Columbia River Co. v. Smith

• Citation: 162 P. 831,83 Or. 137
• Parties: COLUMBIA RIVER CO. v. SMITH ET UX.
• Decision Date: 16 January 1917
• Court: Oregon Supreme Court

162 P. 831

83 Or. 137

COLUMBIA RIVER CO. v. SMITH ET UX.

Supreme Court of Oregon

January 16, 1917

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by John A. Smith and wife against the Columbia River Company. From a judgment for defendant on a cross-bill demurred to plaintiffs appeal. Modified and affirmed.

The defendants in this equity suit began an action in ejectment against the present plaintiff's tenant to recover the possession of lands in Clatsop county. In due course the company filed its cross-bill in equity, reciting the history of the ejectment action and averring "that heretofore and on January 24, 1910, the said defendant was in possession of and claiming to be the owner of a certain tract of land" which the pleading particularly describes the same as in the ejectment action. It goes on to state, in substance, that on the day mentioned the Whitney Company purchased from John Smith and he sold to it all the property thus described for $450, of which the purchaser paid to Smith $250 in cash, and thereupon they entered into a contract which John Smith signed, and which contained the condition that:

"Upon payment of said sum I hereby covenant, contract, and agree to execute and deliver unto the said Whitney Company, Limited, a good and sufficient deed conveying to the said Whitney Company, Limited, the fee-simple title to all of the above-described real estate and premises free and clear of all liens and incumbrances whatsoever, said deed to be satisfactory to the said Whitney Company, Limited, and to be a full warranty deed, both as to title, seisin and incumbrances."

It is said also that John Smith accepted the $250, and at the time of the execution of the contract put the Whitney Company in possession of the lands; that with his consent it caused a railroad to be constructed over the tract; that thereafter it sold to the plaintiff all the realty mentioned; and that the latter has been ever since then, and now is, in possession of the same and the holder thereof. The plaintiff here pleads full performance of the contract on the part of the Whitney Company, the tender of the balance of the purchase price which the defendant refuses to take, and the keeping good of the same by depositing it in court. The prayer is for an injunction against the continuance of the law action and for a decree for specific performance requiring both defendants to convey the property. The defendants, joined in a general demurrer to the cross-bill, and as grounds therefor "allege that said cross-bill does not set forth facts sufficient to constitute a cause for cross-bill, nor does the said cross-bill set forth facts sufficient to constitute a cause of suit."

The court overruled this objection to the complaint, and, the defendants having elected to stand upon the same, the court made findings of fact and conclusions of law according to the cross-bill, and entered a decree requiring the defendant John A. Smith to execute and deliver to the plaintiff a good and sufficient deed of conveyance conveying unto the plaintiff its successors and assigns forever, the fee-simple title to the realty in question, and that in default of execution thereof the decree should stand for a deed as against John A Smith, that Smith should not have the $200 deposited until he had made and delivered the deed, and that both defendants be perpetually enjoined from prosecuting the ejectment action. From this decree they appeal.

F. C Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appellants. J. M. Gearin, of Portland (Dolph, Mallory, Simon & Gearin, of Portland, and G. C. Fulton, of Astoria, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

It will be noted that there is no intimation in the cross-bill that the defendants are husband and wife until we come to the prayer where it asks "that a preliminary injunction issue herein, enjoining and restraining the said John Smith and Susanna Smith, his wife, from proceeding further in said action," and that the decree require "John Smith and Susanna Smith, his wife, to execute and deliver to this plaintiff a good and sufficient deed," etc. It is manifest from the complaint that the cross-bill relies upon a contract executed by John A. Smith only.

The principal contention is that the complaint does not state that the contracting defendant is the owner of the property so that he could comply with the direction of the court to specifically perform the agreement to convey. The only averment on that subject is at the opening of the cross-bill where it says:

"The said defendant was in possession of and claiming to be the owner of a certain tract of land," etc.

In Loar v. Wilfong, 63 W.Va. 306, 61 S.E. 333, the court held that language substantially like this was a sufficient allegation of title in the defendant to support a bill for specific performance. Passing this precedent, however, the authorities are not uniform on the subject. Without giving any reason therefor, many of them state that it is necessary to allege in the bill for specific performance that the defendant is the owner of such an estate, the conveyance of which would satisfy the contract sought to be enforced. The best reason for this doctrine is found in Hollander v. Lustik, 79 Misc. 103, 108, 140 N.Y.S. 659, 662. The court there reviews the authorities at some length, approving some and distinguishing others, and finally says:

"A complaint in equity should be sufficiently full and certain to enable the court, upon proof or admission of all the facts contained in it, to grant the relief sought, and, if not, it is objectionable. Applying this rule, how would it be possible for the court, upon admission of the facts set forth in this complaint, to direct specific performance, without the additional proof of defendant's ability to obey the mandate? Applying the above test of sufficiency, such an allegation is the subject of an issue material to the desired relief, and is not supplied by a presumption from the making of the contract."

On the other hand, there is a respectable line of authorities holding that, when a party makes a contract upon a sufficient consideration to convey a tract of land, and he fails to do so, it is not required that the plaintiff shall anticipate or negative the vendee's defense by stating that he has the present ability to comply with his contract. Having covenanted, he must perform, unless he can show a valid reason why he should not do so. Hence, if he would escape the consequences of his own engagement, he must make it a matter of defense. Greenfield v. Carlton, 30 Ark. 547; Harrigan v. Dodge, 200 Mass. 357, 86 N.E. 780; Borden v. Curtis, 46 N. J. Eq. 468, 19 A. 127; Tebeau v. Ridge, 261 Mo. 547, 170 S.W. 871, L. R. A 1915C, 367. Analogous cases are these: In Dalrymple v. Cole, 156 N.C. 353, 72 S.E. 451, it was held that the complaint in specific performance was not subject to demurrer for failure to show the existence of a mortgage or a homestead right which would prevent the defendant from performing his contract, and that such a defense must be put in by answer. In Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732, 41 Am. Rep. 767, there was a distinction drawn between the vendor trying to compel the vendee to buy and the latter seeking to force the former to convey, so that a vendor cannot compel the vendee to take a less title than that for which he contracted, although at an abatement of the price, while, on the other hand, if the plaintiff vendee is willing to take what title he can get, although not as sound as that for which he covenanted, the vendor cannot complain. In Applegate v. Wellsburg Banking & Trust Co., 68 W.Va. 477, 69...