McCourt v. Johns

• Decision Date: 20 June 1898
• Parties: McCOURT v. JOHNS et al.
• Court: Oregon Supreme Court

53 P. 601

33 Or. 561

McCOURT v. JOHNS et al.

Supreme Court of Oregon

June 20, 1898

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Suit by James McCourt against George W. Johns and others for a rescission of a contract for the sale of land and an accounting. There was a cross bill by defendants, asking a foreclosure of a mortgage subsequently executed, and a sale of the property, etc. From a decree in favor of defendants plaintiff appeals. Affirmed.

John McCourt, for appellant.

G.G Bingham and W.H. Holmes, for respondents.

WOLVERTON J.

On September 16, 1891, the plaintiff became the owner, by mesne assignments and transfers, of a certain bond for a deed made executed, and delivered by George W. Johns and Julia A Johns, widow, to Edward Snell, June 21, 1886, whereby, in consideration of the sum of $7,255.52 to be paid by him on June 21, 1896, without interest, and that he would assume the payment of $1,000 and accumulating interest due the school fund of the state of Oregon, they obligated themselves to convey to the said Snell or his assigns certain real property situate in Marion county, Or., described as containing 229.32 acres. Snell executed his note for the said sum of $7,255.52, conditioned as by the bond indicated; and prior to its maturity he and his assigns paid the amount due the school fund, and $255.52 upon the note. On the 28th day of September, 1895, in a suit then pending in the circuit court of the state of Oregon for Marion county, against James McCourt, the plaintiff herein, and George W. and Julia A. Johns, two of the defendants herein, and others, it was duly adjudged and decreed that the Salem Improvement Company and other plaintiffs therein were the owners in fee, and entitled to the possession, of 6.28 acres of said land, thereby ousting McCourt and the said Johnses therefrom. It was further decreed therein that McCourt and the Johnses pay the costs of suit, amounting to $426. It is shown by the testimony that the said George W. and Julia A. Johns were not the owners nor entitled to the possession of another small parcel of such premises, containing 4.9 acres; and it is further apparent that, by an error of computation, the number of acres mentioned in the bond is 3.75 acres in excess of the actual acreage according to the description. On June 20, 1896, plaintiff made to defendants George W. and Julia A. Johns an offer in writing to pay the amount remaining due upon said promissory note, and to perform all the conditions of said bond on his part, to be accepted by defendants at their option on either the 20th, 21st, or 22d days of the same month, and notified them of the absence of title to the several parcels hereinbefore alluded to, and of their inability to convey the same, and that if they were unable or unwilling to convey to plaintiff a good and sufficient title to all the lands described in such bond, and surrender full possession thereof, he would rescind their contract, and demanded of defendants repayment of all moneys paid under the terms of the bond, together with the reasonable value of all improvements made upon the premises during the time of its occupancy by the plaintiff and his predecessors. On the same day, defendants offered to deliver to plaintiff a deed executed by them covering the lands described in the bond; and on the 10th day of July, 1896, the defendant George W. Johns tendered to the plaintiff a warranty deed to all the lands described in the bond, in accordance with its terms and conditions, together with a release of the mortgage executed by George W. Johns to Julia A. Johns, and a deed from the Salem Improvement Company of all its interest in and to said premises, and demanded the payment of the amount due upon the $7,255.52 note, and notified plaintiff in writing that he was ready and willing to comply with all the terms and conditions of said bond. The plaintiff refused to accept the deeds and releases, and failed to pay the sum demanded, but notified defendants of his rescission of the contract. George W. Johns assigned his interest in the $7,255.52 note to Julia A. Johns, and thereafter, on December 31, 1886, to secure the payment of a certain other promissory note of $10,500, with interest at 6 per cent. per annum, due from him to the said Julia A. Johns, he made, executed, and delivered to her a mortgage upon all his interest in the premises described in the bond. Subsequently, another mortgage was given for the purpose of correcting some errors discovered in this one. The releases above referred to were intended as a discharge of both these mortgages. Prior to the commencement of this suit, the said Julia A. Johns became indebted to the defendant John Hughes; and, to secure the payment of such indebtedness, she indorsed and assigned to him the said notes of Snell and George W. Johns, and the mortgage securing the latter. The plaintiff prays a decree declaring a rescission of the bond or contract of sale, for the recovery of the part of the consideration paid, and for an accounting and recovery for expenditures made in improving the premises. The court below decreed, in accordance with the prayer of the defendants, a foreclosure of the bond and of the mortgage subsequently executed, and directed that the proceeds arising from a sale of the premises under such foreclosure be applied--First, to the payment of the costs of suit; second, to the payment of the said indebtedness of Julia A. Johns to the defendant John Hughes; third, to the payment of the Salem Improvement Company's claim for costs in the former suit; and, fourth, to the payment of the balance due on said bond to Julia A. Johns, after deducting the foregoing claims, and the overplus, if any remains, to the plaintiff.

To reverse the decree, the plaintiff prosecutes this appeal, wherein two questions are presented for our consideration: (1) Was plaintiff's alleged tender of payment in writing sufficient? And (2) was he entitled to a rescission of the contract by reason of the inability of George W. and Julia A. Johns to convey a good title to a small portion of the premises described in the bond?

As pertaining to the first, the defendants tender a distinct issue in their answer, in the following language: "Admit that plaintiff, on or about the 19th day of June, 1896, made to the defendants George W. Johns and Julia A. Johns an offer in writing, substantially as pleaded in their complaint; but these defendants say that the...