title:
Levi Ankeny, Appellant vs Van Buren Clark, Appellee, Brief of Appellant
title:
578
creator:
Levi Ankeny
contributor:
B. L. Sharpstein
contributor:
J. L. Sharpstein
date:
1889-01
publisher:
Washington State Supreme Court
type:
Civil
subject:
Real Property
language:
eng
format:
application/pdf
description:
Prior History: Error to District Court, Lincoln County.Assumpsit – Pleading – Common Counts – Replication – Amendment – Vendor and Vendee – Validity of Title – rescission – Appeal – Modification of Judgment – Where plaintiff, under a contract by which defendant was to execute to him a conveyance of certain land on delivery of a quantity of wheat, evidenced by “wheat notes,” delivered the wheat, and afterwards rescinded the contract on account of failure of title, the correct form of leading, under the code, in an action to recover the value of the wheat, is the common count for goods sold and delivered, omitting all reference to the actual contract.Where the answer sets up that the wheat in question was delivered in payment of certain wheat notes, a reply setting up the contract for sale of the land, defendant’s want of title, etc., is not inconsistent with, nor a departure from the complaint.The omission to plead in the reply a rescission of the contract, which does not mislead defendant, nor affect his substantial rights, may be cured by amendment at any stage of the proceedings.A contract to sell and convey land cannot be satisfied where the title is in the United States, and the vendor has merely an equity. The vendee is entitled to a good legal title.A bond for deed being, under Code Wash. T., § 2311, an incumbrance on the land, the vendor has a right, on rescission of the contract by the vendee, to have the bond canceled.Under code Wash. T., § 475, on appeal from a judgment in favor of the vendee in an action to recover the purchase price on rescission of the contract, the court may modify the judgment by requiring the vendee, before issuance of execution, to execute a release and cancellation of the bond for deed.On rescission of a contract of sale of land by the vendee, who has been in possession, the just and reasonable rule is to offset the vendor’s claim for rent against the vendee’s claim for interest on the purchase price paid.
relation:
Ankeny v. Clark, 1 Wash. 549 (1889)
relation:
20 P. 583
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf