Wood v. Rayburn

• Decision Date: 24 April 1889
• Parties: WOOD v. RAYBURN.
• Court: Oregon Supreme Court

22 P. 521

18 Or. 3

WOOD v. RAYBURN.

Supreme Court of Oregon

April 24, 1889^[1]

Appeal from circuit court, Benton county; R.S. BEAN, Judge.

(Syllabus by the Court.)

Where a party to a deed labors under the disability, and, by reason of some defect or technical informality, his deed fails to pass title according to the intent of the parties, in a proper case a court of equity will treat such defective or irregular deed as an agreement to convey and enforce it specifically on the same terms and conditions that other agreements in writing to convey real property are enforced. This is the general rule.

Where a complaint is framed with a view to alternative relief, and upon the trial in this court the plaintiff presents only one aspect of his case, the other will be treated as waived, and will not be passed upon or considered.

Where a party has notice of such facts as ought to put an ordinarily prudent man on inquiry, a failure to make inquiry is visited with all of the consequences of actual notice.

It is a general rule that notice to the agent is notice to the principal. The test is whether the information was a character which it was the duty of the agent to communicate. If so, it binds the principal.

To give the defendant the status of a bona fide purchaser of land for value and without notice, it must be alleged and proven, among other things, that the person who conveyed to the defendant was seised in fee, or pretended to be so seised, and was in possession, if the conveyance purported an immediate transfer of the possession, when he executed the deed to such purchaser.

To constitute one a bona fide purchaser he must actually have paid the purchase money before he received notice of the claim.

It must be proved, independently of the recital in the deed, that the consideration was paid before receiving notice, and it is not enough to show that it was secured, to be paid by mortgage or otherwise.

John Burnett, John Kelsay, and W.S. McFadden, for appellant.

J.W Rayburn, for respondent.

STRAHAN J.

This is a suit in equity. Its object is either to have a certain deed, dated in July, 1881, made by one Mary E. Huffman to the plaintiff, enforced as an agreement to convey certain real property situated in Benton county, or to charge the purchase price of said land, with interest upon it, and to have a decree for the sale of said real property to pay the amount. The purchase price is $592.50, with interest since July 1881. It appears that prior to the 9th day of July, 1881, Mary E. Huffman was the wife of one W.H. Huffman, and that she was the owner in fee of the real property in controversy; that on the 27th day of March, 1879, Huffman and his wife executed to the plaintiff, Wood, a mortgage on the property in controversy to secure the payment of $427, and interest; that said mortgage was duly recorded in Benton county; that on the 18th day of November, 1880, there was a decree foreclosing said mortgage entered in the circuit court of Benton county, Or., for the sum of $511, with costs and disbursements; that about the month of July, 1881, the plaintiff and W.H. and Mary E. Huffman entered into an agreement whereby it was agreed that, in consideration of the amount then due on said mortgage, and as payment and in satisfaction of said debt, they sold said premises to said Wood, and agreed to convey the same to him by deed; that on the 9th day of July, 1881, Mary E. Huffman, being still the wife of W.H., undertook to convey said premises to the plaintiff in pursuance of said agreement, and for that purpose signed and delivered to him the following writing: "Know all men by these presents, that I Mary E. Huffman, of Nez Perces county, Idaho territory, party of the first part, for and in consideration of $1,250.00 to me paid by Alexander Wood, of Benton county, and state of Oregon, do hereby grant, bargain, sell, and convey to said Alexander Wood, to his heirs and assigns, forever, the following described parcel of real estate, to-wit, [here follows the description of the lands as set out in the complaint:] together with the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, and also all her estate, right, title, and interest, at law and equity, therein or thereto, including dower and right of dower, to have and to hold the same to the said Alexander Wood, his heirs and assigns, forever. And I, Mary E. Huffman, do covenant with the said Alexander Wood and his legal representatives forever that the said real estate is free from all incumbrances, and that she will, and her heirs, executors, administrators shall, warrant and defend the same to the said Alexander Wood, and to his heirs and assigns forever, against the lawful claims and demands of all persons whatsoever. In witness whereof I have hereunto set my hand and seal this 9th day of July, A.D.1881. MARY E. HUFFMAN. [ [Seal.] Signed, sealed, and delivered in presence of R.H. BARTON. Territory of Idaho, county of Nez Perces--ss.: This certifies that on this 9th day of July, 1881, before me, the undersigned, a justice of the peace in and for the said county and said territory, appeared the within Mary E. Huffman, who is known to me to be the identical person described in, and who executed, the within instrument, and acknowledged to me that she executed the same freely and voluntarily, for the uses and purposes therein mentioned. In witness whereof I have hereunto set my hand and seal the day and year last above written. R.H. BARTON, Justice of the Peace. Territory of Idaho, county of Nez Perces--ss.: I, clerk of the court in and for said county and state, the same being a court of record, having a clerk and seal, do hereby certify that R.H. Barton, whose name is subscribed to the certificate of acknowledgment to this deed, was at the date thereof, to-wit, July 9, 1881, a duly commissioned, qualified, and acting justice of the peace in and for said county of Nez Perces; that he is authorized by the laws of Idaho territory to take the acknowledgment of deeds; that I believe his signature subscribed thereto to be his genuine signature; and that said deed is executed and acknowledged according to the laws of Idaho territory. In witness whereof I have hereunto set my hand and the seal of said court this 21st day of December, 1881. [ Seal.] JOHN H. EVANS, County Clerk. This deed was received for record and recorded December 24, 1881, and the certificate of the court was received and recorded December 24, 1881. B.W. WILSON, County Clerk."

The defendant's answer contains specific denials of each and every allegation of the complaint, and then follows with a separate defense, to-wit: "Defendant, for another and separate defense to the matters alleged in plaintiff's complaint, herein alleges the following facts, to-wit: That on the _____ day of October, 1886, one Mary E. Huffman was the owner in fee-simple of the real property mentioned in the complaint in this suit; that on said last mentioned day the said Mary E. Huffman, for a valuable consideration, sold, and by a good and sufficient deed, with the usual covenants of warranty, executed under her hand and seal, did convey to the said Ed. L. Rayburn every portion of said real property; that at the time of the execution of the deed by the said Mary E. Huffman to the said Ed. L. Rayburn as above stated, the said Ed. L. Rayburn had no notice of the matters alleged in plaintiff's complaint; that on or about the _____ day of November, 1886, the said Ed. L. Rayburn and the said S. Rayburn made and entered into an agreement wherein and whereby the said Ed. L. Rayburn, for the price and sum of $1,000, promised and agreed to sell and convey to the said S. Rayburn the real property mentioned and described in the complaint; that on said last-mentioned day the said S. Rayburn paid to the said Ed. L. Rayburn the sum of $1,000, and the said Ed. L. Rayburn, on the said day, under his hand and seal, made, executed, and delivered to the said S. Rayburn a good and sufficient deed, with the usual covenants of warranty, wherein and whereby he conveyed to the said S. Rayburn the whole of the real property mentioned and described in the complaint; that in said deed the said Ed. L. Rayburn covenanted to and with this defendant that he was the owner in fee-simple of said real property, and every part thereof, and that he would warrant and defend the same from the claims of all persons whatsoever; that at the time this defendant paid to said Ed. L. Rayburn the said $1,000, and took said deed, he did not have any notice whatever of any of the pretended rights or equities of the plaintiff, or of the matters and things alleged in plaintiff's complaint; that soon after paying the said sum of $1,000 to and receiving from the said Ed. L. Rayburn said deed or conveyance, this defendant went into, and ever since said time has been, and now is, in the actual, open, notorious, and adverse possession of said real property, and every part thereof, and has since said time made valuable and permanent improvements thereon of the value of $100; that at and during all the times stated in said complaint the said Mary E. Huffman was a married woman, she being at all of said times the wife of one W.H. Huffman, who was then and now is alive; that on the _____ day of July, 1881, and at the time of the making the pretended agreement mentioned in complaint, the said Mary E. Huffman resided at or near Moscow, in Idaho territory; that the law of Idaho territory relating to the execution of deeds by married women, in force at said time, was and is as follows, [here defendant sets out what he claims to be the laws of the said territory as relates to married women;] that this defendant is the owner in fee-simple of every part of...