Lange v. Devlin

Decision Date21 March 1916
Citation80 Or. 238,156 P. 260
PartiesLANGE v. DEVLIN ET AL.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by E. D. Lange against J. H. Devlin and another. From a judgment for plaintiff, the defendant Hood River Orchard Land Company appeals. On motion to dismiss the appeal. Appeal dismissed.

On April 23, 1913, E. D. Lange, as the buyer, and the Hood River Orchard Land Company, a corporation, as the seller, signed a contract for the sale of lot numbered 176, "Mosier View Orchards" in Wasco county. Pursuant to the terms of the agreement the buyer took possession of the premises. Afterwards, on March 10, 1914, the plaintiff commenced this suit against the corporation and J. H. Devlin, its selling agent, to cancel the contract and to recover all moneys paid to the seller. A trial resulted in a decree, on December 26 1914, canceling the contract and a judgment against the corporation for moneys received by it. The Hood River Orchard Land Company appealed and filed a technical transcript here on April 29, 1915. On March 2, 1915, the Hood River Orchard Land Company conveyed the land by a warranty deed to William Cavanaugh, covenanting:

"That said corporation is lawfully seised in fee simple of the above-granted premises, that the above-granted premises are free from all incumbrances, except judgment in favor of E. D Lange and that it will, and its successors shall warrant and defend, the same to the said William Cavanaugh his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever."

The warranty deed was supplemented by a quitclaim deed which the corporation executed to William Cavanaugh on July 13, 1915. Cavanaugh and wife afterwards conveyed the property to J. F Martyn. The merits of the cause on appeal were argued, and at the same time the plaintiff moved to dismiss the appeal.

B. E Youmans, of Portland, for appellant. Elton Watkins, of Portland, for respondent.

HARRIS, J. (after stating the facts as above).

The appellant used and dealt with the land as though it then intended fully to accept and accede to the terms of the decree, and it will not be permitted to change the position which it voluntarily assumed. Kellogg v. Smith, 70 Or. 449, 456, 142 P. 330, furnishes a conclusive precedent. See, also, Thomas v. Booth-Kelly Co., 52 Or. 534, 97 P. 1078, 132 Am. St. Rep. 713; Elwert v. Marley,...

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5 cases
  • Kelly v. Tracy
    • United States
    • Oregon Supreme Court
    • December 19, 1956
    ...36 Or. 261, 59 P. 327; Elwert v. Marley, 53 Or. 591, 99 P. 887, 101 P. 671; Kellogg v. Smith, 70 Or. 449, 142 P. 330; Lange v. Devlin, 80 Or. 238, 156 P. 260; Duniway v. Cellars-Murton Co., 92 Or. 113, 170 P. 298, 179 P. 561; Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d ......
  • Miller v. Barker
    • United States
    • Oregon Supreme Court
    • December 31, 1962
    ...decree and that the appeal should be dismissed on the authority of Kellogg v. Smith, 70 Or. 449, 142 P. 330 (1914), and Lange v. Devlin, 80 Or. 238, 156 P. 260 (1916). The Kellogg and Lange cases are distinguishable from the case at bar. In both, the vendors were defendants in suits to resc......
  • Pacific General Contractors v. Slate Const. Co.
    • United States
    • Oregon Supreme Court
    • December 3, 1952
    ...illustrations of waiver of the right of appeal by collateral recognition of the validity of the judgment appealed from see, Lange v. Devlin, 80 Or. 238, 156 P. 260, and Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d We do not have here a judgment with several provisions. W......
  • Isenhart v. Isenhart
    • United States
    • Oregon Supreme Court
    • April 27, 1956
    ...she later sought by her appeal to challenge. The motion to dismiss is sustained. Sherman v. Sherman, 89 Or. 130, 173 P. 572; Lange v. Devlin, 80 Or. 238, 156 P. 260; Kellogg v. Smith, 70 Or. 449, 142 P. 330; Elwert v. Marley, 53 Or. 591, 99 P. 887, 101 P. ...
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