Kelley v. Bourne

• Decision Date: 07 December 1887
• Parties: KELLEY v. BOURNE et al.
• Court: Oregon Supreme Court

16 P. 40

15 Or. 476

KELLEY v. BOURNE et al.

Supreme Court of Oregon

December 7, 1887

Appeal from circuit court, Josephine county; L.A. WEBSTER, Judge.

John F Kelley brought suit against Jonathan Bourne, Jr., and others to quiet his title to certain lands situated in Grant's Pass, Josephine county, Oregon. Judgment was rendered for defendant, and plaintiff appealed.

Tannar & Carey, for plaintiff.

S.U Mitchell and Joseph Simon, for defendants.

STRAHAN J.

This suit is prosecuted to quiet the plaintiff's title to certain real property situated in the town of Grant's Pass, in Josephine county, Oregon. The complaint states the necessary facts to bring the case within section 504, Hill, Code. The answer denies the allegations of the complaint, and then alleges, in substance, that long prior to the time of executing the plaintiff's deed, viz., in July, 1885, plaintiff's grantors, H.B. Miller, C.K. Chancellor, Joseph Moss, Solomon Abraham, and T.P. Judson, entered into a certain agreement in writing, by which said parties formed themselves into an association or company for the purpose of buying, owning, holding, leasing, selling, mortgaging, and conveying real property, lands, and tenements in and adjoining the town of Grant's Pass, Josephine county, Oregon; and for the purpose and with the power to carry out the purposes of said association or company, and the agreements of each of the members thereof,--all of which were duly and fully set forth in said agreement in writing, and were well known by plaintiff when he acquired his deed, as alleged in his complaint. That, at the time said plaintiff received his deed from the aforesaid grantors, neither of said grantors had any title to said land, except an undivided equitable interest therein; but said grantors, and each of them, had long prior thereto, viz., on the fourteenth day of July, 1885, divested themselves of title to said land by duly-executed deeds of conveyance thereof to the said Grant's Pass Real-Estate Association, duly witnessed, acknowledged, and recorded,--all of which plaintiff well knew at the time he received his alleged deed from said pretended grantors. The said grantors H.B. Miller, C.K. Chancellor, and Joseph Moss were members, stockholders, and copartners with Solomon Abraham and T.P. Judson in said association, and that Solomon Abraham and T.P. Judson entered into the organization thereof with said H.B. Miller, C.K. Chancellor, and Joseph Moss in good faith; and in consideration of the deed of H.B. Miller, Mary L. Miller, C.K. Chancellor, and Joseph Moss of the land above set forth, and described in plaintiff's complaint, the said Solomon Abraham and Julia Abraham, his wife, executed and delivered to the said association, for the benefit of all the members thereof, including the plaintiff's grantors, as plaintiff well knew, their certain deed of conveyance, duly witnessed and acknowledged, and which deed was afterwards duly recorded in the office of the county clerk of said county by plaintiffs and grantors, for the benefit of said association, to all the following described real estate, viz.: (Here follows description of lands attempted to be conveyed by Abraham to the association.) That, at the same time, T.P. Judson and Jennie Judson, his wife, in consideration of the deed of plaintiff's said grantors to said Grant's Pass Real-Estate Association of the land above set forth, and described in plaintiff's complaint, for the benefit of defendant and other members thereof, also executed and delivered to said association their certain deed in writing, conveying to said association, for the benefit of all the members thereof, all the following described pieces and parcels of land, viz.: (Here follows description of lands attempted to be conveyed by T.P. Judson to the association.) That said T.P. Judson executed said deed in good faith, and for the purposes for which said association was formed by said H.B. Miller, C.K. Chancellor, Joseph Moss, Solomon Abraham, and T.P. Judson. That said H.B. Miller and C.K. Chancellor, Joseph Moss, Solomon Abraham, and T.P. Judson, acting as said Grant's Pass Real-Estate Association, and each individual member thereof for himself, did, on the fourteenth day of July, 1885, make, execute, and cause to be recorded in the office of the county clerk of Josephine county, their certain power of attorney making and constituting A.A. Porter and C.K. Chancellor, two of the defendants herein, the attorneys in fact for each of said parties constituting said Grant's Pass Real-Estate Association, giving full power and authority to said attorneys in fact to sell the real estate of said association, to make contracts with purchasers of said property, and to receive payments thereon, and to do all things necessary in connection with selling and binding the conveyance of the same. That J. Bourne is the successor in interest of Solomon Abraham in the property of said association, by and through the assignment of said Solomon Abraham. Wherefore defendants pray the court for a decree setting aside, canceling, and forever annulling the deed from H.B. Miller and Mary L. Miller and C.K. Chancellor and Joseph Moss to John F. Kelley, and that this suit be dismissed, and for costs and disbursements, and for such other and further relief in equity as to the court may seem meet and proper. There were some other matters set up in the answer, but were, on motion, stricken out. The reply denies the allegations of the answer. The evidence was taken in writing in the court below, and accompanies the transcript. The entire case is therefore before us for examination.

Without particularly noticing the evidence offered on the part of the plaintiff, it may be sufficient to say that it would entitle the plaintiff to the relief demanded, unless his right thereto is defeated by the new matter set up in the answer, and the evidence offered in support thereof. Our attention, therefore, will be first directed to that part of the case.

1. Among other items of evidence offered by the defendants is an agreement in writing, signed by Solomon Abraham, H.B. Miller, C.K. Chancellor, Joseph Moss, and T.P. Judson, dated July 11, 1885, whereby the Grant's Pass Real-Estate Association was formed. The substance of that agreement is as follows: "Know all men by these presents that the undersigned, Solomon Abraham, H.B. Miller, C.K. Chancellor, Joseph Moss, and T.P. Judson, all residents and citizens of the state of Oregon, have, for mutual benefit and profit, formed, and by these presents do form, themselves into an association, under the name of 'The Grant's Pass Real-Estate Association.' The purposes of this association are and shall be, in the name and for the use and benefit of said association, to buy, purchase, own, hold, improve, lease, sell, mortgage, and convey real property, lands, and tenements in and adjoining the town of Grant's Pass, in Josephine county, state of Oregon; and to do and perform all and every act and thing in and about the premises requisite and necessary for the purpose above mentioned. In all purchases, sales, and proceeds of the same, leases, rents, and profits, of property hereunder acquired, sold, leased, or conveyed, the interest of the respective parties to this instrument and agreement shall be as follows, unless otherwise expressly stated and specified to the contrary; that is: The interests of Solomon Abraham shall in all things herein mentioned be seven-fourteenths; the interest of H.B. Miller, C.K. Chancellor, and Joseph Moss, together, shall be six-fourteenths; and the interest of T.P. Judson shall be one-fourteenth. This contract and agreement shall go into effect upon the full and final signing of the same." It was signed and sealed by all the parties thereto on the day above specified.

On the fourteenth day of July, 1885, T.P. Judson and wife made a deed to the Grant's Pass Real-Estate Association, whereby they attempted to convey certain real property in the town of Grant's Pass to said association. On the same day, H.B. Miller and wife, Charles K. Chancellor, and Joseph Moss made a like deed to certain other real property in said town to said association; and on the thirteenth day of July, 1885, Solomon Abraham and wife made a deed to said association, attempting to convey to it another parcel of land situated in said town. On the sixteenth day of January, 1886, Solomon Abraham and wife conveyed all their interest in the real property of the Grant's Pass Real-Estate Association to the defendant Jonathan Bourne, Jr.; and on the twenty-fourth day of August, 1886, H.B. Miller and wife, C.K. Chancellor, and Joseph Moss conveyed to the plaintiff the same real property which they had theretofore included in their deed to the Grant's Pass Real-Estate Association. The land described in this last-named deed is the only land in controversy in this suit.

It is claimed by appellant's counsel that a deed without a grantee named therein is simply void, and that the attempted conveyance to the Grant's Pass Real-Estate Association was ineffectual to create any interest whatever in the real estate attempted to be conveyed, either in the association collectively, or the individuals composing it. To sustain his...