Smith v. Farmers' & Merchants' Nat. Bank

• Citation: 57 Or. 82,110 P. 410
• Parties: SMITH v. FARMERS' & MERCHANTS' NAT. BANK et al.
• Decision Date: 09 August 1910
• Court: Supreme Court of Oregon

110 P. 410

57 Or. 82

SMITH v. FARMERS' & MERCHANTS' NAT. BANK et al.

Supreme Court of Oregon

August 9, 1910

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Nancy L. Smith against the Farmers' & Merchants' National Bank and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This is a suit to enjoin the sale upon execution of lot 3, in block 27, Hanson's addition to East Portland, and the contention arises upon the following facts: On February 3 1886, C.J. Smith, the husband of plaintiff, and W.T. Jones became indebted to the defendant bank in the state of Nebraska upon a promissory note in the sum of $2,000. About the year 1890 plaintiff and her husband moved to Oregon, and on April 10, 1893, the defendant bank recovered judgment against C.J. Smith upon said note in the circuit court of the state of Oregon for Multnomah county, which judgment was entered upon the judgment docket of that court on June 24 1893. On June 15, 1902, plaintiff entered into a contract with J.C. Roberts for the purchase of said lot 3 for the price of $1,250, and at that time paid $100 in cash. The balance of the purchase price was to be paid in monthly installments of $15 each, the sale being evidenced by writing signed by plaintiff and C.J. Smith, and J.C. Roberts and wife, which recited that the sale was to plaintiff and C.J Smith, and that the property was to be conveyed to C.J. Smith upon full payment of the price. Plaintiff contends that it was without her knowledge or consent that the writing provided for conveyance to C.J. Smith; that the purchase was for herself and the deed was to be made to her. On April 1, 1907, a conveyance of the property was made to C.J. Smith which was recorded on April 7, 1907, and plaintiff alleges that it was without her knowledge or consent that the deed was to be made to C.J. Smith, and that she did not learn that it was so made until about April 17, 1907, when she secured a conveyance of the lot by C.J. Smith to herself, which was duly recorded in Multnomah county on that day. Thereafter, on February 25, 1908, defendant bank procured an execution to issue on said judgment and to be levied upon said lot 3, as the property of C.J. Smith, and thereafter this suit was commenced to enjoin the sale thereof. Decree was rendered by the trial court in favor of plaintiff, and defendants appeal.

S.H. Gruber, for appellants.

John Ditchburn, for respondent.

EAKIN J. (after stating the facts as above).

Plaintiff, to maintain her right to the property, contends that she purchased it for herself, and paid the $100 cash payment thereon. In the reply she alleges that the "said money was her own personal money; that thereafter the said property was bought and paid for on the installment plan, by this plaintiff, at the rate of $15 per month; that plaintiff had remaining $500 of the money received and inherited from her deceased father's estate and paid the same on said property; that each and every one of the installments paid upon said property was the savings and earnings of this plaintiff through her services and labor as housekeeper for her grown son, daughter and husband." Defendant contends that the written contract of sale is a sale to C.J. Smith and not to plaintiff, and cannot be disputed by oral proof. Section 704, B. & C. Comp., provides that "there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing." But in the case before us the controversy is not between the parties to the agreement, and therefore that section has no application. In Pacific Biscuit Co. v. Dugger, 42 Or. 513, 516, 70 P. 523, 525, Mr. Chief Justice Moore says: "The rule that an instrument in writing cannot be contradicted or varied by parol evidence applies only between the parties and their privies, and cannot be invoked in controversies between third parties and any of the parties to the contract." Carmack v. Drum, 32 Wash. 237, 73 P. 377, 785; Brown v. Wisner, 51 Wash. 509, 99 P. 581; Greve v. Echo Oil Co., 8 Cal.App. 275, 96 P. 904. And, although the writing may be admissible in evidence against plaintiff, it does not preclude oral evidence as to the real terms of the agreement. From the testimony of Mrs. Dunne, R.H. Dunne, J.C. Roberts, as well as plaintiff herself, it is clearly established that the contract of purchase was made by plaintiff for herself. It also appears from the evidence that the writing by inadvertence and mistake was made to recite that the conveyance was to be made to C.J. Smith, instead of to plaintiff, as intended by the parties thereto.

It is also urged by defendant that by reason of the allegation of the reply above quoted plaintiff admits that the $500 received by her from her father's estate in Ohio was applied in payment on the price of the lot, and that she is now bound thereby; and, there being no proof of the Ohio statute, it must be presumed that the common law, as to marital property rights, was in force in that state, and the said $500 thereby became the property of the husband, and therefore the lot was not paid for by the wife's money alone. As a general rule at common law the wife's choses in action, acquired by the wife during coverture, belong to the husband, but the title thereto only vests in him when he has reduced them to possession; and whether he has taken such possession as will operate to work a change of ownership is a question of intention as disclosed by the circumstances. The husband may waive his marital rights in the property of his...