Schetter v. Southern Or. Imp. Co.

• Citation: 19 Or. 192,24 P. 25
• Parties: SCHETTER v. SOUTHERN OR. IMP. CO.
• Decision Date: 01 May 1890
• Court: Supreme Court of Oregon

24 P. 25

19 Or. 192

SCHETTER v. SOUTHERN OR. IMP. CO.

Supreme Court of Oregon

May 1, 1890

Appeal from circuit court, Coos county; R.S. BEAN, Judge.

This suit comes into this court on appeal from a decree in favor of the respondent and against the appellant. The litigation commenced on the 1st day of September, 1888. On that day the defendant in this suit commenced an action of ejectment against Arago Lodge No. 28 of the Independent Order of Odd-Fellows, W.C. Phillips, Ole Evenson, and the respondent Frederick Schetter, to recover the possession of lots 6 and 7, in block 14, in the town of Empire City, Coos county, Or. The respondent filed his answer in said action at law, and at the same time filed a cross-bill under section 381 Hill's Code, claiming that he was entitled to relief arising out of facts requiring the interposition of a court of equity, and material for his defense. Upon the trial the court found the general equities to be with the appellant,--found it to be the owner in fee of the property in controversy, and that it was entitled to the possession of the same upon paying to the plaintiff the sum of money thereinafter specified; the same being the reasonable value of the permanent improvements made upon said premises by the plaintiff, less the reasonable rental value thereof. The next paragraph of the decree is as follows: "And it is further ordered, adjudged, and decreed by the court that within sixty days from and after the date of this decree, the defendant herein shall pay in to the clerk of this court, for the use and benefit of the plaintiff herein, the sum of nine hundred and sixty-nine dollars, less the defendant's costs and disbursements in this suit, and the costs and disbursements in said action to recover said real property and that the same be paid to the plaintiff by the clerk on demand." Other parts of the decree provide for the defendant's being placed in possession of the property in controversy on certain conditions.

The facts upon which the plaintiff based his right to equitable relief, so far as may be necessary to a proper understanding of the question involved, may be briefly summarized from the complaint: That about November, 1883, the Southern Oregon Improvement Company was a private corporation organized under the laws of the state of Oregon, and doing business at Empire City; that the Boston Safe-Deposit & Trust Company was also a private corporation, organized under the laws of the state of Massachusetts and did business in the state of Massachusetts and in the state of Oregon; that about the month of May 1885, the said Southern Oregon Improvement Company was the owner in fee of the two lots in controversy, and at said time the Boston Safe-Deposit & Trust Company was the owner and holder of a mortgage lien upon a large amount of real property, including the two lots in controversy, in order to secure the payment of certain mortgage bonds then and thereafter to be issued by said improvement company, not to exceed $2,000,000. The respondent claims that in the month of May, 1885, the said improvement company sold the said lots 6 and 7 to him, and did agree to cause the same to be released from said mortgage in consideration that respondent would convey, and cause to be conveyed, to it, his own and the interest of others in certain tide-lands containing about 367.65 acres. In the year 1887 the Boston Safe-Deposit &amp Trust Company foreclosed said mortgage, and all of the land described in said mortgage, including the lots in controversy, was sold under said decree to William W. Crapo and William J. Rotch. But the respondent was not a party to said suit, and in December, 1887, the said Crapo & Rotch conveyed all of said property to the appellant; and it is alleged that the appellant holds the legal title to said lots for the respondent. The respondent alleges that he has been in possession of said lots ever since May, 1885, and has placed lasting improvements thereon to the value of $2,000; that the improvement company and each and all of its successors in interest, have neglected to convey said lots to the plaintiff, although he has frequently demanded a conveyance, and at the same time he expressed his readiness to comply with the terms of said agreement on his part, and that said trust company neglected to release its lien. This is a very brief epitome of the complaint, the material part of which is denied by the answer. It appears from the answer that the business of said improvement company was such as to authorize a minority of its directors to reside out of this state; that its board of directors consisted of seven members, three of whom resided in the state of Massachusetts, and that by its by-laws three directors constituted a quorum to do business; that its capital stock was $4,000,000, and was mainly owned by persons residing in Massachusetts and contiguous eastern states; that each of the four directors in Oregon owned one share of said stock, and no more; that the plaintiff was a director of said improvement company from and after the 26th day of June, 1884, until said corporation ceased to do business; that in November, 1884, one Metcalf was elected a director of said corporation,...