Van Hee v. Rickman

• Decision Date: 20 November 1923
• Parties: VAN HEE v. RICKMAN ET AL.
• Court: Oregon Supreme Court

220 P. 143

109 Or. 357

VAN HEE v. RICKMAN ET AL.

Supreme Court of Oregon

November 20, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by H. J. Van Hee against Daisy D. Rickman and husband. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Q. L. Matthews, of Portland (Paul M. Long and Christopherson, & Matthews, all of Portland, on the brief) for appellant.

L. E Crouch, of Portland, for respondent.

McCOURT J.

Plaintiff commenced this action against the defendant to recover damages for the breach of a contract for the sale of real property. The cause being at issue and the parties consenting, a trial was had to the court without a jury. The court made findings and gave judgment in favor of plaintiff. Defendant appeals.

Defendant owned lot 1 in block 80 in the town of Sellwood, now part of the city of Portland, Multnomah county, Or., and on November 3, 1920, contracted to sell and convey the same to plaintiff. The terms of the agreement between plaintiff and defendant were expressed in a written memorandum subscribed by defendant, a copy of which follows:

"Portland, Oregon, 11--3, 1920.

"Received of Henry J. Van Hee one hundred dollars, part payment on lot 1, block 80, Sellwood, Portland, Ore. Terms $1,000.00 cash and lot 3, block 4, Gilham's Add. to Portland. Said lot 1, Blk. 80, to be clear of all incumbrances except improvement of Sherrett Ave. Sidewalk curb and sewer to be paid in full.

"$100.00.

Daisy D. Rickman." On November 17, 1920, or the day following, defendant delivered to plaintiff a general warranty deed, executed by herself and her husband, Edward B. Rickman, conveying the above-described premises to plaintiff, and at the same time plaintiff paid to, and expended in behalf of, defendant the sum of $900 cash, and conveyed to her lot 3, block 4, Gilham's addition to Portland. The deed from defendant to plaintiff contained the covenant by the grantors--

"* * * that the above-granted premises are free from all incumbrances, except the bonded lien of Sherrett avenue, which grantee assumes and agrees to pay."

Defendant failed and neglected to pay $257.49, the cost of a cement sidewalk and curb that had been constructed by the city in front of the premises in November, 1919. While the city, under its charter, was entitled to assess the cost of the improvement against the property in suit and to impress a lien thereon for its payment, the proceedings necessary to perfect the lien had not been completed at the time of the delivery of the deed.

The records of liens of the city of Portland did not disclose that the city had any claim or lien upon the premises for the cost of constructing a sidewalk and curb in front of, or around, the same; plaintiff supposed that the cost of the improvement had been paid by defendant, and was so informed by the husband of defendant, and accordingly accepted the deed tendered by defendant, and paid to her the full amount of the consideration called for by the preliminary contract. After delivery of the deed, and on November 22, 1920, the amount assessed against defendant's property for the construction of the sidewalk and curb mentioned was entered in the city lien docket, and became a lien against the property.

About November 25, 1920, defendant received official notice, which she immediately communicated to plaintiff, that the charge for the sidewalk and curb had been docketed as a lien against the property. Plaintiff demanded that defendant pay the amount thereof, and she refused. Thereafter plaintiff paid and discharged the lien, and brought this action to recover the amount so paid.

At the trial in the circuit court, defendant contended that the preliminary contract between the parties upon which plaintiff's action is founded was satisfied and extinguished by the deed given and accepted in pursuance thereof, and that consequently plaintiff could not maintain his action.

Defendant's principal assignments of error are directed at the rejection of the above-stated contention by the circuit court.

It is a general rule that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie in execution of the contract, and satisfies and extinguishes all previous covenants which relate to, or are connected with, the title, possession, quantity, or emblements of the land which is the subject of the contract. Winn v. Taylor, 98 Or. 556, 576, 190 P. 342, 194 P. 857, and authorities cited therein.

The foregoing rule, however, does not apply to provisions in the antecedent contract which are not intended by the parties to be incorporated in the deed, or which are not necessarily performed or satisfied by execution and delivery of the stipulated conveyance. And unless the deed accepted in pursuance of...