Merchant Land Co. v. Barbour

• Decision Date: 25 March 1913
• Citation: 130 P. 976,65 Or. 235
• Parties: MERCHANT LAND CO. v. BARBOUR.
• Court: Oregon Supreme Court

130 P. 976

65 Or. 235

MERCHANT LAND CO. v. BARBOUR.

Supreme Court of Oregon

March 25, 1913

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by the Merchant Land Company against J.H. Barbour. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, claiming to be the owner in fee simple and in possession of certain described real estate which is not in the possession of any other person, brought this suit to determine the adverse claim of the defendants to the realty in question, alleging that the defendant has no right, title interest, or estate therein. The answer traversed every allegation of the complaint, except that of the corporate character of the plaintiff. It further sets out what for the purposes of this opinion may be termed an agreement entered into between C.H. Merchant and his wife as parties of the first part and R.A. Graham as party of the second part under date of October 16, 1890, whereby the Merchants agreed to sell to Graham and he agreed to buy from the Merchants the realty in question. It also alleges that Graham had paid $10,000 on the purchase price of $90,000 required by the contract, and that on November 8, 1890, Graham executed and delivered to the defendant the following writing: "For and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, I hereby sell, assign and transfer to J.H. Barbour of San Diego California, an equal, one-half interest in a certain land contract recently executed to me by C.H. Merchant and wife of Marshfield, Oregon, by which said Merchant agrees to convey to me for the sum of ninety thousand dollars payable as specified in said contract, that tract of land near the town of Marshfield described in said contract, and comprised in what is known as the 'Railroad Addition' to Marshfield, according to the map of said addition on file in the clerk's office of the county of Coos, Oregon. This assignment is made subject to all the conditions of said contract which are hereby assumed by Barbour, equally with myself. The first two payments under the said contract having been already made by me, said Barbour is to pay me interest at the rate of ten per cent. per annum upon his share thereof, and upon his share of any other advances made or to be made by me until the same are repaid by him. In like manner he is to be allowed by me at the same rate upon any advances in excess of his one-half proportion for such period as such advances are used. When the terms of said contract are complied with, and the deed for the land becomes due thereunder from said C.H. Merchant, the deed shall be made to said Graham and said Barbour and convey an undivided one-half interest to each, it being expressly understood that all money or property received for any portion of said land shall be applied upon the purchase payment of $90,000 until the payment therefor shall be fully completed. After the completion of all payments to C.H. Merchant on account of said land purchase and the execution of deed conveying a one half interest therein to said Barbour, the proceeds of any further sales thereof may be used by said Graham at the rate of interest heretofore specified on said Barbour's half thereof, in the execution of this contract to build a line of railroad from Coos Bay to...