Walker v. Mackey

• Decision Date: 04 February 1953
• Citation: 197 Or. 197,251 P.2d 118
• Parties: WALKER v. MACKEY et al.
• Court: Oregon Supreme Court

Page 118

251 P.2d 118

197 Or. 197

WALKER v. MACKEY et al.

Supreme Court of Oregon.

Argued and Submitted Nov. 20, 1952.

Decided Dec. 3, 1952.

Rehearing Denied Feb. 4, 1953.

See 253 P.2d 280.

George P. Winslow, of Tillamook, argued the cause and filed a brief for appellant.

H. T. Botts, of Tillamook, argued the cause and filed a brief for respondent.

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

TOOZE, Justice.

This is a suit for specific performance of an oral contract for the sale and purchase of land, brought by Robert Walker, as plaintiff, against Ena Fay Mackey and E. John Mackey, her husband, and Oregon State Highway Commission, as defendants. The suit was dismissed as to the Oregon State Highway Commission. A decree was entered in favor of plaintiff against defendant Ena Fay Mackey, and the court awarded plaintiff judgment against said defendant in the sum of $2,547, with costs. Defendant Ena Fay Mackey appeals.

At the time of the negotiations between plaintiff and defendant Ena Fay Mackey as hereafter mentioned, said defendant was the owner and in possession of the southeast quarter of the northeast quarter of section 20, township 2 south of range 9 west, of the Willamette meridian, in Tillamook county, Oregon, and also of a parcel of land in the southwest quarter of the northwest quarter of section 21, in said township and range.

During the spring of 1946, defendant Ena Fay Mackey and plaintiff entered into an oral agreement for the sale and purchase of two acres of land located in the southeast corner of the tract of land owned by defendant in section 20, township 2 south of range 9 west of the Willamette meridian. It was agreed between the parties that each of the two acres was to be square in shape, one acre lying west of and adjoining the other. The price agreed upon was $1,000.

The parties also agreed that the description of the land so sold was to commence at an established government survey corner, which is marked by a stone, at the southeast corner, this being the common one-quarter corner for sections 20 and 21, in said township and range. Defendant pointed out this corner to plaintiff and directed that he commence his measurements from there. By the use of a table of measurements, plaintiff and defendant roughly figured the dimensions of the land necessary to comprise the two acres.

Immediately thereafter, plaintiff procured Mr. Mackey's tapeline, and with the assistance of the small son of defendant proceeded to make the measurements. Starting at the corner stone, he measured 208.9 feet directly north, setting a stake at the end of each 50-foot measurement; then he measured west for a total distance of 400 'and some odd feet', also setting a stake at each 50-foot measurement; he then measured south and then east back to the place of beginning. He set a stake at each corner, except perhaps the starting point. Plaintiff does not claim that his measurements were exactly accurate, but states that defendant Ena Fay Mackey had agreed to have the tract surveyed.

In the summer of 1946, plaintiff took possession of the two-acre tract, built a barn thereon, and erected a fence for a corral in which to keep his horses. In 1947, at the request of defendant E. John Mackey, plaintiff permitted said defendant to cut some hay from the land. Also, in 1947, plaintiff constructed a fence around the greater portion of the two acres. Defendant Ena Fay Mackey purchased some of the posts used for this fence.

In 1948, plaintiff purchased materials, hired a carpenter, and commenced the construction of a dwelling house on the premises. About that time defendant Ena Fay Mackey was negotiating with a representative of the Oregon State Highway Commission for the sale of a part of the land for highway purposes. The land was necessary to the relocation of state highway No. 101. On August 14, 1948, defendants Ena Fay Mackey and E. John Mackey conveyed to the Highway Commission a tract of land for highway purposes. A portion of the land described and so conveyed included a part of the two-acre tract occupied by plaintiff.

It was about this time that defendant E. John Mackey told the carpenter employed by plaintiff, who was then working on the new house, that he 'didn't want Bob to go ahead and spend a lot of money, do a lot of work, you know, on that place and we didn't have it settled.' This was the first objection either defendant ever made to plaintiff's possession and use of the premises. It was not until November 22, 1948, and long after the sale to the Highway Commission, that the first formal objection was made. That was in a letter written to plaintiff by the attorney for defendant Ena Fay Mackey, which reads as follows:

'Robert Walker

Tillamook, Oregon

'Dear Sir:

'Mrs. Ena Macky [sic] has recently consulted me in reference to your building program upon her property.

'Mrs. Macky [sic] tells me that there was some oral talk about you buying two acres of land from her, but nothing has ever been put in writing.

She further tells me that the buildings which you have recently constructed are not upon the property that she understood you desired to purchase; that she told you at least twice not to go ahead with your building program until the property which you desired was agreed upon. I believe you have paid several payments to Mrs. Macky [sic], but according to her understanding your house recently constructed is not upon any property that Mrs. Macky [sic] had any intention of conveying to you.

'Under all the circumstances, there being no binding contract at all, Mrs. Macky [sic] is tendering to you all money which she has received and you are authorized to remove any and all buildings which you have placed upon her property within thirty (30) days from this date.

'After thirty days from this date you are notified not to trespass upon Mrs. Macky's [sic] property in any manner without you have her written consent.'

It was defendants' contention on the trial that the two acres plaintiff was to purchase consisted of one acre of upland and one acre of lowland or swamp, and they disputed plaintiff's contention that each acre was to be in the form of a square. However, the weight of the evidence supports plaintiff's contention with respect to that matter. The dwelling house was constructed upon the land plaintiff contracted to purchase.

It was conclusively established on the trial that the State Highway Commission was an innocent purchaser for value of all the land it purchased, including that part taken off the two-acre tract sold to plaintiff. For that reason, the suit was dismissed as to the Highway Commission.

The evidence discloses that in addition to making the improvements in question, plaintiff actually paid defendant Ena Fay Mackey a total sum of $425 on the purchase price. As typical of the receipts issued by said defendant when plaintiff made payments, we quote the following:

'Jan 20, 1947

'Money Receipt No. 1.

'Received from Robert E. Walker $275.00 and/100 Dollars for Payment on land.

'Amount Due

Paid $275.00

Balance $725.00

'Received by [Sgd.] Mrs. E. J. Mackey.'

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.

The trial court found that plaintiff was entitled to have the oral contract specifically performed, but because of the fact that a part of the land had been deeded to the State Highway Commission, complete performance could not be had.

Thereupon, the court indicated that it would retain jurisdiction in equity and award plaintiff judgment for the reasonable value of the improvements placed on the land upon the faith of the oral agreement and for a return of the $425 paid on the purchase price. Defendant Ena Fay Mackey filed written objections to the court proceeding further in equity as indicated and demanded that the cause be remanded to the law side of the court where jury trial might be had. The objections were overruled, and the court entered the following decree (omitting formal parts):

'This matter came on for hearing on August 1, 1951, plaintiff appearing in person and by H. T. Botts, his attorney, defendants Mackey appearing in person and by George P. Winslow, their attorney and, the Oregon State Highway Commission and the Commissioners thereof appearing by Fred A. Miller and John R. McColloch, Assistant Counsel for the State Highway Commission and the Commissioners, and the parties announcing themselves as ready for trial, opening statements were made by counsel and testimony was offered by plaintiff and defendants Mackey, and the hearing was continued until August 2, 1951, whereupon the parties rested, and arguments for counsel were heard and the matter was taken up under advisement by the Court.

'And the court now being advised in the premises finds that the plaintiff has clearly established by a preponderance of the evidence that the defendant, Ena Fay Mackey, orally contracted to sell to Robert Walker, in 1946 or 1947, two acres of land situated along the south boundary line of said defendant's property approximately bounded by the fence constructed by the plaintiff, Robert Walker, for the sum of $1,000.00 payable monthly at the rate of $50.00 per month; that the contract became enforceable by reason of the plaintiff making valuable improvements to the premises in constructing a house, barn and fencing, and paying $425.00 on the purchase price; that the defendant, E. John Mackey, husband of the defendant, Ena Fay Mackey, by his actions acquiesced and thereby became a party to the contract; that said contract cannot be specifically enforced by reason of the fact that the State Highway Commission, as a bona fide purchaser for value, acquired a right of way across a portion of the land covered by said contract and that plaintiff is therefore entitled to a decree compensating him to the extent of the improvements which he placed...