Slattery v. Gross

• Decision Date: 03 February 1920
• Citation: 96 Or. 554,187 P. 300
• Parties: SLATTERY v. GROSS ET AL.
• Court: Oregon Supreme Court

187 P. 300

96 Or. 554

SLATTERY v. GROSS ET AL.

Supreme Court of Oregon

February 3, 1920

Department 2.

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

Action by Minda S. Slattery against G. G. Gross and others, in which Nancy J. Shelley and another filed a cross-bill. From an adverse decree, plaintiff appeals and cross-defendants file a cross-appeal. Modified.

This four-cornered and very complicated suit arose over a real estate transaction in the city of Eugene. By this transaction one Matlock and the defendants Gross and McCallum contracted to purchase from the defendants Nancy J. Shelley and J. M Shelley a certain lot in said city for the sum of $10,750. Of this sum $3,500 was paid down; the three purchasers each contributing one-third of the payment. Afterwards several payments of interest were made, which were also contributed upon the basis of each paying the interest on the amount remaining unpaid as his own third of the purchase.

Matlock at different times paid his part of the interest, and also made payment on the principal, until he had finally paid his entire one-third of the purchase price. The defendants Gross and McCallum, however, never2 made any further payments after the first one upon the principal. They continued to pay the interest up to about March 29, 1915. Ever since they have been in default in the payment of the interest also.

After paying up his one-third in full, as hereinbefore stated Matlock transferred his interest in the contract to the plaintiff. He afterwards died, and his executrix is made one of the parties defendant herein.

The plaintiff, being unable to obtain title to her one-third interest in the land to be conveyed under the contract brings this suit against the defendants Gross and McCallum and makes the defendants Shelleys and Matlock, executrix nominal parties defendant. Plaintiff prays for alternative relief, and among other things for a decree of specific performance against the defendants Gross and McCallum, and that they be decreed to pay up the amount due from them under the contract, so that she can receive her one-third interest in the real property for which Matlock paid before transferring his interest to her.

The defendants Shelleys appear in the cause and file a cross-bill, in which they protest their willingness to convey the property to the purchasers and bring into court the deed therefor, and they also ask for a decree of specific performance against the defendants Gross and McCallum and the executrix of Matlock's estate.

The court below dismissed the bill of the plaintiff upon the ground that she had a complete and adequate remedy at law, but decreed specific performance in favor of the defendants Nancy J. Shelley and J. M. Shelley against Gross and McCallum upon the cross-bill of the former. The decree exonerates the defendant Nellie T. Matlock, executrix of the Matlock estate, and also provides for the foreclosure and sale of the property covered by the contract to satisfy the judgment against the defendants Gross and McCallum.

From this decree the plaintiff appeals. The defendants Gross and McCallum appeal from the portion of the decree providing for a specific performance in favor of the defendants Nancy J. Shelley and J. M. Shelley, and from that portion decreeing a foreclosure of the property and a deficiency judgment against them personally for any balance remaining unpaid.

There was no appeal by the defendants Nancy J. and J. M. Shelley, and no appeal in behalf of the Matlock estate.

H. E. Slattery, of Eugene, for appellant.

A. C. Shaw, of Portland, and E. R. Bryson and O. H. Foster, both of Eugene (Jesse G. Wells, Smith & Bryson, and L. Bilyeu, all of Eugene, on the briefs), for respondents.

BENNETT, J. (after stating the facts as above).

We think the court below erred in dismissing plaintiff's bill in equity upon the ground that she had adequate relief at law. The contract between Matlock and the defendants Gross and McCallum was for the purchase of a certain specific tract of real property. We think the fair presumption is, in the absence of evidence to the contrary, that, where three parties agree to purchase real property at a given price, each one is to take an undivided one-third in the real property and each is to pay one-third of the price. That natural inference is strengthened in this case by the conduct of the parties themselves, and by the fact that each one of them did pay one-third of the first payment, and that their numerous payments of interest were made upon the same basis.

Their agreement with the vendors was:

"That the parties of the second part hereby agree and bind themselves, and their legal representatives, to pay, or cause to be paid, to the said parties of the first part, their heirs or assigns, the sum of $10,750."

There is small room for doubt but what the arrangement among themselves was that each one should pay one-third of that sum. The plaintiff could not possibly obtain the title to the undivided one-third interest in the real property for which she had contracted, unless Gross and McCallum complied with their agreement to pay their part of the purchase price.

It is well settled that either party to a contract for the purchase of real property may maintain a suit for specific performance; the vendee to recover the land and the vendor to recover the purchase price. The reason why the vendee may maintain a suit in equity for specific performance against the vendor, as announced by all the courts, is that the damages which he could recover in an action at law are inadequate recompense for the loss of the real estate which he has contracted to purchase, and which may have, and is assumed to have, a peculiar value to the purchaser, which money damages will not replace.

In Pomeroy on Contracts, pp. 10, 11, and 12, it is said:

"One landed estate, though of precisely the same market value as another, may be entirely different in every other circumstance that makes it an object of desire. The vendee in a land contract may recover back the purchase money which he has paid, and with the damages which he thus receives he may purchase another estate of equal market value, but then there may be numerous features and incidents connected with the former tract which induced him to purchase, which made it to him peculiarly desirable, but which were not taken into account in the estimate of his damages, and which cannot be found in any other land which he may buy with the money. It is evident that in this and similar cases there would be a failure of justice

...