Sanford v. Wheelan

• Decision Date: 01 June 1885
• Citation: 7 P. 324,12 Or. 301
• Parties: SANFORD v. WHEELAN.
• Court: Oregon Supreme Court

7 P. 324

12 Or. 301

SANFORD v. WHEELAN.

Supreme Court of Oregon

June 1, 1885

Appeal from Umatilla county.

John J Balleray, for respondent.

Richard Williams, for appellant.

THAYER J.

This appeal is from a decree of the circuit court for the county of Umatilla. The respondent commenced a suit in that court against the appellant to enforce the specific performance of a written contract under seal, of which the following is a copy:

"Articles of agreement entered into this eighth day of April, A.D.1882, between Stephen Sanford and James Wheelan Witnesseth, that the said Stephen Sanford has sold, and doth agree, on or before the twenty-second day of April, A.D.1882 to convey unto said James Wheelan, or his heirs or assigns by a good and sufficient warranty deed of release and quitclaim, free from all incumbrances, north half of lot 4, in block 1, in the town of Pendleton, Umatilla county, Oregon, upon said James Wheelan's faithful compliance with the covenants herein contained, by him to be done and performed. And the said James Wheelan doth hereby agree to pay to the said Stephen Sanford the sum of three thousand dollars in gold coin, the consideration money for said premises, in the manner following: Cash in hand upon the execution of the deed hereinbefore referred to, of the sum of $1,500, and the balance within one year from the date hereof. The said James Wheelan further agrees to pay all taxes and assessments that may be levied or assessed upon said premises during the time he shall hold the same under this agreement, and save the said Stephen Sanford harmless therefrom; and the said Stephen Sanford agrees that the said James Wheelan, complying with the covenants herein contained, to be done and performed by him, shall, from the twenty-second day of April, 1882, have and hold possession of said premises to use and occupy as his own in a husband-like manner.

"In witness whereof the parties hereto have set their hands and seals.

"S. SANFORD.

"JAMES WHEELAN.

[Seal.]

[Seal.]

"Executed in presence of

"FRED. PAGE TUSTIN.

"EDGAR J. SOMMERVILLE."

It was alleged in his complaint in the suit that on the said twenty-second day of April, 1882, the time the said conveyance was to be made as provided in said contract, that he prepared a deed of warranty, in terms conveying the said half of the said lot to the appellant, and that he was ready and willing to deliver the same to him, and to put him in possession of the said premises, but that the appellant refused to receive it, or go into the possession of the premises, or perform the contract, and the respondent claimed as relief a decree that the appellant be required to accept the said deed, and to pay him the said sums of money in accordance with said contract, and general relief. The appellant averred in his answer that the said premises were, at the time of the execution of the said contract, and on the said twenty-second day of April, incumbered by mortgages of large amount, one of which was in favor of H.J. Vanschuyver & Co., executed by the respondent to said H.J. Vanschuyver & Co., November 18, 1880, given to secure payment of a promissory note from the respondent to said company for the sum of $1,540.66, with interest thereon from date, at the rate of 1 per cent. per month until paid, and for $50 additional as attorney's fees, in case suit were instituted to collect it; that said note bore date November 17, 1880, and was payable in eight months thereafter. Another of said mortgages was executed by the respondent to S. Rothchild, R. Alexander, and Richard Lambert, to secure the payment of three promissory notes from the former to the latter parties for the respective sums following: $315.04, $622.42, and $203.99, each bearing date the twenty-fifth day of February, 1882, and payable 90 days therefrom, with interest at the rate of 10 per cent. per annum; and contained a provision for the payment of a reasonable attorney's fee in case suit was instituted to collect it; and that both of said mortgages were, at the date of the execution of said contract, and had ever since been, wholly unsatisfied. Other issues were tendered by the answer, but it is unnecessary to notice them.

The respondent, in his reply to said matter, in the answer averred that said appellant had, at the time the contract was executed, actual and personal notice of said incumbrances that he conferred with the mortgagees, and that they assured him that they would interpose no objection to the said sale, and that each of the incumbrances could, by the decree of the court in the suit, be discharged and paid out of the agreed purchase price, which the appellant should be decreed to pay for the premises. The reply contained denials of other portions of the answer, but there was no other issue upon said matter of incumbrance than above mentioned. Testimony was taken in the case tending to prove and disprove the various issues between the parties. The circuit court heard the proofs and allegations, and decreed that the appellant pay into court immediately the sum of $3,000, and that execution issue therefor, and that said sum of money be applied by the clerk of the court to the satisfaction of the said mortgages in the order in which they were mentioned in the answer, and that the deed executed by the respondent and wife, a deed prepared and signed after the commencement of the suit, upon the payment into court of said $3,000, be delivered to the appellant; which is the decree appealed from. The only question of importance to be decided by this court is whether the appellant could equitably be compelled to accept the deed...