could have been covered by the original complaint had the facts now stated been past events, and the respondent would have had his choice either to foreclose the lien agreed to be given to him through a mortgage, or to have his judgment generally against the appellants. The latter course is now forced upon him, since the appellants have put it out of their power to make the mortgage for which their contract called. Moreover, as was said in the former decision, all parties have from the beginning treated this as an action at law for money, and not as an equity case, and they are bound by their action.

2. A vast amount of the trouble in this case has grown out of the attempt of the appellants to bind the respondent to a conclusion of law unnecessarily stated in his complaint, viz. that at the date of his contract he was the owner and possessor of certain property, the subject of the contract. But even if taken as a statement of fact, rather than law, this allegation was not material. Respondent, on the 8th day of October, 1888, contracted that on the 20th day of that month he would convey and transfer certain property to the appellants, but it was nobody's concern but his own whether at that time he owned any part of it or not. If, when the time came for the performance of the agreement, he was able to perform, the appellants could not complain.

3. The next complaint is that the contract called for the title to the three parcels of standing timber mentioned, which was not forthcoming. Against this, the respondent contends that he was only to convey his right, title, and interest, whatever it was,substantially a quitclaim. The materiality

of this contention is that the owner of one tract (Perry) refused to permit the appellants to take any timber under the agreement made with respondent. The owner of the second tract (Guilliams) delivered a portion of the logs contracted for, and then refused to deliver any more, on the ground that his contract was a merely verbal one, which he could break at his pleasure; and the third tract (Morrill) fell 240 acres short. The contract clearly showed that the Perry and the Guilliams timber was not undertaken to be sold at all, but that, in substance, an assignment of the rights of the respondent under his agreements with the two landowners was to be made, for it was recited that these parcels of timber were to be "transferred according to the contract now existing between me and" the two owners, and the appellants bound themselves to carry out these contracts. As to the Morrill tract, the language of the contract was different, being. "All the cedar timber now on Sec. 27," without any qualification or reference to any other contract. Respondent's title to the cedar on 400 acres of section 27 is not, however, assailable, for at all times when he was required to have the title to that much of it he had it by deed of warranty, and no showing is made of any infirmity in this deed whereby no title passed. As to the Perry tract, conceding that an executory contract to sell standing timber to be cut and removed by the purchaser is a contract for the sale of an interest in land, and therefore within the statute of frauds, (1 Warv. Vend. p. 175; Owens v. Lewis, 46 Ind. 488,) still we are unable to see why the contract which re spondent held from the Perrys did not meet this requirement. True, it was not a deed, but it is not necessary that a contract to sell land as such be a deed. The terms of this instrument showed that it was intended to be merely a license to occupy the land for such time and in such manner as should be required to remove the merchantable timber therefrom, with the right to take the timber at 50 cents per thousand feet, to build and operate a sawmill, to use the water privileges on the land in connection with the mill, and to remove the mill after the timber had been manufactured. Neither the land, nor any interest in the land as land, was contemplated; but the timber was the principal subject-matter of the contract, to which all the other uses to which the land might be put were incidents. Nothing in this contract created any exclusive right in the grantee to occupy the tract. On the contrary, both parties to it might have been exercising dominion over the whole of it at the same time, the Perrys in every way not inconsistent with the prosecution of the lumbering business by the respondent, and the latter in every way necessary to his business. These considerations, it seems to us, take such cases out of the purview of Gen. St. § 1422, which prescribes that conveyances of lands or interests therein

shall be by deed. Therefore, although, when the appellants proposed to go on with the Perry contract, they were forbidden to enter upon the land, or cut any timber, on the ground that their contract had expired or been forfeited, it remained that it had not expired or been forfeited, and they could have been compelled to execute it; so that appellants were not released from their agreement with respondent by any such acts of hostility. The Guilliams contract was an entirely different matter. That was an agree ment on Guilliams' part to cut down all the cedar timber on his land, and deliver the logs to respondent at his mill, at $4.50 per thousand feet. It was a merely verbal contract, but it respected the sale of chattels only, viz. logs; and, as a considerable portion of the contract to sell had already been performed, there was a full compliance with the statute of frauds in that instance. Owens v. Lewis, supra; Smith v. Surman, 9 Barn. & C. 561. When appellants took possession of the mill, Guilliams continued to deliver logs to them under his contract with respondent, and then refused further delivery, because his contract was merely a verbal one. He should have been required to go on, or respond in damages. But in neither the Perry nor the Guilliams case was respondent at fault. He sold and delivered the mills, and put the appellants in the same position with respect to his contracts with those men which he occupied. Appellants, without waiting to receive a conveyance in writing, (if one was necessary,) and without paying the cash agreed to be paid, took possession, and in every way put themselves in the wrong as far as a refusal to pay the price agreed upon was concerned; and, finally, they sold out the whole property at a large advance. Such property as they took they must pay for, all the troubles about tenders of payment on the one part, and of papers on the other, having been obviated by the acceptance of the property by the appellants, and their going into possession.

4. The contract called for two engines, one of which was described as a portable sawmill engine, of 18 horse power, and the sawmill, etc., situated at a certain place; and the other was a 40 horse power engine and boiler, etc., at another place. Appellants counterclaimed for damages, under the allegation that the engines were of only 10 and 18 horse power, respectively, and that the respondent had guarantied them to be of the larger horse power mentioned in the contract. They further alleged knowledge on the part of respondent that appellants were desiring to buy engines for certain work, which could not be done unless they had 18 and 40 horse power, respectively, and that he represented that they would do that work. Damages were laid at $2,500; but, upon the trial, there was an entire failure to prove any representations as to what work the engines were capable of. Much