Weiser Land Co. v. Bohrer

• Decision Date: 16 November 1915
• Citation: 78 Or. 202,152 P. 869
• Parties: WEISER LAND CO. v. BOHRER ET AL.
• Court: Oregon Supreme Court

152 P. 869

78 Or. 202

WEISER LAND CO. v. BOHRER ET AL.

Supreme Court of Oregon

November 16, 1915

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by the Weiser Land Company against Josephine Bohrer and another. Defendants' plea in abatement was overruled there was a decree for plaintiff, and defendants appeal. Plea in abatement sustained, and suit dismissed.

This was a suit to compel specific performance by defendants of a covenant to release certain land from the operation of a mortgage given by plaintiff to defendants. In August, 1912 plaintiff's grantors, who resided in Weiser, Idaho entered into a contract to purchase certain lands of the defendants situated in Malheur county. Thereafter the plaintiff corporation was organized in Idaho and took over the contract, and having made a preliminary payment received a deed for the property, giving certain notes and a mortgage to secure the payment of the purchase price. The mortgage contained the following covenant:

"It is agreed that parties of the second part, or their executors, administrators, and assigns, are to execute and deliver to first party, its successors or assigns, partial releases of said lands from said mortgage lien as demand may be made on them, provided that party of the first part its successors or assigns, shall pay to parties of the second part, their executors, administrators, or assigns to be applied on said notes herein, an amount which, added to what has heretofore been paid, will amount to $75 per acre for each acre of lands so released from said mortgage lien aforesaid."

The plaintiff brings this suit claiming that sufficient payments have been made to equal in amount the sum of $75 per acre for 225 acres of the land conveyed, setting up a demand by plaintiff for a release of said 225 acres and a refusal by defendants to make such release, and asking that they be required to specifically perform such covenant. The defendants filed a plea in abatement, the material parts of which are as follows:

"I. That at all the times mentioned in the said complaint the defendants were, and still are, residents of the county of Washington, in the state of Idaho. II. Further answering said complaint, the defendants allege: That the said plaintiff has not at any time filed with the Secretary of State or Corporation Commissioner of the State of Oregon, a written or any declaration of its desire and intention or purpose to engage in business within the state of Oregon as required by section 6727 of Lord's Compiled and Annotated Codes of said state, neither has it paid to the state of Oregon its last or any annual license or any other tax or fee that has become due and payable against it, neither has it at any time before or at the time of the commencement of this action, either by power of attorney or otherwise, appointed any attorney in fact within the state of Oregon, on whom process may be served, as required by section 6726 of said Codes, and it had not at the time of the commencement of this action, or at any other time, any such attorney in fact within the state of Oregon, notwithstanding that at all the times mentioned in the said complaint, and at the time of the commencement of this action, the plaintiff was transacting business within the state of Oregon, by buying and selling lands therein, and cultivating, improving and irrigating lands for profit. III. That by reason of the fact that the plaintiff has not complied with the laws of the state of Oregon relating to foreign corporations, it has not legal capacity to sue, or prosecute its said action within the state."

Plaintiff replied to the plea admitting that it was a foreign corporation and that it had not filed any written declaration of its intention to do business in the state of Oregon,...