Mayer v. Herrin

Mallery, J. This is an action commenced in 1950 for specific performance of an oral contract to dedicate land for a private park and bathing beach. • The plaintiff bought “Lot 4, of Tembreulls’ Lake Lucerene Div. No. 1, located in the NW % of Sec. 28, Twn. 22, N. R. 6 E. W. M.,” in King county, Washington, from the partnership of G. A. and R. D. Tembreull, in December, 1944. During the negotiations for the purchase, the partnership orally promised that all of the property immediately in front of, and between “Tembreulls’ Lake Lucerene Div. No. 1” and' Lake Lucerne, which was then being cleared and bulldozed, would be granted and conveyed for the sole usage of the purchasers of the lots in the aforementioned division, subject to the future control of the partnership. The value of the land without this covenant would have been materially less. Indeed, it is a fair inference that without it the sale would not have been made or the property improved. [608] The written contract of sale between the parties, dated December 20, 1944, and the warranty deed executed and delivered to the plaintiff in 1945, merely described plaintiff’s lot and provided for a “community ingress and egress to Lake Lucerne.” The plaintiff objected, at the time of the delivery of the contract, that it did not conform to the partnership’s oral commitments, but, upon the promise of It. D. Tembreull that the covenants would be executed later, he accepted the contract as worded, made all of the payments due thereunder, and accepted a deed early in 1945 containing only the same language as was in the contract. The only subsequent action of the partnership in the performance of its oral promise was by way of filing a plat of “Tembreulls’ Lake Lucerne Div. No. 1,” in the office of the King county auditor on April 21,1945, which showed a large arrow directly opposite and pointing toward lot 6 of “Pipe Lake and Lake Lucerne Div. No. 2,” followed by the words: “Access to beach for benefit to owner in this plat.” The first notice that the plaintiff had that the partnership would refuse to go through with its representations as orally agreed upon, was a few days before this action was commenced. This knowledge came as a result of advertising the property in question for sale. The court found that the oral contract fell within the purview of both the statute of frauds and the statute of limitations, since it purported to convey an interest in real property and was made in 1944. From a judgment of dismissal of the action, the plaintiff appeals. Appellant assigns as error (1) the dismissal of the action, (2) the court’s conclusions of law that the cause was barred by the statute of limitations, (3) that it was barred by the statute of frauds, and (4) its finding of fact that appellant had failed to prove that lots 20 and 21, block 3, plat of Pipe Lake and Lake Lucerne were to be available for beach purr poses to the owners of lots in the “New Addition.” As to the assignment of error directed to the statute of limitations, our question is as to when it started to run. [609] Appellant contends that he enjoyed the use of the land in question, and had no cause for alarm with regard to it until it was advertised for sale shortly before the action was commenced. He asserts there was no occasion to take any steps to protect his rights until someone sought to invade them, and that this did not occur until 1950. He relies upon Buty v. Goldfinch, 74 Wash. 532, 133 Pac. 1057, and Berry v. Pond, 33 Wn. (2d) 560, 206 P. (2d) 506. In Buty v. Goldfinch, supra, the defendant, who was in possession of the land in question, interposed the defense that plaintiff’s tax deed was void, because the court had never acquired jurisdiction of it in the tax lien foreclosure action. The plaintiff had brought the action to recover possession under a tax deed executed some eight years previously. The court held that the defense to the action was not barred by the statute of limitations. In Berry v. Pond, supra, the distinction between a plaintiff maintaining an action to secure a remedy and the defense of a possessory action was pointed out by quoting from Pinkham v. Pinkham, 61 Neb. 336, 85 N. W. 285, as follows: “ ‘The right to commence and prosecute an action may be lost by delay, but the right to defend against a suit for the possession of property is never outlawed. The limitation law may, in a possessory action, deprive a suitor of his sword, but of his shield never.’ ” In the instant case, the appellant is not defending an action for possession of land. He is the plaintiff seeking to maintain an action for specific performance. He, therefore, does not fall under the rule of the cited cases. The rule that the statute begins to run upon the discovery of fraud is not available to the appellant. He did not allege fraud or even that he did not know of the breach of the oral contract in 1944. The trial court was correct in applying the statute of limitations as provided in RCW 4.16.080 [cf. Rem. Rev. Stat. (Sup.), § 159], which provides that an action upon a contract, not in writing, must be brought within three years. This is determinative of the outcome of this action. [610] For this reason, we do not reach appellant’s assignments of error directed to the statute of frauds and the court’s findings of fact. The judgment is affirmed. SCHWELLENBACH, C. J., HlLL, DONWORTH, WEAVER, and Olson, JJ., concur.