Walker v. Mackey

• Decision Date: 04 February 1953
• Citation: 197 Or. 197,253 P.2d 280
• Parties: WALKER v. MACKEY et al.
• Court: Oregon Supreme Court

Page 280

253 P.2d 280

197 Or. 197

WALKER v. MACKEY et al.

Supreme Court of Oregon.

Feb. 4, 1953.

George P. Winslow, of Tillamook, for the petition.

Before BRAND ^*, C. J., and ROSSMAN, LUSK, LATOURETTE ^**, WARNER and TOOZE, JJ.

TOOZE, Justice.

Defendant Ena Fay Mackey petitions for a rehearing.

Defendant in her petition alleges that this court erred in its statement of the facts of the case and in reaching certain legal conclusions. Our original opinion was handed down December 3, 1952: Walker v. Mackey, Or., 251 P.2d 118, 122.

It is frankly conceded that in our opinion we did inadvertently misstate some of the facts and, therefore, welcome this opportunity to correct such error. Among other things, we said:

'It did not appear until the trial of the case that the defendant State Highway Commission was in truth an innocent purchaser for value, and was, therefore, entitled to a dismissal of the suit as to it. Nor until the trial did plaintiff discover the interest of the Highway Commission in the land. This development rendered it impossible to decree specific performance of the entire contract, because defendants * * * had put it beyond their power to fully perform.' (Italics ours.)

Defendant maintains that we erred in stating that it did not appear until the trial that the defendant Highway Commission was in truth an innocent purchaser for value. As shall later appear, we did not err in making that assertion.

We did err in stating that it was not until the trial that plaintiff discovered the interest of the Highway Commission in the land. Correspondence between the parties in late 1948 shows that plaintiff then knew that defendants had conveyed a right of way to the Highway Commission, which included a part of his two-acre tract. This also appears by the allegations of plaintiff's complaint.

In our opinion we also said:

'The last payment in the sum of $50, evidenced by a similar receipt, was made August 21, 1947, or one week following the conveyance to the Highway Commission.' (Italics added.)

The deed to the State Highway Commission was executed on August 14, 1948, as shown by the pleadings and the evidence and as stated in our opinion. The receipt was issued August 21, 1947. Obviously the statement made by us is erroneous.

Defendant also asserts that we erred in stating that the conversation between E. John Mackey and plaintiff's carpenter in the fall of 1948 was 'the first objection either defendant ever made to plaintiff's possession and use of the premises.' (Italics added.) Considering the evidence as a whole, we did not err in that statement. In support of her claim, defendant invites attention to a more or less isolated portion of plaintiff's testimony on cross-examination. She overlooks other testimony of plaintiff, as well as some of her own testimony. Plaintiff testified positively that Mrs. Mackey had never notified him to quit building and to get off the premises, nor claimed that his dwelling was not being erected on the land he purchased, until she delivered to him the letter of her attorney, dated November 22, 1948, and quoted in our opinion.

It is true that before plaintiff commenced construction of his house in the late summer of 1948, there had been several discussions between the parties about the particular land that was being sold and purchased and about the inadvisability of building the house until the survey promised by defendant had been made. In none of these discussions was objection made by defendant to the possession and use of the premises by plaintiff. The conversations related entirely to the exact boundary lines of the two-acre tract, which could be determined only by a survey. But long before that, plaintiff had taken possession and, without any objection by defendants, had erected a barn, constructed a fence for a corral, and had fenced the greater portion of the two acres claimed by him. Instead of objecting, defendant had actually furnished some of the material used in the boundary fence construction. Furthermore, plaintiff had made substantial payments upon the agreed purchase price.

The acts of plaintiff last above mentioned were, in and of themselves, sufficient to entitle him to specific performance of the oral contract. The erection of the dwelling house was not necessary to perfect plaintiff's right to equitable relief. As we stated in our original opinion: 'His right to specific performance of the contract was fixed and complete long before defendants Mackey sold a part of the same land to the Oregon State Highway Commission.'

The exact boundary lines of the two-acre tract became a matter of dispute between the parties, as noted in our opinion, and this dispute was not finally settled until the court made its findings.

Defendant never attempted to repudiate the contract until November 22, 1948, though prior to that time she had offered to return to plaintiff the money he had paid on the purchase price, if he would quit the premises and remove his improvements therefrom, which offer he had refused.

Defendant's attempt to repudiate the contract, as evidenced by the letter of her attorney, dated November 22, 1948, led to a series of negotiations between the parties for an amicable adjustment of their differences. These negotiations extended over a long period of time, but finally proved fruitless. They consisted largely of correspondence. The last communication from plaintiff's attorney to defendant is dated November 2, 1950, and in which the following appears:

'Bob Walker has been in again about his land deal with you, and he tells me that you have never gotten together on any settlement, and he is insisting now that the matter be closed.

'As you know from former letters, he wants a deed from you for the property (the two acres) which you agreed to sell to him and which he took possession of and improved.

'He is ready at any time and offers to pay you the balance agreed between you; but, of course, he wants a deed to the property.

'There is one condition which has come about and that is you have given a deed to the state highway commission for a road which takes off, as I understand, about 50 feet of the frontage of the two acres he was buying; and also, under your deed to the highway commission, no access to the highway is permitted to or from this property; and he expects this to be taken care of in some satisfactory way.

'The part in the highway is of more value than the property at the west end which gets into lower ground. So he is entitled to reduction in the price on that account and also to have some arrangement by which he can reach the road from his property.

'All of these things are matters which require adjustment, but Bob is ready to go ahead and fulfill his part of the agreement and asks that you do the same on your part.

'I am writing to the state highway commission in reference to the matter as well and know we will have something from it unless you get the matter fixed up with Bob in the meantime.'

On November 24, 1950, defendant's attorney wrote to plaintiff, the first paragraph of that letter reading as follows:

'Ena Fay Mackey has instructed me to file a complaint in order to determine once and for all your arguments about purchasing from her a tract of land in the southeast quarter of the northeast quarter of Section 20, Township 2 South, Range 9 West, W. M., Tillamook County, Oregon.'

This suit was commenced by plaintiff on December 11, 1950.

In our original opinion we did not discuss the pleadings in the case. As a prelude to the discussion to follow, a brief review of those pleadings seems necessary.

Plaintiff in his complaint alleged the making of the oral contract, his acts of part performance thereunder, his ability and willingness to fully perform on his part, and defendants' refusal to perform. He also alleged the facts regarding defendants' conveyance of a part of his two-acre tract to the Highway Commission and the use thereof by the Commission in the construction of the nonaccess highway. He charged that the Highway Commission had purchased from the defendants Mackey with knowledge and notice of his rights in the land. He also alleged the necessity of an easement of way over defendants' remaining lands for ingress to and egress from his property. He asserted that if he was denied access to the throughway, his damages would be not less than $250, recoverable from the defendants Mackey. He prayed for specific relief and for general equitable relief.

The sole defense of the defendants Mackey was that no contract had been entered into for the sale to plaintiff of the two acres. They affirmatively alleged that there had been some negotiations relating to such a sale, but claimed that before the negotiations had ripened into a contract, they had rescinded the whole transaction and tendered back to plaintiff the money he had paid them.

The defendant Highway Commission made a general appearance by answer. In brief, it affirmatively pleaded that it was a bona fide purchaser for value of all the land conveyed to it by the defendants Mackey, including that portion claimed by plaintiff. It alleged specifically that a search of the records had been made, and that it had no notice or knowledge, actual or constructive, of plaintiff's interest in the land. It also asserted that the defendants Mackey had represented to it that they actually possessed said real property 'and that no other person or persons whosoever had or claimed to have any right to the possession thereof; and that no other person or persons whosoever had or claimed to have any right, title or interest in or to said lands.'

By his replies, plaintiff put in issue the affirmative allegations contained in the separate answers of the defendants.

Under the issues as formed by the pleadings the court was required to determine who owned the land in dispute, and in that connection the question whether the Highway Commission was an innocent purchaser for...