Appeal
from Circuit Court, Coos County; Robert G. Morrow, Judge.
Action
by Guy C. Barnum against Herbert Lockhart. Judgment for
plaintiff, and defendant appeals. Affirmed.
This is
an action to recover installments alleged to be due upon a
contract to purchase real estate. The complaint alleged that
on August 14, 1911, the plaintiff and defendant entered into
a contract whereby plaintiff agreed to sell and convey to
defendant a tract of land, described in the complaint, for
the sum of $20,000, to be paid in installments as follows
$1,000 to be paid at the execution of the contract; $1,000
within 90 days; $8,000 within six months; $5,000 on or before
August 14, 1912; and $5,000 on or before August 14, 1913
with 6 per cent. interest on deferred payments from date of
maturity. There was also a provision for attorney's fees
in case of nonperformance by either party. It was further
alleged that plaintiff "is ready, able, and willing to
fulfill all the terms of said agreement on his part to be
kept and performed in full conformity therewith"; that
defendant has paid nothing except the first two payments of
$1,000 each. Defendant answered, admitting that he entered
into the agreement, but denying plaintiff's willingness
or ability to perform his part of the contract, and set up
the contract in full as an exhibit to the complaint. That
part of the contract material to this controversy is as
follows:
"Know
all men by these presents, that Guy C. Barnum and _____, his
wife, the first parties, in consideration of the sum of one
thousand ($1,000) dollars cash in hand paid, and in
consideration of the payments to be made by Herbert Lockhart
as hereinafter stated, do hereby agree to sell and convey
unto the said Herbert Lockhart of Marshfield, Oregon, the
following described real property, situated in Coos county
Oregon, to wit: Beginning at the southwest corner of
northwest quarter of southeast quarter of section 11
township 26 south, of range 13 west, Willamette meridian, in
Coos county, Oregon, thence north 20 chains; east 20 chains
thence south 46 degrees east to low-water line on left bank
of Isthmus slough; thence southwesterly along low-water line
to a point due east of place of beginning; thence west to
place of beginning containing 61.6 acres more or less; said
premises being and including all of what is known as Port
Barnum and fronting on Isthmus slough, Coos county, Oregon,
near Flagstaff in said county; and including all streets,
alleys, and other public highways shown on said map. (The
plat of said Port Barnum having been heretofore vacated by
order of the county court of the state of Oregon for Coos
county.) The said Guy C. Barnum does also hereby agree to
furnish within thirty days from this date an abstract of
title to said premises showing marketable title in himself,
and to allow the said Herbert Lockhart a reasonable time in
which to examine the said abstract of title. * * * In case
the second party, his legal representatives or assigns, shall
pay the several sums of money aforesaid punctually, and at
the several times above specified; and strictly and literally
perform all and singular the agreements and stipulations
aforesaid, according to the true intent and tenor thereof,
then the said first party will make unto the second party,
his heirs or assigns, upon request at Flanagan & Bennett
Bank, Marshfield, Oregon, and upon the surrender of this
agreement, a deed conveying in fee simple, with the ordinary
covenants of warranty; excepting, however, from the operation
and subject matter of said covenants the before-mentioned
taxes and assessments and all liens and incumbrances created
or imposed by said second party or his heirs. But in case the
said second party shall fail to make the payments aforesaid,
or any of them, punctually and upon the strict terms and at
the times specified, without failure or default, the time of
payment being declared to be of the essence of this
agreement, then the first party shall have the right to
declare this agreement null and void; and in such case, all
the rights and interests hereby created or then existing in
favor of said second party, or derived under this agreement,
shall utterly cease and determine, and the premises aforesaid
shall revert in said first party, without any right of the
said second party of reclamation or compensation for money
paid or improvements made, as absolutely, fully, and
perfectly as though this agreement had never been made."
The
answer further alleged:
"That
said Guy C. Barnum is wholly in default as to the terms and
provisions of said contract on his part to be performed in
this: That said Barnum has failed to furnish an abstract of
title to said premises showing a marketable title in
himself. That said Barnum did furnish an abstract, but the
same did not show a marketable title in said Guy C. Barnum
for the following reasons: (a) Page 27 of the abstract of
title prepared by the Title Guarantee & Abstract Company
for plaintiff, dated August 28, 1911, No. 1760, shows a
deed from certain persons claiming to be the heirs of
Malinda Davis, deceased. That said deed is defective
inasmuch as the interest attempted to be described therein
was deeded to one Malinda Davis, and, secondly, the
description in said deed according to said abstract is
defective inasmuch as it appears therefrom that the closing
call of the description is not given, the description in
said deed being as follows: 'The undivided 1/12
interest in all the following described lands: Beginning at
the S.W. corner of the N.W. 1/4 of the S.E. 1/4 of section
11, Twp. 26 S. of R. 13 W. of Will. Mer., running thence N.
20 chains; thence E. 20 chains; thence S. 46 degrees E. to
low-water line of Isthmus slough; thence in a southerly
direction along low-water line of said Isthmus slough to a
point due E. of the place of beginning, and containing 61
acres in Coos county, Oregon, conveying all interest of,
in, or to the described lands inherited by the grantors
from Malinda Davis, deceased, and the grantor T. J. Davis
conveying and intending to convey his right to the curtesy
in the described lands.' (b) That page 18 of said
abstract shows an agreement between T. J. Davis and wife
and other persons, who as owners of said real property
agreed to give and convey to Coos Bay Roseburg Eastern
Railway & Navigation Company, a corporation of Oregon, a
right of way 100 feet wide through and87 across said lands,
which agreement appears to be recorded on page 377 of
volume 21 of said records of deeds. That said railroad
company now occupies and claims said right of way as owner
thereof. (c) That page 49 of said abstract shows a mortgage
from plaintiff to one Henry Sengstacken, recorded as of May
9, 1910, on page 386 of volume 25 of Records of Mortgages
of Coos County, Oregon, purporting to secure the payment of
a note for $8,750, due on or before three years from May
14, 1910, drawing interest at rate of 6 per cent. per
annum. That in a continuation or additional abstract
prepared by said company, dated April 3, 1913, there
appears what purports to be an attempted partial release of
said mortgage. That said release is executed by Henry
Sengstacken. That no consideration is expressed therein,
and therefore, as defendant is advised and believes and
therefore alleges, said partial release is defective and
not a binding or valid release. That the defendant also
alleges that he is informed and believes, and therefore
alleges, that at the time of the execution and delivery of
said partial release said Henry Sengstacken was not the
owner of the mortgage referred to in said partial release,
nor of the note thereby secured. * * * And defendant
further alleges that at all times since the making of said
contract and at the present time he has been and now is
ready, willing, and able to fulfill the terms and
provisions of said contract on his part to be paid, kept,
or performed. That on February 9, 1912, defendant did
tender and offer to pay to plaintiff the installment of
$8,000 due on or before six months from date of said
contract, and which tender is in writing, and a copy of
said tender is hereunto annexed, made a part hereof, and
marked 'Exhibit B.' * * * That defendant on the 6th
day of April, 1912, did also tender and offer to pay to
plaintiff the sum of $5,000 due on or before August 14,
1912. That a copy of said tender is hereunto annexed, made
a part hereof, and marked 'Exhibit C.' * * * That
at the time of making each of said tenders and at all times
since, the plaintiff has not been and is not now able to
comply with the terms of his contract, and has failed and
neglected to comply with the terms of his contract as
hereinbefore stated, and the title to said real property as
shown by the abstracts submitted to defendant have not
shown a marketable title in said Guy C. Barnum. That at the
time of the making of said tenders there were two unpaid
unsatisfied mortgages against said real property
aggregating $10,750, besides interest, and of which was the
mortgage to Henry Sengstacken for said sum of $8,750 from
which said lands were attempted to be released as
aforesaid, and the other for $2,000 in favor of First Trust
& Savings Bank of Coos Bay, recorded as of April 13, 1910,
on page 316 of volume 25 of Record of Mortgages of said
Coos county. That the last-mentioned mortgage has been
paid, satisfied, and discharged."
The
reply, among other things, admits that the abstract showed a
contract between plaintiff's predecessors in interest and
the Coos Bay Roseburg Eastern Railway & Navigation Company to
a right of way 100 feet wide across the contracted lands, and
that the railroad company now occupies and claims it,...
