Skinner v. Furnas

• Decision Date: 27 December 1916
• Citation: 161 P. 962,82 Or. 414
• Parties: SKINNER v. FURNAS ET AL.
• Court: Oregon Supreme Court

161 P. 962

82 Or. 414

SKINNER v. FURNAS ET AL.

Supreme Court of Oregon

December 27, 1916

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Suit in the nature of a cross-bill in equity by Mrs. Georgia A Skinner against Leroy W. Furnas and wife and others, defended only by the named defendants. Decree for plaintiff, and the named defendants appeal. Decree affirmed.

This is a suit by Mrs. Georgia A. Skinner against Leroy Furnas and Grace M., his wife, J. H. Reid and Genevieve, his wife, and the Umatilla Project Orchard Lands Company, a corporation, to enforce the specific performance of an oral agreement to convey real property. Mr. Furnas, being the owner in fee of the southwest quarter of the northwest quarter of section 11 in township 4 north, range 28 east of the Willamette meridian, near Hermiston, Or., on October 1, 1910, with his wife conveyed such tract of land and other real property containing in all 320 acres, to Mr. Reid, who was to discharge a mortgage of $2,500 on the premises. The latter paid a substantial part of the consideration, and evidenced the remainder by three promissory notes of $10,000 each respectively maturing on the 1st day of October each year thereafter, with interest at 7 per cent. from date, and to secure the payment thereof he and his wife at the same time executed to Mr. and Mrs. Furnas a mortgage of the entire property. About November 1, 1910, at the solicitation of W. H. Skinner, the plaintiff's husband, Reid, in consideration of $450, to be paid when a deed was executed, agreed to sell and convey a strip of land out of the southeast corner of the 40-acre tract, particularly described, possession of which small piece was taken, a house built thereon, and other improvements were made thereto, costing about $4,500. Reid and his wife thereafter executed to the Umatilla Project Orchard Lands Company, a corporation, a quitclaim deed of all their interest in and to the northwest quarter of section 11, in the township and range mentioned. Default was made in the payment of the promissory notes, whereupon the mortgage securing them was foreclosed, in which suit, with others, Mr. Skinner, but not his wife, was made a party defendant. At a sale under the decree Furnas and his wife, on February 14, 1914, became the purchasers for the amount of the debt, costs, etc. They, on March 27, 1915, commenced an action against Mr. Skinner alone, to recover the possession of the small tract on which the house was built. He filed an answer in that action, denying the averments of the complaint, and for a separate defense alleging that he was not then, nor had he ever been, in possession of the demanded premises, nor did he claim any title or interest therein or right thereto. The reply put in issue the allegations of new matter in the answer, and the cause, being tried, resulted in a verdict and judgment in favor of Mr. Skinner, which determination has become final. Thereafter Furnas and his wife commenced against Skinner another action, in which his wife was joined, to recover possession of the small tract. An answer having been filed in that action, Mrs. Skinner, as plaintiff, commenced this suit in the nature of a cross-bill in equity, setting forth the facts hereinbefore stated, and averring that about November 1, 1910, she "purchased from said J. H. Reid" a tract of land, beginning at a point where the north line of Ridgeway street in the town of Hermiston intersects the east boundary of the southwest quarter of the northwest quarter of section 11, township 4 north, range 28 east, and running thence north 200 feet, thence west 180 feet, thence south 200 feet, to the north line of Ridgeway street, and thence east 180 feet to the place of beginning. "That thereupon the plaintiff entered into the immediate possession of the said piece or parcel of land, and has ever since remained in the quiet, peaceable and undisturbed possession thereof." The complaint details the improvements so made upon the premises, and avers:

"That thereafter plaintiff learned defendant Reid could not make plaintiff a good and sufficient deed of conveyance, and this plaintiff caused the said Grace M. Furnas and the said Leroy W. Furnas to be notified of the purchase of the said tract of land from the said J. H. Reid, and that the purchase price had not been paid."

That the Umatilla Project Orchard Lands Company secured its deed with knowledge of the plaintiff's possession of a small part of its land and of her rights thereto, and that Furnas and wife, upon the sale of the entire lands under the decree of foreclosure, took the naked legal title of the disputed tract with knowledge that the plaintiff was in the possession thereof and had placed valuable and permanent improvements thereon. With the filing of the complaint herein the plaintiff deposited with the clerk of the trial court $450 and interest at 7 per cent. per annum from November 1, 1910, amounting to $615, for the benefit of the persons who might be entitled thereto.

The defendants Reid and his wife and the Umatilla Project Orchard Lands Company, having been duly served with process in this suit, each failed to appear or answer. The defendants Furnas and his wife demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit. The demurrer was overruled, whereupon they, alone answering, denied the material averments of the complaint, and for a further defense alleged that about January 1, 1911, Mr. Skinner sought to enter into an agreement with Mr. Reid to purchase a small tract of land; that they could not concur in the boundaries nor as to the purchase price, and thereupon Skinner began the erection of the dwelling and the making of the improvements--

"without any contract or agreement with the said J. H. Reid * * * and without the knowledge or consent of these defendants or either of them. * * * That the said plaintiff never at any time had the sole possession or sole occupancy of the said premises, or any part thereof, and never expended any moneys or placed any improvements upon said tract of land, nor performed anything with respect thereto, except to reside in said house as the wife of the said W. H. Skinner."

The reply put in issue the averments of new matter in the answer, and further alleged that Furnas and his wife ought to be estopped to aver or prove that Mr. Skinner claimed to be the owner of the demanded premises, for that the judgment rendered in his favor in the first ejectment action had conclusively determined the matter to the contrary. The cause was thereupon tried, resulting in a decree as prayed for in the complaint, awarding the money so deposited to Furnas and his wife, and requiring them, within 30 days, to execute to Mrs. Skinner a good and sufficient deed of the premises, and that in default thereof the decree stand as and for a conveyance of the tract of land in dispute. From this decree Mr. and Mrs. Furnas appeal.

J. H. Raley, of Pendleton (Raley & Raley, of Pendleton, on the brief), for appellants. Jas. A. Fee and Alger Fee, both of Pendleton, for respondent.

MOORE, C.J. (after stating the facts as above).

Invoking the doctrine announced in Barrett v. Schleich, 37 Or. 613, 617, 62 P. 792, where it is said:

"The parol agreement to convey real property is the foundation, and the part performance thereof by the purchaser is the superstructure, which, considered as a unity, authorizes a court of equity specifically to enforce the contract" [161 P. 964] --it is maintained by appellants' counsel that, the complaint having failed to aver that a parol agreement to purchase the tract of land was ever consummated, or that pursuant to the terms of any contract possession of the premises was taken and improvements were made, the initiatory pleading does not state facts sufficient to constitute a cause of suit, and, this being so, an error was committed in overruling the demurrer interposed on that ground, which mistake was not cured by answering over. It is argued by plaintiff's counsel that the use of the word "purchase" in the primary pleading implies the consummation of an agreement by the vendor to sell, and the purchaser to buy, property, and that having alleged a purchase of the land, and "that thereupon the plaintiff entered into the immediate possession" thereof, reasonably shows that possession was taken pursuant to the terms of the contract, and, such being the case, the complaint is sufficient in these particulars. In support of the legal principle thus asserted reliance is placed upon the case of Cantwell v. Barker, 62 Or. 12, 124 P. 264, where in a statement of the facts involved it is said:

"On July 14, 1911, plaintiff commenced this suit against Barker and wife to compel specific performance of a contract of sale of certain town lots, alleging that in October, 1907, defendants, by a verbal contract, sold to plaintiff lots 5 and 6, in block 30, of Condon and Cornish's addition to Condon, Or., for the agreed price of $800; that, immediately upon the purchase, plaintiff entered into possession of the lots and expended $230 in erecting an additional building thereon; and that he has remained in exclusive possession as owner thereof," etc.

An examination of the printed abstract in that case shows that paragraph 2 of the complaint reads:

"That on or about the month of October, 1907, the defendants W. L. Barker and Annie L. Barker, by a verbal contract of the last-named date, sold and delivered possession of the above-described premises (referring to the preceding paragraph of the complaint) to the plaintiff herein, under said contract, and he, the plaintiff, has continued in possession of said premises from that time until the present, and has made valuable

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