Suit by
Mary Rodney Adair and Samuel D. Adair against Bethenia A
Owens Adair and John Adair to enforce specific performance of
a contract to convey real estate. Judgment for defendants on
demurrer to the complaint. Plaintiffs appeal. Reversed.
The
other facts fully appear in the following statement by
STRAHAN, C.J.:
The
court below first struck out a part of plaintiffs'
complaint, and then sustained a demurrer to the residue, and
entered a final decree in favor of the defendants, from which
this appeal is taken. The great prolixity of the complaint
almost forbids its insertion in this statement, but the
points decided by the court below will be best understood by
its insertion. It is as follows:
"The
above-named plaintiffs, Mary Rodney Adair and Samuel D
Adair, complain of the above-named defendants, Bethenia A
Owens Adair and John Adair, and for cause of suit allege
That on the 8th day of March, 1882, the plaintiff Mary
Rodney Adair was, ever since has been, and now is, the wife
of the plaintiff Samuel D. Adair. That on the 14th day of
October, 1885, the defendant Bethenia A. Owens Adair was
ever since has been, and now is, the wife of the defendant
John Adair; and that during the time of the happening of
the several transactions and the execution of the several
instruments hereinafter set forth, in which the defendant
John Adair was concerned, he, bearing the same name as his
father, who was then living, was known and described in
said transactions and instruments as John Adair, junior. [
That on said 8th day of March, 1882, the plaintiff Samuel
D. Adair was the owner of and in possession of the
following described lands, situated in the county of
Clatsop and state of Oregon, to-wit: The lots numbered
five, six, and seven, of section twenty-six, and the lots
numbered seven and eight, of section twenty-seven, in
township eight north, of range ten west of the Willamette
meridian, in the district of lands subject to sale at
Oregon City, in the state of Oregon, containing one hundred
and sixty-three and eighty-six hundredths acres
hereinafter called his 'Homestead Entry;' and on
said day the defendant John Adair was the owner of and in
possession of the following described lands, situated in
Clatsop county, to-wit: The lot numbered nine, and
south-east quarter of the south-east quarter of section
twenty-three, and the lots numbered one and two, of section
twenty-six, and the south-west quarter of the south-west
quarter of section twenty-four, all in township eight
north, of range ten west of the Willamette meridian, in the
district of lands subject to sale at Oregon City, in the
state of Oregon, containing one hundred and sixty-five and
80-100 acres, hereinafter called his 'Homestead
Entry;' and on said day the plaintiff Samuel D. Adair
and the defendant John Adair owned and possessed jointly
the following described land situated in said Clatsop
county, to-wit: The east half of the donation land claim of
George W. Coffinberry, situated in sections twenty-two,
twenty-three, twenty-six, and twenty-seven, in township
eight north, of range ten west, Willamette meridian, in the
district of lands subject to sale at Oregon City, in the
state of Oregon, containing three hundred and twenty acres,
or thereabouts. That on said day the plaintiff Samuel D.
Adair and the defendant John Adair were indebted to one
George H. Mendell in the sum of five thousand two hundred
and forty-eight dollars and eighty-three cents, or
thereabouts, and were unable to pay the same; and on said
day the plaintiffs did execute and deliver to the said
George H. Mendell a conveyance absolute in form of all the
lands above described, as the homestead entry of the
plaintiff Samuel D. Adair, and of the interest of the said
plaintiff in the lands above described, as being jointly
owned by himself and the defendant John Adair, and also all
the right and title of said plaintiff to tide and
overflowed lands, and all privileges of water front
appertaining or belonging to said lands to ship channel in
the Columbia river, together with the tenements,
hereditaments, and appurtenances to all of said lands
belonging or in any wise appertaining. Said conveyance is
hereinafter referred to as 'Deed A.' And on said
day the defendant John Adair, being then unmarried, did
execute and deliver to said George H. Mendell a conveyance
absolute in form of the lands above described as his
homestead entry, and of his interest in the lands above
described as belonging jointly to himself and the plaintiff
Samuel D. Adair, and all of his right and title to
tide-lands and overflowed lands, and all privileges of
water front appertaining or belonging to said lands to ship
channel in the Columbia river, together with the tenements,
hereditaments, and appurtenances to said lands belonging or
in any wise appertaining. Said conveyance is hereinafter
referred to as 'Deed B.' That, while said
conveyances were in form absolute transfers of the title to
the lands therein mentioned, nevertheless it was understood
and agreed by and between the plaintiffs and the defendant
John Adair of the one part and said George H. Mendell of
the other part, at the time of the delivery and acceptance
of the said conveyances, that the conveyance called
'Deed A' was executed and delivered by the
plaintiffs, and the conveyance called 'Deed B' was
executed by the defendant John Adair, and both of said
conveyances were received and accepted by the said George
H. Mendell, not as absolute transfers of the title to the
lands in said conveyances respectively mentioned, but as
mortgages for the better securing of the payment of the
sums of money above mentioned as owing from the said Samuel
D. Adair and John Adair to the said George H. Mendell, and
not otherwise. And it was further understood and agreed by
and between these plaintiffs and the said John Adair of the
one part, and the said George H. Mendell of the other part,
at the time of the execution and delivery of said
conveyances, that whenever the said Samuel D. Adair and
John Adair should pay to the said George H. Mendell the sum
of money above mentioned, with interest thereon at the rate
of ten per cent. per annum from the said 8th day of March,
1882, he, the said George H. Mendell, would immediately
thereupon reconvey to the said Samuel D. Adair the title to
the said lands conveyed to him by the instrument called
'Deed A,' and to the said John Adair the title to
the lands conveyed to him by the instrument called
'Deed B,' and that he would make such conveyance to
either of them upon the payment of one-half said sum; and
the said Samuel D. Adair was allowed by the said George H.
Mendell to continue in the possession of the lands owned by
him, and the said John Adair to continue in the possession
of the lands owned by him, and the two to continue in the
possession of the lands owned by them jointly. That
thereafter, to-wit, on the 10th day of April, 1883, the
plaintiff Samuel D. Adair became the owner of and entered
into possession of the following described land, situated
in said Clatsop county, to-wit: All the tide land lying
north of, fronting and abutting upon, the east half of the
donation land claim of George W. Coffinberry, in sections
twenty-two and twenty-three, in township eight north, of
range ten west of the Willamette meridian, containing one
hundred and one and seventy-two hundredths acres,
hereinafter called his 'Tide-Land Purchase;' and
upon his procuring title to said land it was considered and
agreed by and between the plaintiffs and the defendant John
Adair and said George H. Mendell that the same should also
be conveyed to him; and on the 20th day of April, 1883, in
pursuance of such agreement, the plaintiffs executed and
delivered to said George H. Mendell a conveyance absolute
in form of the title to said lands, together with the
tenements, hereditaments, and appurtenances thereunto
belonging. Said conveyance is hereinafter referred to as
'Deed C.' That said conveyance was executed and
delivered by the plaintiffs and received and accepted by
the said George H. Mendell, upon the same terms and
conditions in every respect as appertained to the
conveyance called 'Deed A,' as hereinbefore fully
set forth and shown; and the said Samuel D. Adair was
allowed by the said George H. Mendell to remain in the
possession of said lands. That after the execution and
delivery of the conveyances above mentioned, and until the
14th day of October, 1885, said George H. Mendell continued
to hold said conveyances, and no part of his said claim
against the plaintiff Samuel D. Adair and the defendant
John Adair was paid.]
["Wherefore
and because the said George H. Mendell was desirous of
securing payment of said claim, and said Samuel D. Adair and
John Adair were both unable to make payment of the whole of
his share thereof, it was on said day mutually agreed by and
between the plaintiffs and the defendants and said George H.
Mendell that the defendant Bethenia A. Owens Adair would
discharge the indebtedness of the said Samuel D. Adair and
John Adair to the said George H. Mendell, and that he, the
said George H. Mendell, would thereupon transfer to her, the
said Bethenia A. Owens Adair, the title to the lands
previously conveyed to him by the instruments hereinbefore
described, and that she should receive, accept, and hold the
title to said lands in all respects upon the same terms and
conditions as the same were held by the said George H.
Mendell, whereof she was then and there by the plaintiffs,
the defendant John Adair, and said George H. Mendell, fully
advised. That thereupon, and in pursuance of said agreement,
the...
