Thompson v. Hawley

• Decision Date: 29 November 1886
• Citation: 14 Or. 199,12 P. 276
• Parties: THOMPSON v. HAWLEY.
• Court: Oregon Supreme Court

12 P. 276

14 Or. 199

THOMPSON v. HAWLEY.

Supreme Court of Oregon

November 29, 1886

Appeal from circuit court, Lake county.

Suit in equity for specific performance of a contract to convey certain lands situate in Lake county, Oregon. Decree for the plaintiff. Defendant appealed. The facts are stated in the opinion.

Joshua J. Walton and John Kelsay, for appellant, Hawley.

Warren Truitt and Wm. H. Holmes, for respondent, Thompson.

STRAHAN J.

This is a suit in equity, brought to enforce the specific performance of a contract to convey certain lands situate in Lake county Oregon.

The complaint alleges, in substance, these facts: "That on June 25, 1880 at Silver Lake, Oregon, the defendant sold to the plaintiff the real property particularly described, and agreed to and with the plaintiff that, upon the payment to the defendant of $1,800, with interest thereon at 10 per cent. per annum from said June 25, 1880, the said sum being the purchase price of said land as agreed upon by said plaintiff and defendant, and that said defendant would execute and deliver to plaintiff a good and sufficient deed that would convey to the plaintiff the title in fee-simple to said lands; that on said twenty-fifth day of June, 1880, the plaintiff did, by virtue of and under the said sale, enter into the possession of all the above-described land, and ever since has been and now is in the actual and exclusive possession of said land, and has placed permanent improvements thereon of the value of $250 that on June 11, 1884, the plaintiff paid to the defendant the full sum of $1,800, together with interest thereon at the rate of 10 per cent. per annum from June 25, 1880, and that defendant received the same in full payment for said land and that said plaintiff has duly performed all the conditions of said contract on his part to be performed; that the defendant, though frequently requested, has failed, neglected, and refused, and still neglects and refuses, to make, execute, or deliver to the plaintiff any deed whatever to said premises, and has wholly failed and refused to convey to plaintiff any title whatever to said land."

The defendant's answer is as follows:

"The defendant herein, for answer to plaintiff's amended complaint, denies that the defendant sold the premises described in plaintiff's complaint, particularly described as the N.E. 1/4 of section 8, the N.W. 1/4 of N.W. 1/4 of section 9, T. 28 S., R. 14 E., Lake county, Oregon, except as hereinafter alleged in defendant's separate and further answer; denies that defendant promised or agreed, or in any manner undertook, to make the best title to plaintiff that the defendant could, as the heir of Lyman L. Hawley, and perfect the same; and denies that he (defendant) promised or agreed to make any title to said premises, except as hereinafter alleged; denies that defendant did on June 25, 1880, or at any other time, make or execute or deliver to plaintiff, or any other person, the instrument of writing set out in plaintiff's complaint; denies that said instrument of writing is correctly set out in plaintiff's complaint; denies that the instrument of writing signed by this defendant contained the words 'and perfect same,' or was intended to contain the same; denies that defendant promised or agreed to perfect the same, meaning the title to said premises; denies that said instrument in writing was so delivered to plaintiff as evidence of the sale of said property as aforesaid, or the land described therein as the hay ranch belonged to the estate of Lyman L. Hawley, except as hereinafter alleged; denies that on said twenty-fifth of June, 1880, the plaintiff, by virtue of the sale above set forth, entered into possession of said above-described premises, or ever since has been in actual or exclusive possession of said land, excepting as hereinafter alleged; denies that defendant has failed to perform the conditions of his contract in this, that he has failed, neglected, or refused, or still neglects or refuses, to make the proof of reclamation, or pay the balance of the purchase price for said land; denies that there was ever such a contract made or entered into between plaintiff and defendant; denies that defendant agreed or promised to make proof of reclamation, or pay the balance of the purchase price for said land;" denies that defendant has wholly failed or neglected or refused, or still neglects or refuses, to make any kind of conveyance to the plaintiff of any title whatever in or to said described lands.

"And for a further and separate answer and defense, the defendant alleges that on or about the twenty-fifth day of June, 1880, the defendant agreed to sell to the plaintiff a certain lot of sheep, being 1,505 head, at $1.50 per head, and all his right and title in and to the hay ranch of Lyman L. Hawley, son of defendant, together with certain personal property, as follows: The kitchen and household furniture, two head of cows, two calves, one horse, two wagons, set of harness, mowing-machine, hay-rake, forks, and other tools belonging to the ranch, and 2,500 poles.

"Defendant alleges it was agreed and understood by and between plaintiff and defendant, at the time mentioned, that the defendant would make, execute, and deliver to said plaintiff a quitclaim deed to said premises, and that plaintiff could make proof of reclamation, and pay the balance of the purchase price to the state of Oregon, if the state of Oregon held the said premises as swamp and overflowed land.

"Defendant alleges that the personal property, consisting of the kitchen and household furniture, two cows and calves, one horse, two wagons, one set of harness, mowing-machine, hay-rake, forks, tools, and 2,500 poles, which were turned in with the ranch, were intended to pay the said plaintiff for the balance due the state of Oregon on the purchase price of said land, and the said personal property last mentioned was turned over and delivered to said plaintiff in such consideration, and accepted by him; that said personal property, as delivered to said plaintiff, was of the reasonable value of $300; that at the time of making such sale of said premises the defendant was offered the sum of $2,000 for the same, if the defendant would make a warranty deed to the same.

"The defendant alleges that said plaintiff wrote the said bill of sale of the personal property, and memorandum of the sale of said hay ranch, set up in plaintiff's complaint, and read the same to this defendant in the presence of the said witnesses signed thereto, and that, if the said words 'and perfect the same' were written in said instrument, the said plaintiff failed and neglected to read the same to defendant, or that defendant did not understand the same, thereby intending to deceive and cheat this defendant; that defendant did not read said instrument of writing, but relied wholly upon the said plaintiff to write the same, and read the same to this defendant. Defendant alleges that he would not have signed the said instrument of writing if said words 'and perfect the same' had been read to him, or if he had known the said instrument of writing contained said words.

"And defendant further alleges that before the said contract was consummated, before the said property, or any part thereof was delivered to plaintiff, and before the said plaintiff would make any payment on said contract, the defendant, at the special instance and request of said plaintiff, made, executed, and delivered to plaintiff, on or about the third day of July, 1880, a bond for a deed of said premises; that the said defendant delivered said bond to the said plaintiff on or about the third day of July, 1880; and thereupon the said plaintiff made a...