Wilt v. Buchtel

2 Wash. Terr. 417

• Court: Washington Territory
• Decided: July 15, 1885
• Status: Published

Opinion

Opinion by

Wingard, Associate Justice.

This was a civil action or proceeding to enforce specific performance, under Chapter 52 of the Code.

The complaint or petition alleges that on or about April 18th, 1869, L. C. Fuller and C. P. Ferry bound themselves by an instrument in writing, to convey certain real estate in this Territory to Joseph Buchtel, of which said real estate they were at that time owners in common.

The instrument, which is made part of the complaint, is substantially as follows : “ Know all men by these presents, that we, L. C. Fuller and C. P. Ferry, are held and firmly bound unto Joseph Buchtel of, etc., in the full penal sum of $400, for the payment of which we bind ourselves jointly and severally, our heirs, executors and administrators.

“ The condition of this obligation is such, that whereas the said Fuller and Ferry have sold unto the said Buchtel ten acres of land, at New Tacoma, in the county of Pierce, W. T.; and whereas the said Buchtel has paid to said Fuller and Ferry, for said land, $100, and agrees to pay as the purchase price thereof the further sum of $100, if within five (5) years from the date of these presents a railroad company shall permanently locate a railroad running through or terminating at said Tacoma, which sum shall become due and payable immediately upon such location.

“ Now, therefore, if upon the payment by said Buchtel of said $100, in case of the permanent location of a railroad as aforesaid, within the time aforesaid, and as soon as such location is made ; or upon such payment at any time prior to such location, or the expiration of said time ; or in case there shall be no such location of a railroad as aforesaid within said period, then on demand of said Buchtel, without further payment, the said Fuller and Ferry shall make, and cause to be made, executed and delivered to said Buchtel, his heirs, executors, administrators and assigns, a good and sufficient conveyance of said lot of land near Tacoma aforesaid, in fee simple, free from incumbrance, and with the usual covenants of warranty, then this obligation to be void; otherwise to be and remain in full force and virtue, in law and equity.”

The complaint further alleges that said Buchtel has performed all the conditions required of him, — that he paid to said Ferry the further sum of $100 on or about August the 7th, 1877.

That after making said instrument, and before making a conveyance, the said Fuller removed from Washington Territory, and died in the State of Virginia.

That on the 9th day of August, 1877, in accordance with the terms of the instrument aforesaid, the said Ferry made a deed of all his interest to said Buchtel; but that the said Fuller, his heirs, executors or administrators, have not made or caused to be made any deed, as required, to said Buchtel.

The plaintiffs in error demurred to this complaint, generally and specifically.

The Court overruled the demurrer, and the judgment overruling the demurrer is assigned as error.

It is patent upon this complaint, that the action is barred by the Statute of Limitations.

The bond or instrument was executed April 18th, 1869. No demand is alleged to have been made. The second $100 was paid August 7th, 1877, and suit was not commenced until April 18th, 1884.

Let the judgment of the Court below be reversed, and the cause remanded for further proceedings. »

We concur: Roger S. Greene, Chief J ustice.

George Turner, Associate J ustice.