Sievers v. Brown

• Decision Date: 27 February 1899
• Citation: 56 P. 171,34 Or. 454
• Parties: SIEVERS v. BROWN.
• Court: Oregon Supreme Court

56 P. 171

34 Or. 454

SIEVERS v. BROWN.

Supreme Court of Oregon

February 27, 1899

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by Henry H. Sievers against Samuel B. Brown. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover the value of certain crops grown by plaintiff upon defendant's land, but appropriated by the latter to his own use. The transcript shows that plaintiff having agreed to purchase from defendant a tract of land in Marion county for the sum of $3,200, paid of the purchase price, on September 8, 1892, the sum of $600, and executed his promissory note for the balance, payable in eight years in annual installments of $325, which note provided that, if default should be made in the payment of any of said installments when they severally matured, defendant might elect to consider and treat the whole sum as then due and payable; that, in consideration of said payment and promise defendant executed to plaintiff a bond for a deed, whereby he covenanted, upon the payment of said note, to convey the premises, by a good and sufficient deed, free from all incumbrances, and plaintiff, by defendant's license entered into possession thereof; that, on the maturity of the first installment, defendant demanded payment of the same, but plaintiff, claiming that the land was not correctly described in the bond, and that defendant's title thereto was defective, refused to comply therewith; that defendant instituted a suit in the circuit court of Marion county against the heirs of his grantors, and obtained a decree correcting the description, and, having otherwise perfected his title to the premises, he executed and tendered to plaintiff a deed thereof, and demanded payment of said note, but plaintiff refused to pay any part thereof, whereupon defendant commenced a suit in said court against him, and obtained a decree correcting the description contained in the bond, foreclosing plaintiff's equitable interest in the premises, which were ordered sold, and the purchaser put in the immediate possession thereof, in pursuance of which the sheriff of said county sold the land to defendant, and on July 31, 1894, evicted plaintiff therefrom, and restored the possession to defendant; that when said land was sold there was a quantity of wheat and oats growing thereon of the reasonable value of $92.66, and vegetables of the value of $75, and a lot of hay cut from said premises stored in the barn, all of which defendant appropriated to his own use. The cause being at issue, a trial was had, and the jury, in pursuance of the court's instructions, found that plaintiff was only entitled to the sum of $37.50, the value of the hay, and, judgment having been rendered thereon, plaintiff appeals.

A.H. Tanner, for appellant.

W.H. Holmes, for respondent.

MOORE C.J. (after stating the facts).

It is contended that, if the crops be regarded as part of the realty, no title thereto vested in defendant, under the foreclosure proceedings, until the sheriff's deed was executed; that plaintiff, having planted them, was the owner thereof; and that defendant, having converted them to his own use, is liable for their value.

A bond for a deed transfers to the obligee an equitable interest in the premises agreed to be conveyed, which is measured by the amount paid on account of the purchase. The legal title remains in the obligor, in trust for the purchaser, who, upon payment of the entire consideration, acquires the whole equitable interest, and may maintain a suit to compel the specific performance of the contract, if the obligor refuse to keep his covenants. In Lysaght v. Edwards, 2 Ch.Div. 499, Jessel, M.R., in commenting upon the purport of an agreement to convey real property and the method of foreclosing the purchaser's equity, says: "It appears to me that the effect of a contract for sale has been settled for more than two centuries. Certainly it was completely settled before the time of Lord Hardwicke, who speaks of the settled doctrine of the court as to it. What is that doctrine? It is that, the moment you have a valid contract for sale, the vendor becomes, in equity, a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser; the vendor having a right to the purchase money, a charge or lien on the estate for the security of that purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession. In other words, the position of the vendor is something between what has been called a naked or bare trustee, or a mere trustee (that is, a person without beneficial interest), and a mortgagee who is not, in equity (any more than a vendor), the owner of the estate, but is, in certain events, entitled to what the unpaid vendor is, viz. possession of the estate and a charge upon the estate for his purchase money. Their positions are analogous in another way. The unpaid mortgagee has a right to foreclose; that is to say, he has a right to say to the mortgagor, 'Either pay me within a limited time, or you lose your estate,' and in default of payment he becomes absolute owner of it. So, although there has been a valid contract of sale, the vendor has a similar right in a court of equity. He has a right to say to the purchaser, 'Either pay me the purchase money, or lose the estate.' Such a decree has sometimes been called a decree for cancellation of the contract. Time is given by a decree of the court of equity, or now by a judgment of the high court of justice; and, if the time expires without the money being paid, the contract is canceled by the decree or judgment of the court, and the vendor becomes again the owner of the estate." It will be observed, from the language quoted, that in England, if the vendee, under a contract for the purchase of real property, make default in the payment of the purchase money, the vendor may maintain a suit to cancel the contract, which is equivalent to a strict foreclosure. In Button v. Schroyer, 5 Wis. 598, it was held that a decree foreclosing a contract for the conveyance of real property, which ordered a sale of the premises, was erroneous, the court saying: "The proper decree in such cases is that the money due upon the contract be paid within such reasonable time as the court may direct, or that the vendee be foreclosed of his equity of redemption." To the same effect is the case of Baker v. Beach, 15 Wis. 99.

The justice of the rule, announced in England and followed in Wisconsin, may well be doubted, and...