Gaston v. City of Portland

• Decision Date: 30 April 1888
• Citation: 19 P. 127,16 Or. 255
• Parties: GASTON v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

19 P. 127

16 Or. 255

GASTON v. CITY OF PORTLAND.

Supreme Court of Oregon

April 30, 1888

Appeal from circuit court, Multnomah county.

(Syllabus by the Court.)

A deed may be delivered as an escrow to any person other than the grantee, and does not become a conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect. ^[1]

To make the delivery conditional, it is not necessary that any express words should be used that it was delivered as an escrow to make it such. That conclusion is to be drawn from all the facts and circumstances. If at the time of the delivery the party expressly declare that he delivered it as an escrow, it obviated all question as to the intention, but that is not essential to make it an escrow.¹

It is not necessary that the condition upon which a deed is delivered in escrow be expressed in writing; it may rest in parol, or be partly in writing and in part oral.¹

J.K. Kelly and Whalley, Bronough & Northrup, for appellant.

W.H Adams, for respondent.

LORD C.J.

This was a suit in equity to enjoin the defendant from disturbing the possession of the plaintiff in a certain strip of land which is claimed by the defendant to be a part of West Main street, and for a decree quieting title to the same. The title of the plaintiff is not disputed, but the defendant relies on a deed of dedication, executed by the plaintiff and her husband, to the tract in dispute, for public use as a street; while the plaintiff, admitting such execution alleges that the same was made upon condition, and delivered in escrow, and that such condition was never performed, and that there was no delivery. The main question to be determined is whether the locus in quo was dedicated by the alleged deed as a street by the plaintiff. It appears from the evidence that several parties residing along West Main street for various reasons were desirous of procuring its extension to King street. To do this, it would have to pass through the lands of Kamm and the plaintiff, and a strip sufficient for that purpose would either have to be bought or condemned, and paid for by the defendant. As the Kamm tract was intersected by a ravine which would have to be spanned by a bridge, or built up by filling in the requisite width, the cost of the proposed extension of such street would necessarily be heavy, and involve an expensive outlay by the city. In consequence of this state of facts, it was important to secure a right of way for such street through these lands from the owners, who would be affected by the proposed extension, without cost, or by dedication by deed, in order to diminish as much as possible the expense, and to induce the city to undertake the project. Dr. William H. Watkins, who seems to have been the active manager and representative of the residents favoring the proposed extension, early discovered, by interviews and consultations with the city authorities, officially and unofficially, that the heavy expense which the undertaking involved would constitute the main objection to its success; and in order to lessen the weight of that objection, and to more favorably recommend the matter to the authorities, upon the suggestion of one of the city officials, he saw that it would be advisable to procure deeds of dedication from such owners to be delivered, upon the condition that the proposed extension of such street be authoritively ordered and carried into effect. It needs also to be stated that the land in controversy constituted the extreme end of such proposed street extension; and unless it was opened through its entire length, and especially through Kamm, it could be of no possible convenience or benefit to the plaintiff, but rather an actual injury and detriment. In the main, these were the facts which confronted the promotion of this street extension, and the circumstance which surrounded it at its inception. And, in the light of these, it is not difficult to understand that Dr. Watkins and others, intent on securing the extension of West Main street, should be anxious to secure a right of way across the lands of the plaintiff by dedication, in furtherance of that project, and as an inducement for the city to act in the matter.

As there could be no object of the plaintiff in donating the locus in quo unless the street was extended, the necessity of the case, as Dr. Watkins recognized, required that he should have the deed of the plaintiff in possession, so as to be able to say, in effect, to the city authorities, that the deed is executed, and to be delivered to you, upon condition that you make the proposed extension. This is the undoubted effect of the undisputed facts, and there is much in the evidence of Dr. Watkins to confirm this view, although the circumstances to which he testified occurred more than 15 years ago, and some of its important features had faded from his memory. He admits that he received the deed to show to the city authorities, and that the object of the deed of dedication was to induce the city to extend Main street, and this is consistent with the idea that he held it as an escrow; and yet he says his recollection is that it was given to him to give to the city authorities, although "he don't pretend to recollect any conversation about it." The truth is, as his evidence indicates, the particulars in respect to this matter had passed out of his mind; yet his own, as the other evidence, clearly...