Turnbow v. Keller

• Decision Date: 21 March 1933
• Parties: TURNBOW et ux. v. KELLER et ux.
• Court: Oregon Supreme Court

19 P.2d 1089

142 Or. 200

TURNBOW et ux. v. KELLER et ux.

Supreme Court of Oregon

March 21, 1933

Department 1.

Appeal from Circuit Court, Washington County; George R. Bagley Judge.

Suit by F. L. Turnbow and wife against R. A. Keller and wife. Decree for plaintiffs, and defendants appeal.

Affirmed.

See also (Or.) 12 P.2d 558.

This is a suit to foreclose the vendee's rights under a contract which the plaintiffs and the defendant R. A. Keller signed January 18, 1929, wherein Keller undertook to purchase from the plaintiffs a parcel of real property in Washington county, at the price of $700, payable $200 at the time of the execution of the contract, $150 July 1, 1929, and $350 January 18, 1930. It made time the essence of the contract. The complaint alleges that Keller paid on account of the purchase price $350; that the balance was due and unpaid that, simultaneous with the filing of the complaint, the plaintiffs deposited with the clerk of the court a deed for delivery to the defendants upon payment of the balance of the purchase price. The answer admits execution of the above-mentioned contract and alleges that the defendants had paid $397 on principal and $70.25 on interest; that the defendants had delivered to the plaintiffs merchandise of the value of $30.25, and "had made improvements in clearing the land at an actual cost of $120.00." It further alleges that the plaintiffs had removed from the land a small structure and materials forming a part of a barn and had thereby damaged the property to the extent of $200. It concludes with an averment that the unpaid balance of the purchase price was $303 and that it should be further reduced $200 by crediting upon the purchase price the value of the articles removed by the plaintiffs. The reply alleges that the defendants were indebted to the plaintiffs to the extent of $124.30 on account of services performed by the plaintiffs for the defendant, and that, by mutual agreement, the supplies of the value of $30.25, mentioned in the answer were applied by the plaintiffs on that indebtedness. All remaining allegations of the answer are denied. The findings of fact recite that at the time of the trial (July 30, 1931) the sum of $401.50 remained due and unpaid upon the purchase price of the property; that the allegations of the answer which aver that the defendants are entitled to the additional credits mentioned therein are untrue; "that there has been no destruction or waste committed upon said premises by the plaintiff, nor has there been any removal of physical property therefrom by the plaintiff subsequent to the execution and delivery of the contract *** nor has there been any conduct upon the part of the plaintiffs that in any way constitute a breach of the terms of said contract authorizing either a reduction of the purchase price or a decree of cancellation of the contract and reimbursement of the defendant for the amounts paid thereon." August 20 1931, an interlocutory decree was entered which granted the defendants ninety days to pay the balance of the purchase price, the interest, an allowance of $75 for an attorney's fee and the costs; and directed that thereupon a deed should be delivered to the defendants; that, in the event the defendants failed to pay the aforementioned sums, a final decree should be entered forever barring them of any interest in the property. January 23, 1932, the defendants having failed to pay the sums mentioned in the interlocutory decree, a final decree was entered barring them of any interest in the property. The record shows that objections to the above-mentioned findings of fact were presented by the defendants and argued; that after the entry of the interlocutory decree they filed and argued a "motion for a rehearing"; and that after the entry of the final decree they filed and argued a motion to set aside the decree. They have now appealed.

Lida M O'Bryon, of Portland (G. Evert Baker, of...