In September, 1919, the appellant contracted to sell and convey to the respondent a lot in the town of Ashford, together "with all improvements thereon," the improvements consisting of a building and constituting approximately three-fourths of the value of the property. The purchase price was to be $800, payable at the rate of $20 a month, with interest, the purchaser also to pay the taxes. The contract was the ordinary executory conditional contract and provided that, in case the purchaser should fail *Page 650 to make the payments provided, within thirty days after notice thereof in writing, the seller would have the right to declare the contract null and void. Upon all payments being made, the contract provided that the seller should give "a deed conveying said premises in fee simple with full convenants of warranty."
The improvements were totally destroyed by fire in November, 1920, without the fault of either party. At the time of the fire, the respondent had paid $420 on the contract and approximately $80 in taxes. The appellant refusing to replace the improvements, the respondent brought this action to recover the amount that she had paid under the contract, on the ground of failure of consideration. To this complaint appellant counterclaimed, asking judgment for the balance due on the contract.
The principal question is whether the respondent is entitled to rescind the contract on the ground of failure of consideration arising from the destruction of the subject-matter.
Many cases are cited from other jurisdictions holding that, under an executory contract of sale, where the property is destroyed without fault of either party, the loss must fall on the vendee. But in those jurisdictions it will be noticed the courts have given a different effect to such executory contracts than that given by this court. In such jurisdictions it had been held that the executory contract of sale created some title or interest in the vendee, either legal or equitable, and that the loss must follow the title or interest; whereas we have consistently held in numerous cases that an executory contract of sale in this state conveys no title or interest, either legal or equitable, to the vendee, and the loss following the title, it must be borne by the vendor. The same result obtains upon the theory that *Page 651 the vendee can recover because of failure of consideration.
It is unnecessary to catalogue the cases in which this position has been stated. They have been summarized recently in the case of Schaefer v. Gregory Co., 112 Wn. 408,192 P. 968. On the authority of those cases, therefore, it must be held that the respondent was entitled to recover, unless there is something in the appellant's contention that the respondent, being in default, cannot take advantage of the situation to rescind the contract. An examination of the record, however, does not disclose that there is any merit in the appellant's contention that the respondent was in default. Under the terms of the contract, if the payments were not promptly made, the appellant could take advantage of this fact only by giving thirty days' notice, and the record here shows that no such notice was given, and furthermore, that if any default was made by the respondent it occurred after the destruction of the improvements, which relieved the respondent from making the payments called for. For the reasons stated, the judgment is affirmed.
FULLERTON, MITCHELL, HOLCOMB, and MAIN, JJ., concur.