Elmore v. Stephens-Russell Co.

• Decision Date: 26 March 1918
• Citation: 88 Or. 509,171 P. 763
• Parties: ELMORE ET AL. v. STEPHENS-RUSSELL CO. [*]
• Court: Oregon Supreme Court

171 P. 763

88 Or. 509

ELMORE ET AL. v. STEPHENS-RUSSELL CO. ^[*]

Supreme Court of Oregon

March 26, 1918

Department 1.

Appeal from Circuit Court, Linn County; William Galloway, Judge.

Suit by W. P. Elmore, as administrator of the estate of H. B. Moyer deceased, and others against the Stephens-Russell Company, a corporation. Decree for plaintiffs, and defendant appeals. Reversed, and suit dismissed.

This is a suit to compel the specific performance of a contract to purchase land. Plaintiffs are the administrator and the heirs at law of H. B. Moyer, deceased. The substance of the complaint is to the effect that on August 9, 1907, H. B Moyer and the defendant corporation entered into a written contract as follows:

"For and in consideration of the sum of one dollar ($1.00) to me in hand paid by the Stephens-Russell Company, a corporation, I hereby covenant and agree to sell and convey unto said Stephens-Russell Company all of the S. 1/2 of S.E. 1/4 of section 31 and S.E. 1/4 of Sec. 32, T. 14 S R. 1 East, W. M., containing 240 acres, situated in the county of Linn and state of Oregon, for the sum of eight thousand five hundred dollars ($8,500.00) as soon as the title to said property can be perfected and all liens and incumbrances against same cleared away, and upon same being so cleared away I hereby agree to make, execute acknowledge and deliver to said Stephens-Russell Company a good and sufficient deed containing general covenants of warranty and convey said property to said Stephens-Russell Company free from incumbrances.

"In witness whereof, I have hereunto set my hand and seal this ninth day of August, A. D. 1907.

H. B Moyer [Seal.]

"The Stephens-Russell Company accepts same upon said terms and conditions.

"Dated Portland, Oregon, August 9, 1907.

"Stephens-Russell Company,

"By C. S. Russell, Agent."

That all the conditions of the contract were fully performed by Moyer prior to his death, which occurred on March 11, 1913 and said Moyer was at all times thereafter and until his death ready, able, and willing to convey said lands by a good and sufficient deed in all respects complying with the contract to the defendant, and that plaintiff Hazel Moyer was at all times ready, able, and willing to execute the deed as the wife of Moyer. The death of Moyer, the appointment of the administrator, and other formal facts are recited. It is then averred that on March 29, 1915, plaintiff Elmore, as administrator, obtained an order of the probate court, authorizing and directing him to execute a deed and to fully comply with the terms of the contract, that such deed was duly executed by all the plaintiffs and tendered to defendant, accompanied with the requisite revenue stamps, and that defendant refused to accept the same or to perform its part of the contract, and the prayer is for specific performance. Defendant answered with certain admissions and denials, followed by affirmative defenses to the effect that in the interval between the execution of the contract and the death of Moyer no effort was made by Moyer to free the land from incumbrances, nor any steps taken to comply with the contract. It is then alleged that the suit is barred by the statute of limitations; that while a nominal consideration is recited in the contract, none was ever paid; that defendant was not entitled to possession of the premises, and never had possession of any part thereof; that the lands at the time of the execution of the contract were chiefly valuable for the timber growing thereon, and that such timber was the sole inducement for the agreement to purchase; that in the year 1910 a forest fire swept over the land, destroying and fire killing the timber thereon, leaving it of very little value, and that thereby plaintiffs are prevented from complying with the contract; that plaintiffs' title to the land has at all times been insufficient in the following particulars: (a) That the land was a part of a federal grant to the Oregon & California Railroad Company under the terms of an act of Congress which required sales thereof to be limited to actual settlers and not more than 160 acres to any one person, and for a price not to exceed $2.50 per acre; that in the present instance the land had been purchased by Moyer and another in tracts exceeding 160 acres to the person; and that the conveyance, being in violation of the statute, did not convey a good title; (b) that the conveyance from the Oregon & California Railroad Company to Moyer reserved a strip of land 100 feet wide to be used by the grantor as a right of way and for other purposes, and the right to all waters needed for operating said railroad, reserving therefrom all mineral lands therein other than coal and iron, and requiring the grantee to erect and maintain upon the boundary line between said lands and the aforementioned right of way a substantial fence sufficient to turn stock, and that such covenants and conditions are still in force and effect; (c) that a part of said land was patented to Louis...