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Tomlinson v. Clarke

as corrected.: January 22, 1991.

H.D. TOMLINSON, ET AL, RESPONDENTS,
v.
DAVID A. CLARKE, ET AL, APPELLANTS



Coleman, J. Pekelis and Forrest, JJ., concur.

Author: Coleman

David and Cynthia Clarke appeal from the trial court's ruling that they are not bona fide purchasers of the parcel of land in dispute and that the respondents, Gayle and Annie Whitsell, have a superior interest in that land subject to the provisions of the real estate contract between the Whitsells and H.D. Tomlinson. We reverse.

In 1979, Tomlinson owned the Snohomish County real estate involved in this case and legally described in the trial court's findings of fact. On March 23, 1979, Tomlinson sold one parcel of land to Gayle and Annie Whitsell through an executory real estate contract. At that time, the state recording act included RCW 65.08.080. That provision, repealed by the 1984 amendments to the act, read as follows:

An executory contract for the sale or purchase of real property or an instrument granting a power to convey real property as the agent or attorney for the owner of the property, when acknowledged (with the acknowledgment certified) in the manner to entitle a conveyance to be recorded, may be recorded in the office of the recording officer of any county in which any of the real property to which it relates is situated, and when so recorded shall be notice to all persons of the rights of the vendee under the contract.

Former RCW 65.08.080.*fn1

The Whitsell contract was recorded in the office of the auditor of Snohomish County on October 19, 1982, more than 3 1/2 years after the sale. Included in the legal description of that contract was 125 linear feet of land situated south of Vernon Road, along the shore of Lake Stevens. The Whitsells had intended to purchase only the western 50 linear feet of that shoreland, but the error in the legal description initially went unnoticed.

On December 26, 1979, Tomlinson sold a second parcel of land to David and Cynthia Clarke, also through a real estate contract. The Clarkes recorded their contract in the office of the auditor of Snohomish County on February 7, 1980, pursuant to former RCW 65.08.080. The Clarke contract included the same 125 linear feet of the shoreland south of Vernon Road that was also described in the Whitsell contract. When the Clarkes purchased the land

described above, they had no knowledge that the Whitsells previously had entered into a contract with Tomlinson or that the Whitsell contract included the same 125 linear feet of shoreland.*fn2 At some point in 1985, the parties discovered the conflict concerning the 50 feet of shoreland that the Whitsells originally intended to purchase.

On February 4, 1987, the Whitsells and Tomlinson initiated legal proceedings in order to resolve the matter. The Whitsells asked the court to find that their interest was superior to the Clarkes' interest in the disputed 50 linear feet of land, while Tomlinson asked the court to reform the two contracts to reflect that the Whitsells had purchased the western 50 linear feet and the Clarkes had purchased the remaining 75 linear feet. Tomlinson claimed that a mutual mistake justified such reformation.

The trial court held that no such mutual mistake had occurred, and it concluded that the Whitsells' equitable interest in the disputed 50 feet of land was superior to the Clarkes' interest in that land because the Whitsells purchased the land first. According to the court, the fact that the Clarkes recorded their contract before the Whitsells recorded theirs was irrelevant because, as vendees to an executory contract, the Clarkes had not acquired legal title and thus could not be bona fide purchasers for value.

We first decide whether a vendee may acquire the status of a bona fide purchaser after purchasing real property through an executory contract and recording the contract, but before acquiring ...


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