In re Stamm

NETERER, District Judge (after stating the facts as above). It is apparent that the intent of the parties was that a qualified title to the certificates should vest in the lessor. The lease was sufficient consideration for the delivery of the certificates, and but for the proviso that upon payment of all rentals, etc., the lessor shall return the certificates, the clear intent would be a vested title. In Dutton v. Christie, 63 Wash. 310 372, 115 Pac. 856, the payment was declared to be a part of the consideration, and the subsequent proviso was that the sum paid shall be applied to the last two months of the lease. This confirmed the vested interest in the payment. No interest, contingent or otherwise, remained in the lessee. In the instant case the delivery of the certificates was likewise a part of the consideration and the lessee agreed to pay maturing assessments “so that the lessor shall at all times have good title thereto, * * * ” but upon the performance of the terms of the lease “the lessor shall return to the lessee the two certificates * * * which form a consideration for the execution of this lease.” Clearly an interest in the certificates is retained by the lessee, which was to ripen in complete title Upon the performance of the terms of the lease. While the parties have not construed this lease as did the parties in Stern v. Green et al. (Wash.) 221 Pac. 601, the express terms of the lease, all of which must be construed together, appear conclusive that the lessor’s title was qualified, and for the purpose of guaranteeing the performance of the terms of the lease. A deed upon its face has been often held to be a mortgage; here, by express terms the lease provides the condition upon which the title shall revest. The decision of the referee is reversed.