House v. Jackson

• Decision Date: 24 April 1893
• Citation: 24 Or. 89,32 P. 1027
• Parties: HOUSE v. JACKSON et al.
• Court: Oregon Supreme Court

32 P. 1027

24 Or. 89

HOUSE v. JACKSON et al.

Supreme Court of Oregon

April 24, 1893

Appeal from circuit court, Multnomah county; George H. Burnett Judge.

Action by E. House against Ellen L. Jackson and William R. Jackson for the specific performance of a contract to convey certain land. From a decree dismissing the complaint, plaintiff appeals. Reversed.

W.W Thayer and L.A. McNary, for appellant.

S.B. Huston, for respondents.

MOORE, J.

This is a suit brought by the appellant against the respondents to compel the specific performance of a contract to sell real property, contained in the following agreement:

"This indenture of lease, made and entered into on this 19th day of January, 1887, by and between Ellen L. Jackson and Wm R. Jackson, her husband, of Washington county, Oregon parties of the first part, and J.B. Haley, of Multnomah county, Oregon, party of the second part, witnesseth that the said parties of the first part, for and in consideration of the yearly rental of one hundred and fifty dollars, and the covenants and agreements hereinafter mentioned, lease unto said party of the second part, for the term of five years and three months from the first day of January, 1887, the following described premises, to wit That certain tract of land situated on Sauvies island, and known as the 'Jackson Ranch,' and more particularly described in certain deeds from Mier & Frank and Richard Hall to W.R. Jackson, and recorded in the records of Multnomah and Columbia counties, Oregon, and containing two hundred and eighty-seven (287) acres, more or less. And the said party of the second part herein agrees to pay the said yearly rental of one hundred and fifty ($150) dollars in the following manner, to wit: Seventy- five ($75) dollars on the first day of July and the thirty-first (31st) day of December of each and every year during the continuance of this lease. And the said parties of the first part further agree to sell said tract of land, and convey the same by a good and valid deed, to the said party of the second part, at any time before the expiration of this lease, for the sum of twenty-five hundred ($2,500) dollars. And the said party of the second part hereby agrees that in case he fails to purchase said tract of land before the expiration of this lease, for the above-stipulated consideration, he shall forfeit to the said parties of the first part all rights and claims to any improvements that he shall have made thereon. And the parties to this agreement and lease hereby bind themselves, their heirs, executors, administrators, or assigns, to the faithful performance of the covenants and agreements herein mentioned. In witness whereof, we have hereunto set our hands and seals on the day and year above written. Ellen L. Jackson. [ Seal.] Wm. R. Jackson. [ Seal.] John B. Haley, [Seal.] Executed in the presence of Chas. A. Butler, J.W. Morgan.

"It is further stipulated and agreed by and between the parties of the first and second part, in the above and foregoing lease, that all said sums of money therein agreed to be paid by said J.B. Haley, for rent or otherwise, shall be paid to the said Ellen L. Jackson, her heirs and assigns. Ellen L. Jackson. [ [Seal.] Wm. R. Jackson. [ Seal.] John B. Haley. [ Seal.] Executed in the presence of Chas. A. Butler, J.W. Morgan."

"That J.B. Haley went into possession and occupied said premises; paid the rent due thereon until about November 30, 1889, when, in consideration of $200, he assigned all his interest therein to one W.G. Pomeroy. That Pomeroy went into possession, paid the rent, and occupied the premises until about September 12, 1890, when, in consideration of $500, he assigned all his interest therein to D. Reghetto and plaintiff, who went into possession thereof. That said Reghetto, about December __, 1891, assigned his interest to plaintiff, who continued to occupy the premises, paid the rent due thereon, and on January, 1892, tendered to defendants $2,500, and demanded a deed thereto. That the defendants refused to accept said tender, or to execute said deed, whereupon plaintiff deposited said amount with the clerk, and commenced this suit.

After the issues were completed the cause was referred to George A. Brodie, who found that the equities were with the plaintiff, and that he was entitled to a decree; but the court set aside said findings, and entered a decree dismissing the complaint, from which the plaintiff appeals. To support the decree, the respondents contend--First, that the contract is not mutual; second, that the premises cannot be identified from the description; and, third, such contracts cannot be enforced by an assignee.

1. The rule is well established that, to entitle a party to specific performance of a contract, there must have been at the time of its execution a mutuality, both as to the obligation and the remedy,--an agreement to buy, as well as an agreement to sell,--and that a party not bound by the agreement has no right to call upon the court to enforce performance against the other party, by expressing a willingness to accept the terms of the contract. Wat. Spec. Perf. § 196. This general rule, like most others, has its apparent exceptions. "It is now well settled that an optional agreement to convey, or to renew a lease, without any covenant or obligation to purchase or accept, and without any mutuality of remedy, will be enforced, in equity, if it is made upon proper consideration, or forms part of a lease or other contract between the parties, that may be the true consideration for it." Id. § 200. Such exception is less real than apparent, for when the option is accepted the minds of the parties have met, and agreed upon the terms of the contract, and it thus becomes mutual, and is enforceable by either party. If no consideration for the option exists, it may, upon notice to the other party, be withdrawn at any time before acceptance. In the case at bar there is no agreement on the part of Haley to purchase the property, and his option is not binding upon the defendants unless some consideration therefor existed at the time the contract was executed. Was there any consideration for the option? is the first question presented. It has repeatedly been held that a lease of real property, containing an option to purchase the same, and the contract to pay the rent, was a sufficient consideration to support the option. In Souffrain v. McDonald, 27 Ind. 269, Elliott, J., in support of this doctrine, says: "The stipulation, on the one side, to lease the lot for a period of two years, with the right of the lessees, within that time, to purchase the same at the price and on the terms stated in the agreement and, on the other party, to pay the rent agreed upon, and to erect the fence, must be considered as constituting one entire agreement, each particular stipulation forming an inducement thereto. The agreement to pay the rent and build the fence must be deemed to have been made in consideration, as well for the privilege of becoming the purchasers of the lot, as for its use." In Stansbury v. Fringer, 11 Gill & J. 149, real property had been leased for a term of 12 years in consideration of the payment of the taxes, and of the erection of a dwelling house thereon,...