Strong v. Moore

• Decision Date: 20 April 1926
• Citation: Strong v. Moore, 118 Or. 649, 245 P. 505 (Or. 1926)
• Parties: STRONG ET AL. v. MOORE ET AL.
• Court: Oregon Supreme Court

245 P. 505

118 Or. 649

STRONG ET AL. v. MOORE ET AL.

Supreme Court of Oregon

April 20, 1926

Department 1.

Appeal from Circuit Court, Multnomah County; George F. Skipworth Judge.

Action by Margaret Strong and others against Ben H. Moore and others. Decree for defendants, and plaintiffs appeal. Affirmed.

Joseph Haney & Littlefield, R. E. Sewall, A. P. Dobson, and Guy C H. Corliss, all of Portland, for respondents.

BURNETT J.

There is involved herein a tract of realty in Portland, Or. On June 8, 1920, parties whom we will call the Browns were the owners of that property. The complaint says it was insured against loss by fire in the sum of $34,000, but in whose favor is not stated. Although the complaint, in the body thereof, says that the Browns sold the property to the plaintiffs herein, yet as confirmation thereof they refer to a copy of the contract of sale, so called, attached to the complaint, which they style Exhibit A. That document--

"Witnesseth: In consideration of the sum of one thousand dollars this day deposited with the owners by the purchaser, receipt whereof is hereby acknowledged, the owners hereby agree to sell and convey unto the purchaser by good and sufficient warranty deed the following described real property, to wit: The west 55 feet of lot 5 and the west 55 feet of the south 8 feet of lot 6, in block 251 in the city of Portland, Multnomah county, Oregon.

"The total purchase price to be paid for said property is $36,000.00 to be paid as follows: $1,000.00 cash this day paid as above set out, $10,000.00 cash on delivery of deed, $25,000.00 in the form of a promissory note, to be secured by first mortgage upon the above-described property, said note and mortgage to be executed and delivered at the time of delivery of deed, and to be dated at that time and to be payable on or before five years after date and to bear interest at the rate of 6% per annum, payable semiannually.

"The owners agree to forthwith furnish complete abstract of title to the above-described property, the same to show said property to be free and clear of all liens and incumbrances excepting the second one-half taxes for the year 1919, which are payable on or before October 5, 1920, and which the purchaser agrees to assume and pay in addition to the purchase price above mentioned.

"In the event that the title to said property proves valid and marketable, and the purchaser fails to consummate the purchase within thirty days from the date of the approval of title, the $1,000.00 deposit paid as above set out shall become forfeited and be retained by the said owners. In the event the purchaser so desires deed will be made to Margaret H. Strong and note and mortgage will, in that event, be signed by Margaret H. Strong and the mortgage will be signed by the husband of Margaret H. Strong."

Afterwards, according to another exhibit attached to the complaint and made a part thereof, the Browns conveyed the property to the Moores, all as appears by the complaint, with the consent of the plaintiff. As part of the same transaction the Moores executed the following document, attached to the complaint as a part thereof, called Exhibit C:

"Know all men by these presents, that we, B. H. Moore and Mable E. Moore, husband and wife, in consideration of the sum of one ($1.00) dollar and other good and valuable considerations paid by Margaret H. Strong and Kate R. Henderson, receipt of which is hereby acknowledged, we do hereby give and grant, and by these presents do give and grant unto the said Margaret H. Strong and Kate R. Henderson the exclusive right to purchase or sell the following described real property, to wit:

"The west fifty-five (55) feet of lot five (5) and the west fifty-five (55) feet of the south eight (8) feet of lot six (6), in block 251, of the city of Portland, Multnomah county, state of Oregon, for a period of six months from this date, and for the following amounts of money, to wit:

"Thirteen thousand five hundred ($13,500.00) dollars cash and assuming and agreeing to pay a note and mortgage this date executed for the sum of $25,000.00, bearing interest at the rate of six (6) per cent. per annum, payable semiannually, and in addition thereto any and all sums of money paid for repairs and improvements on said real property, but which said amounts of money for betterments and improvements shall not be due and payable until six months after the $13,500.00 has been paid, the amount of said betterments and improvements to be secured.

"We agree to furnish a complete abstract of title to the above-described property, the same to show said property to be free and clear of all liens and incumbrances, excepting the mortgage for the sum of $25,000.00 above mentioned. We agree, upon the payment of the sum of $13,500.00 as herein above provided, that we will execute a full warranty deed to the above-described real property in favor of Margaret H. Strong and Kate R. Henderson, or either of them, and deliver the same as herein above set forth, said deed to show said property free and clear of all incumbrances, excepting the mortgage above mentioned.

"Time is the essence of this contract, and in the event that the foregoing option is not exercised on or before January 15, 1921, then the said Margaret H. Strong and Kate R. Henderson shall have no further rights or interests under this agreement as to the real property above described."

On August 7, 1920, the building on the property was...