Flanagan Estate v. Great Cent. Land Co.

• Decision Date: 11 July 1904
• Citation: 77 P. 485,45 Or. 335
• Parties: FLANAGAN ESTATE v. GREAT CENT. LAND CO. et al.
• Court: Oregon Supreme Court

77 P. 485

45 Or. 335

FLANAGAN ESTATE v. GREAT CENT. LAND CO. et al.

Supreme Court of Oregon

July 11, 1904

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Suit by the Flanagan Estate, a corporation, against the Great Central Land Company and another. From a decree for plaintiff, the land company appeals. Modified.

On July 25, 1902, Florence Sheridan and others, being the sole heirs at law of Patrick Flanagan, deceased, gave to one H Sengstacken the following agreement in writing: "For value each for him or herself agree that they will convey to H. Sengstacken all of the interest which I have in and to the real property owned by my father P. Flanagan at the time of his death on what is known as Pony Slough and known as the Pony Slough tract and including the land known as Centerville and tide land abutting owned by said estate and the whole including about six hundred acres, provided that the said Sengstacken shall pay to us this day the sum of One Thousand ($1,000.00) Dollars, and shall within ten (10) days thereafter deposit 25% of ($49,000.00) Forty nine Thousand Dollars, in the Flanagan & Bennett Bank to our credit and subject to our order and shall within one year thereafter deposit in said bank fifty per cent. of said Forty nine Thousand ($49,000.00) Dollars with interest thereon at the rate of 6% per annum, and shall within two years from this date also pay the remaining 25 per cent. of said forty-nine thousand ($49,000.00) Dollars with interest thereon at the rate aforesaid. Upon the first 25 per cent. of the $49,000.00 being deposited as aforesaid each for himself or herself agree to make, execute, acknowledge and deliver to Flanagan &amp Bennett Bank a deed of all of his or her interest to the real property already referred to in which deed Henry Sengstacken or to whom he assigns this contract on the back hereof shall be the grantee and said bank shall hold the deed in escrow until the purchase price and interest aforesaid shall have been fully paid, or until default be made in any payment, and all payments, except the one thousand ($1,000.00) Dollars shall be made to said bank for the grantors aforesaid, the One Thousand (1,000.00) Dollars payment to be made to E.G Flanagan for the grantors aforesaid. If any default be made in any payment the Bank shall immediately return all deeds to the grantors it being understood by the Bank that time is of the very essence of the contract. All conveyances shall contain covenants of warranty. In case of default in any payment all previous payments are hereby declared forfeited to the grantors aforesaid. The grantors also agree that his or her wife or husband shall each for him or herself join in the conveyance aforesaid. The purchase price is Fifty Thousand ($50,000.00) Dollars, and the one thousand dollars aforesaid shall form a part of the purchase price after the first 25% payment is made, but prior to that time, it shall be considered as a consideration for the option only. Time is especially and peculiarly made the essence of this contract and no verbal extension of time shall in any way be considered or affect this contract in any ways, and it is expected and understood that in case of any default of any payment all previous payments shall be forfeited to and retained by the grantors and in such even they intend to convey the land forthwith to another, and they shall not be required to bring any suit to declare the forfeiture." Sengstacken paid the $1,000 on the day of the execution of the agreement. On August 2, 1902, he assigned and set over to the defendant, the Great Central Land Company, a corporation all his interest in the agreement, which company has since continued to be the owner and holder thereof. Later, the company paid to the Flanagan & Bennett Bank, to the credit and subject to the order of the vendors in the agreement, 25 per cent. of the remaining $49,000, being $12,250, whereupon, on August 20, 1902, the vendors executed, in accordance with the terms of their undertaking, a deed to the land company for the premises designated, and delivered the same to the Flanagan & Bennett Bank, to be delivered to said company when the stipulated payments of that which remained due of the purchase price were made. The plaintiff, the Flanagan Estate, was subsequently duly incorporated and organized by the vendors, who became and were the owners of the entire stock thereof, and on September 30th they conveyed the premises in question to the corporation, but subject to the contract of sale or agreement above set forth, and the conveyance to the Great Central Land Company, evidenced by the deed deposited in escrow with the Flanagan & Bennett Bank, and transferred and set over unto it all their right, title, and interest in and to the contract. The land company having failed to make payment of the additional 50 per cent. of the $49,000 on or prior to the 25th day of July, 1903, the plaintiff, at 12 o'clock p.m. of that day, by notice to the land company, declared the contract forfeited, and demanded of the Flanagan & Bennett Bank a return of the deed held by it in escrow, the demand being at once complied with. This suit was instituted to obtain a strict foreclosure of the contract of sale or agreement. Two defenses were interposed: (1) That defendant, the Great Central Land Company, was entitled until August 4, 1903, to make the second payment, but was precluded therefrom by plaintiff's previous declaration of forfeiture and withdrawal of the escrow, contrary to the stipulations of the contract; and (2) that the vendors have since the execution of the contract conveyed all their interest in the premises to the plaintiff, which company has failed and neglected to execute and deposit with the Flanagan & Bennett Bank a deed conveying the same to the land company. The trial court decreed a strict foreclosure, and the defendant, the Great Central Land Company, appeals.

E.B. Seabrook, for appellant.

J.W. Bennett, for respondent.

WOLVERTON J. (after stating the facts).

The first contention in logical order to be noticed is that the forfeiture was prematurely declared, it being insisted by counsel for the defendant land company that the third payment of 50 per cent. of the $49,000 remaining of the purchase price after the payment of the $1,000 was not then due and payable. The position depends upon the proper interpretation of the contract, the plaintiff contending that the payment in question fell due July 25, 1903. The agreement or contract, as will be noticed, provides that Sengstacken shall pay on the day which it bears date the sum of $1,000, "and shall within ten (10) days thereafter deposit 25% of ($49,000.00) Forty nine Thousand Dollars, in the Flanagan & Bennett Bank to our credit and subject to our order and shall within one year thereafter deposit in said bank fifty per cent. of said Forty nine Thousand ($49,000.00) Dollars with interest thereon at the rate of 6% per annum." The inquiry centers about the employment of the word "thereafter," where found the second time in the excerpt. Does it bear relation to the date of the contract and that of the payment of the $1,000, or to the date of the deposit of the 25 per cent. of the balance of the purchase price designated? By pursuing the contract further, it will be found that the stipulation touching the last payment is that it shall be made two years after its date, so that all payments save this one are unmistakably fixed with reference to the date of the execution of the contract, and it is highly improbable that the payment in question should have been fixed with reference to some other date. Indeed, a critical reading of the conditions does not seem to us to lead to such a result, and we are firmly of the opinion that the contention is without merit.

It is next insisted that the deed by...