Lange v. Devlin
| Decision Date | 21 March 1916 |
| Citation | 80 Or. 238,156 P. 260 |
| Parties | LANGE v. DEVLIN ET AL. |
| Court | Oregon 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 defendantHood 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...
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Kelly v. Tracy
...Railway Co., 26 Or. 377, 38 P. 306; Moores v. Moores, 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 824; Lewis v. Shook, 182 Or. 483, 188 P.2d 148;... -
Fluhrer v. Bramel
...court, as by acquiescing therein by payment or part payment, or by accepting the benefits thereof. Moore v. Floyd, 4 Or. 260; Portland Const. Co. v. O'Neil, 24 Or. 54 (32 Pac. 764)." In
Lange v. Devlin, 80 Or. 238 (156 P. 260), it was "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... -
Miller v. Barker
...argue that the possession and operation of the motel by the Barkers evidences an acceptance of the 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 rescind contracts. But in those cases the vendor's objectionable 'dealing' with the propertyhe will not be permitted now to change the position which he voluntarily assumed, and is estopped from asserting a different attitude * * *.' (Kellogg v. Smith, supra, at 456, 142 P. at 333 and see Lange v. Devlin, supra, at 239, 156 P. at 261.) Here, the defendants Barker resumed possession of the motel before the decree was rendered by the trial court. That this is a distinction which removes the present case from the early strict rule of Kellogg and Lange is recognizedfavor of the plaintiff-vendee. The plaintiff moved to dismiss the appeal for the reason that the defendant had acquiesced in the decree in that he had leased the service station to a third party. The court dismissed the appeal on the authority of the Lange case, supra. However, upon petition for rehearing, the court '* * * it is shown that the lease from [the vendor] W. E. Bramel to [the third party] * * * was made before the decree of the lower court was rendered in the above entitled...