Montgomery v. Heider
| Decision Date | 17 July 1934 |
| Parties | MONTGOMERY et al. v. HEIDER et al. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Yamhill County; George R. Bagley, Judge.
Action by R. H. Montgomery and another against Otto W. Heider and another. From an adverse decree, defendants appeal.
Affirmed.
Frank Holmes, of McMinnville, and Otto W. Heider, of Sheridan, for appellants.
James E. Burdett, of McMinnville (Joseph Van Hoomissen, of Portland, on the brief), for respondents.
On April 27, 1928, plaintiffs bought, on a conditional sales contract from defendants, a certain tract of land in Yamhill county, Or., to be paid for in installments and, when fully paid for, defendants were to convey by warranty deed. The contract contained the usual "time essence" clause with option by vendors of forfeiture for failure on the part of vendees to live up to any and all of the conditions of the contract.
Plaintiffs thereupon entered into possession of the premises and remained in the actual possession thereof until March, 1932 when they moved to Sheridan, where they remained until about July 8, 1932, when they moved to the vicinity of Sherwood but all of the time some of their furniture and personal property remained on the tract of land in question.
About September 1, 1932, defendants rented the house and outbuildings on the premises in question to a family named Kilmer, who immediately went into possession thereof.
On or about September 5, 1932, plaintiffs visited the place, found it occupied by the Kilmers, who showed them a receipt for three months rent paid in advance. Plaintiffs thereupon called upon defendant Otto Heider. The parties disagree as to what took place between them from that time on. Thereafter plaintiffs commenced this action to recover the amounts paid on the above installment contract.
On May 28, 1933, they filed their third amended complaint wherein they alleged the foregoing facts, attached a copy of the contract, set out the amounts paid thereon and the dates of payment, and further alleged, in substance, that on or about August 19, 1932, defendants, without demand or notice rescinded and terminated said contract, and without notice or right, and without any proceeding in law or equity, took possession of said premises. They further alleged that they (plaintiffs) had made certain improvements and the value thereof.
To this complaint, defendants filed an answer in which they denied that they rescinded the contract or took possession of the premises, but alleged that plaintiffs abandoned said premises and said contract and that the defendants were obliged to put some one in possession of the buildings in order to comply with certain conditions of a Federal Land Bank mortgage on the premises and to prevent a default of said mortgage by reason of a lapse of insurance on the buildings because of their vacancy.
The defendants also alleged a counterclaim in equity and asked for a strict foreclosure of the contract on the grounds that the plaintiffs had violated the conditions thereof.
The cause was heard before the court, who, after hearing the evidence and argument, found against defendants on their counterclaim for foreclosure and made findings and conclusions in favor of plaintiffs; adjusted the compensation for improvements made by plaintiffs; allowed an offset of the reasonable rental value of the premises during the time they were occupied by plaintiff; and entered judgment for the balance of the money paid on the contract; made it a lien upon the premises in question and provided for a deficiency judgment. Defendants appeal.
The amounts paid on the contract are admitted; that some improvements were made by respondents is also admitted, but the value thereof is in dispute. There is practically no disagreement as to the rental value of the premises. Both parties also admit that the "time essence" clause of the contract had been waived. It is also admitted that no proceedings in law or equity had been instituted by defendants in regard to the possession of the premises. The chief question is whether defendants rescinded the contract without notice to plaintiffs and took possession of the premises without right.
We agree with counsel for appellants that there is only one question...
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Morrison v. Kandler
...although having rights of a keeper, exercises control over the property inconsistent with the ownership of the purchaser. Montgomery v. Heider, 147 Or. 523, 34 P.2d 657; Bodding v. Staehli, 146 Or. 370, 30 P.2d 3; Gray v. Mitchell, 145 Or. 519, 28 P.2d 631; Kellogg v. Smith, 70 Or. 449, 142......
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Smeekens v. Bertrand
...of possession may constitute a recission. Knowles v. LaPure, 189 Wash. 456, 65 P.2d 1260 (1937), and Montgomery et ux. v. Heider et ux., 147 Or. 523, 34 P.2d 657 (1934). Forcible and wrongful dispossession of the buyer by the seller may terminate a conditional sale contract. Schon v. Lawren......
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Mohr v. Lear
...by this court are particularly relevant to our inquiry into the fact situation presented by this instant appeal. In Montgomery v. Heider, 147 Or. 523, 34 P.2d 657, plaintiffs had purchased land from the defendants on a conditional sales contract. Plaintiffs sued to recover payments alleging......
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Macomber v. Waxbom
...an action of trespass for damages. Quillen v. Schimpf, 133 Or. 581, 291 P. 1009, or may elect to rescind the contract, Montgomery v. Heider, 147 Or. 523, 34 P.2d 657. The plaintiff contends that a purchaser may not rescind while he is in default. This rule applies when the attempted resciss......