Frink v. Hoke

• Citation: 56 P. 1093,35 Or. 17
• Parties: FRINK et al. v. HOKE et al.
• Decision Date: 24 April 1899
• Court: Supreme Court of Oregon

56 P. 1093

35 Or. 17

FRINK et al. v. HOKE et al.

Supreme Court of Oregon

April 24, 1899

Appeal from circuit court, Polk county; H.H. Hewitt, Judge.

Action by Jane Frink and others against B.F. Hoke, as administrator of the estate of John Thomas, deceased, and others. There was a decree for plaintiffs, and defendants appeal. Affirmed.

N.L Butler, for appellants.

W.H Holmes and J.J. Daly, for respondents.

WOLVERTON C.J.

This is a suit to cancel and annul a contract for the sale of real property, made and entered into between W.S. Frink and John Thomas, to have Thomas declared a trustee of the legal title to the N.E. 1/4 of section 3, township 9, south range 6 W. of the Willamette meridian, containing 160 acres, being a portion of the land contracted to be conveyed; and for an accounting of rents and profits. Both parties having died since suit was instituted, plaintiffs were substituted for Frink, and B.F. Hoke, administrator, et al., for defendant. The facts, about which there is very little controversy, as shown by the record, are as follows: W.S. Frink, the ancestor of the plaintiffs, moved upon said quarter section in 1870 and, upon making inquiry of the government with a view of entering it as a homestead, was informed that it had been previously entered by one Grant, but was subsequently notified that Grant's filing had been canceled, and that the land had inured to the Oregon & California Railroad Company. He thereupon procured a contract from the company for the purchase thereof, and, on February 13, 1880 while the title was thus supposedly in that condition, of which Thomas was fully apprised, he entered into a contract for the sale to him of 360 acres of land, including said quarter section. It was understood that Frink would have to acquire the title to the 160-acre tract from the Oregon &amp California Railroad Company before he could make the conveyance. He purchased the other 200 acres from the state and railroad company, paying therefor in full before the controversy arose. Frink in the meanwhile had improved the 160-acre tract by constructing a house and stock shed thereon, building fences, clearing a portion thereof, and setting out a small orchard, the entire value of which at the time was between eleven and twelve hundred dollars. Thomas went into possession under the agreement, and so continued until about the 1st of March, 1883, when he was informed by W.P. Wright, the county surveyor, that the 160-acre tract was government land, subject to entry, and that other parties were about to file upon it as a homestead. Upon obtaining this information, he filed upon it at once, and on March 5, 1883, notified Frink as follows: "I was in town Friday, and learned through Mr. Wright that there was a flaw in the title to the N.E. quarter of section 3, and that it was susceptible of homestead; so, to prevent any trouble, I filed on it, as there were parties about to jump it. Please meet me in Dallas on Saturday, March the 10th, and let us fix up the matter some way." In pursuance of this notice, Frink met him in Dallas about the date named, and, after discussing the matter, it was substantially agreed that Thomas should continue in possession, secure the title to the property from the government, and that he should have the benefit of whatever sum Frink should thereafter recover from the railroad company on account of the payments he had theretofore made for the land, which should be indorsed upon the Thomas notes given to Frink for the purchase price. This understanding was sworn to positively by Frink, and corroborated by the testimony of M.M. Ellis, to whom a statement of it was made at the time by both parties. Frink at the same time paid Thomas $13, to reimburse him for the amount expended in making the homestead entry. It is alleged that this payment was made to Thomas upon his request for the express purpose of reimbursing him for his outlay in making said entry of homestead, and, while there is some discrepancy in the testimony, we think the preponderance of proof is to that effect. Subsequently, about October 1, 1883, Thomas had a notice published in a Dallas newspaper, notifying all persons that the promissory notes which Frink held against him for the purchase price of the property were without consideration, and void; that he was not bound by them, and would not pay the same, nor any part thereof. Frink afterwards instituted a suit to rescind the contract for want of such payment, and to be declared the owner of the 160-acre tract in the event that Thomas should be awarded the patent in the contest then pending before the interior department. The suit to rescind was decided against Frink, for the reason, among others, that he did not offer to perform or return the money and notes, and for the further reason that this court could not determine the controversy while a dispute touching the rights of the parties to the patent was pending in the land department. Patent was issued to Thomas in March, 1893. Prior to the publication of the notice touching the notes, Thomas had paid $340 of the principal thereof, and $382.75 interest. About November 24, 1893, Frink, in writing, tendered to Thomas a warranty deed to the 200 acres of land for which he then held the title, and a quitclaim deed to the 160-acre tract, relinquishing all his right, title, and interest therein, together with the unpaid notes, and demanded payment of the balance due of said consideration, and at the same time notified him that, in the event of his failure to comply with the terms of the demand on or before December 5, 1893, he would elect to rescind and would declare said contract of sale for all of said lands rescinded. By the same writing he also tendered the moneys theretofore paid upon the contract, with interest, but upon condition that, in the event of rescission, the value of the use of said land would be claimed as an offset to said moneys. The demand not being complied with, this suit was brought for the purpose above named. Thomas, by his answer, put in issue the material allegations of the complaint, and, for a further defense, set up, among other things, that he was induced to enter into the contract by Frink, claiming to be the owner of the legal title, when, in truth and in fact, the title to the 160-acre tract was in the government, and that, in order to obtain such title, he entered the same as a homestead, and in due course obtained the patent; that said tract constituted the principal consideration and inducement for making and entering into said contract; that its relative value was $1,350, while the remaining 200 acres were worth only $250, and that the $722 paid by...