Parks v. Smith

• Decision Date: 20 January 1920
• Citation: 95 Or. 300,186 P. 552
• Parties: PARKS ET AL. v. SMITH ET AL.
• Court: Oregon Supreme Court

186 P. 552

95 Or. 300

PARKS ET AL. v. SMITH ET AL.

Supreme Court of Oregon

January 20, 1920

On Motion to Retax Costs, February 17, 1920.

On Motion to Retax Costs.

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Robert N. Parks and another against William R. Smith and another. Decree for plaintiffs, and defendants appeal. Affirmed as modified.

This is a suit to foreclose a mortgage for $900 and interest. A decree was rendered in favor of plaintiffs, from which defendants appeal.

The defendants, by their answer, pleaded as a counterclaim that the plaintiffs misrepresented the land conveyed to defendants by plaintiffs in exchange for real property of defendants to their damage in the sum of $4,000. The reply put in issue the averments of the answer.

J. M Devers, of Salem (C. A. Hardy, of Eugene, on the briefs), for appellants.

Fred E Smith, of Eugene, for respondents.

BEAN J.

On February 15, 1916, the defendants were the owners of four lots with a frontage of 100 feet and two small houses in the city of San Diego, Cal. The plaintiffs were the owners of all of the W. 1/2 of the N.W. 1/4 and the N.W. 1/4 of the N.E 1/4 and the N.E. 1/4 of the N.W. 1/4 of Sec. 24, Tp. 17 S R. 11 W., W. M., containing 160 acres of land, more or less, in Lane county, Or. The plaintiffs and defendants exchanged their respective properties. Each valued their property at $6,000. There was a mortgage of $800 on the San Diego property which plaintiffs assumed. As an offset to this mortgage defendants executed to plaintiffs a note and mortgage on the Oregon property for $900 with interest. At the time of the trade all of the parties were in San Diego. Plaintiffs had entered the Oregon land as a pre-emption, had not lived on it for about 20 years, and had not seen it for about 12 years. No one else had lived on the land. Defendants allege, as the gist of their answer, that:

"In order to persuade and induce these defendants to make said trade and exchange, the said plaintiffs represented and stated to these defendants that the property of said plaintiffs, being the above-described property, was located only 5 1/2 miles from Mapleton, in Lane county, Or., by wagon road, and only 3 1/2 miles by section line; that all of said land was level and tillable except 2 acres; that there were on said land no big trees except 20 or 30 dead fir or cedar trees; that the river crossed said land at only one place, and that being directly across one 40; that all of said land was low bench or bottom land; that the public highway skirted the said premises; and that said land was of the reasonable market value of $6,000."

"These defendants allege further that the said Lane county land is 10 miles from Mapleton; that there are not to exceed 50 or 60 acres of said land which is level; that the remainder is rough, hilly, precipitous, some of which is inaccessible by reason of its steep and precipitous nature; that practically the whole of said land is heavily timbered with large dead trees, mostly fallen, a part of which timber is what is described as 'an old burn'; that the public highway, which is 60 feet in width, traversed said land in a zigzag manner; that the river enters and crosses said land at three different points, making thereby much of said land valueless."

Defendants also allege that the premises were not worth to exceed $1,200.

It appears that defendant Parks advised plaintiff Smith to inspect the land, but, instead of so doing, he made inquiry in regard to the real property of one Shulte, who had recently been in the neighborhood of the land for about a week, and once went to the land, but did not go over it. Shulte inquired of people living near the land in respect to the same, and states that he informed Smith as to what he had heard, advising him to "discount" the report, and that there were said to be from 60 to 100 acres of tillable land in the tract; that it was brushy and very hard to clear. It is estimated by testimony on behalf of defendants that there are about 50 or 60 acres of bottom and low bench land which is very productive when cleared and can be tilled, and that the balance of the quarter is hilly fern land, of little value. It seems that defendants made an independent investigation in regard to the land, but they relied upon mere hearsay or rumor. Defendant Smith had lived in Lane county prior to the time of the trade, and was informed that the land was covered with brush and small timber and practically unimproved. The timber was examined by a timber cruiser, who estimated the value to be $850, at $1 per thousand. Smith wrote to the postmaster living near the land, inquiring in regard thereto, but did not wait until he received an answer before trading. The defendants were careless and negligent in the transaction. They now complain that it will cost $50 or $60 per acre to clear the land so that it can be cultivated. See Waymire v. Shipley, 52 Or. 464, 473, 97 P. 807. Both parties to the deal puffed their property and greatly exaggerated the value.

The trial court found the San Diego lots were of the fair market value of $2,500. It appears there had been a flood in the locality a short time before the exchange. The lots were about three miles from the business center of the city, with inconvenient street car service, and there was little or no demand for the property except for trade. The trial court fixed the fair market value of the Oregon property at $2,000. We are unable to determine from the evidence which of the properties was at the time of greater value.

We concur in the conclusion of the learned trial judge that the defendants have failed to prove the facts alleged as a defense. The court...