¶1 (dissenting) — In their complaint in the prior action, respondents, after alleging the agreement for the sale from respondents herein to these appellants of the real property which is the basis of this action, alleged that these appellants had made default in the *509 payments which they were to make pursuant to the contract, and that respondents had notified appellants that, unless appellants placed the contract in good standing, respondents “would elect to cancel said contract and terminate all of defendants’ rights in said property and in said contract of purchase.” Respondents prayed that the “contract be declared rescinded and canceled;” that their title to the premises be quieted against appellants; and that respondents have judgment against appellants, for forty dollars per month for each month of appellants’ occupancy of the premises after the date upon which respondents notified appellants that the contract would be canceled.
¶2 Appellants made default in the action, and, after the introduction of evidence on the part of these respondents, a decree was entered adjudging that the contract “be and the same is hereby rescinded and canceled, and that all rights of defendants (appellants herein) as vendees under said contract are hereby terminated and ended,” and quieting respondents’ title as against appellants. The decree contains no provisions forfeiting to respondents the payments which appellants had made under the contract, nor referring to such payments directly or indirectly. This decree was entered at the instance of respondents, and upon their complaint, and upon the evidence which they introduced in support thereof. By the decree, the contract was “rescinded and canceled,” and the rights of appellants under the contract were “terminated and ended.”
¶3 In the case of Jones v. Grove, 76 Wash. 19, 135 Pac. 488, this court said:
“Where a contract for the sale and purchase of real estate has been rescinded, the law restores each of the parties to his original status. The vendor is entitled to the possession of the property if it has not already been restored to him, the rent if any, and dhmages for *510 the breach. The purchaser has a right to the refund of the money paid under the contract, together with interest.”
¶4 In the early case of Ankeny v. Clark, 1 Wash. 549, 20 Pac. 583 (relied upon in the case last cited), the rule was laid down that,
“When a contract is rescinded, it is abrogated and annulled. It is as if it had never existed, and the party seeking to recover back money paid under it proceeds, not upon the contract, for there is none, but upon the implied obligation that exists on the part of the one who received money under it to pay it back to the one from whom he received it.”
¶5 This last quotation is particularly applicable to the situation here presented, as by the decree in the prior action the rights of appellants “under said contract” were terminated and ended. In the case at bar, appellants are not relying* on any rights under the contract, but upon rights which arose upon the rescission' and cancellation of the contract as effected by the decree.
¶6 The opinion of this court in the case of Johnson v. Alexander, 87 Wash. 570, 151 Pac. 1121, is in point. In the course of the opinion, the court said:
“If the contract was rescinded by the appellant, the respondent would be entitled to a recovery of the purchase price, as a rescission includes the idea of restoration of both parties to their status quo and the return by each to the other of the consideration given and received. Rei ger v. Turley, 151 Iowa 491,131 N. W. 866. If, however, the contract was forfeited, as asserted by the appellant, then under its terms he was entitled to retain the payments. The only defense which the appellant could plead to the allegation that he had rescinded the contract was a denial of the rescission, and an affirmative allegation that it had been forfeited instead. ’ ’
¶7*511 The cases of Connelly v. Malloy, 106 Wash. 464, 180 Pac. 469, and West v. Hoffman, 139 Wash. 13, 245 Pac. 419, are to the same effect.
¶8 It must be remembered that these appellants, as defendants in the former case, were regularly served with process and made default. While it is possibly true that respondents might have declared the contract forfeited and terminated, and, upon appropriate allegations in their complaint, have procured a decree forfeiting the contract and awarding to themselves the payments made thereunder by these appellants, upon the record as made, respondents are bound by their complaint, and particularly by the decree which was entered thereunder at their request and upon evidence introduced by them.
¶9 In this connection, the opinion of this court in the case of Bank of California v. Dyer, 14 Wash. 279, 44 Pac. 534, is in point. In the case cited, the court quoted with approval the following rule:
‘ ‘ ‘ The relief granted to a plaintiff in a case in which there is no answer, cannot exceed that which he demands in his complaint. It is not sufficient that he states facts sufficient to entitle him to the relief; he must also ask for it. . . .’ Simonson v. Blake, 12 Abb. Pr. 331; 2 Jones, Mortgages (5th Ed.), §1475; Parrott v. Den, 34 Cal. 79; Lamping v. Hyatt, 27 Cal. 99.”
¶10 Long v. Eisenbeis, 18 Wash. 423, 51 Pac. 1061, is of interest in this connection.
¶11 It nowhere appears from the record that appellants herein failed to acquiesce in the position taken by respondents, as adjudged in the decree in the prior action. In appellants’ complaint in this action, it is alleged that respondents herein ejected appellants from the premises prior to the entry of the decree in the former suit. This allegation stands admitted by re *512 spondents’ demurrer. The decree fixed the rights and liabilities of the parties.
¶12 In my opinion, there is no escape from the proposition that, upon the record before us, it must be held that the trial court erred in overruling the demurrer to appellants’ complaint, and that appellants are entitled to maintain this action, subject to respondents’ right to offset against appellants ’ claim the reasonable value of the use and occupation of the premises and any other damages which they may lawfully prove.
¶13 I accordingly dissent from the conclusion reached by the majority.
¶14 Main, J., concurs with Beals, J.