State Ex Rel. Oatey Orchard Co. v. Sup'r Ct. , 154 Wash. 10 ( 1929 )

I think the result reached in this case is correct, for the reason that I believe the purchaser of land under an executory contract has some right, title and interest in the land. In this case, as stated in the majority opinion, the Josephs had a right to the possession of the land and the right to care for and crop the same, and title to land is ". . . the means whereby the owner of lands hath the just possession of his property. Co. Litt. 345, 2 Blackstone's Commentaries, 195." Bouvier's Law Dictionary.

"`Possession itself is a species of title, of the lowest grade it is true; . . .'" 2 Tiffany, Real Property (2d ed.), p. 1978, note.

I think the majority opinion is entirely out of harmony with both Ashford v. Reese, cited therein, and also Schaefer v.Gregory, 112 Wn. 408, 192 P. 968, and that these cases should be expressly overruled. We have said in the last-mentioned case that,

". . . under the well settled law of this state, the vendee in a forfeitable, executory contract of sale has no legal or equitable interest in the property, the subject matter of the contract, . . ."

And we further held that he was not a necessary party in condemnation proceedings involving the taking of the property. If the prospective purchaser has no legal or equitable interest in the property which it is necessary to take in condemnation proceedings, it is not clear to me how he can have any rights in the property which can be reached by attachment.

I am unable to concur in the result reached in this opinion without expressly overruling certain prior decisions of this court, two of which have been mentioned above.