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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (May 13, 1911)
DAILY CAPITAL JOCRKAIj. MUUt OREGON. SATURDAY. MAY 13. 1011. TAGE TWO. the capital journal E. HOFER, Editor and Proprietor. H. M. HOFER, Manager dependent Ntwipaper Devoted to American Principle and the Prorrra nd Development of All Oregon Published Every Evening Except Sunday. SfJem. Or. SUBSCRIPTION SATESl Onrariablv In Advance) fkfly, by Carrier, per year 16.00 Per month- Gaily, by Mall, per year 4.M Per month. Veekly, by MA per year LOO 8U nootha- . 60c - tec FULL LEASED WIRE TELEGRAPH REPORT If President Taft is not re-elected he will have no one to blame but Mr. Hitchcock, postmaster-general, who has made war on the newspaper and magazine postage rates. Following is part of an editorial from The International, published in New York. Canada, which is greater by several hundred thousand square miles than the United States, and which has only one-fifteenth of our population, charges only one-fourth a cent a pound for second-class mail matter. Its postoffice, nevertheless, made a profit last year of three-quarters of a million. Canada's second class rate applies not only to the Dominion itself but to Mexico and all British possessions. It does not, however, apply to the United States. In this respect there is no reciprocity. I have not had an opportunity to investigate the reasons for this extra ordinary difference between our nearest neighbors and our own country. It seems to be largely due to the iact that the United States postoffice employs some 50,000 horses and wagons, some 300,000 employes, and I don't know how many tens of thousands of buildings, which are sometimes used and sometimes not used. Along the country roads in a great many districts there daily passes a mail carrier with a handful of letters, driving a wagon capable of carrying a ton. It is this lack of business which, I presume, is responsible for our five' million annual postal deficit. Thi3 lack of business is, of course, due to lack of a parcels post. Our lack of a parcels post is due to the opposition of the express companies which are every one of them illegally competing with the postoffice; for there is a law which prohibits any private individual or corporation from so doing. And the reason that the express companies are able to defy the law is because they are backed by the railroads. The express companies by their. selves are of not the slightest importance. They cannot carry goods over long distances. They have no means of conveyance. They don't own a single car or a single foot of track. They don't employ a single engineer or fireman. They are absolutely de pendent upon the railroads, and they are nurtured and protect ed by the railroads. It is not the petty graft of the postoffice de partment which gives us a defi 'it of five millions, while England is making a profit of twenty-five millions. It is simply and sole ly because our postoffice does not do the necessary amount of business, and it cannot get the business to which it is entitled until the express companies are put out of the game. OREGON SUPREME COURT DECISIONS Foil Text Published by Courtery of F. A. Tomer, Reporter of tbe Supreme Court. Locktmrt t. Ferrey, et nl, Coos Ceunty. Herbert Lockhart, appellant, v. E. E. Ferrey, Ophelia Ferrey, H. C. Wright, Bessie Wright, Q. W. Ferrey, Bertha Ferrey, James Raines, Sarah Balnea, Charles Balnea, Mrs. Charles Haines, Thomas H. Balnes. Mrs. Thomas Balnes, Henry A. Balnes, George A. Balnes, Charlotte Helen Balnea Flanagan, Mrs. Rose Balnes La Torres, and Mrs. - James Balnes, respondents. Appeal from the cir cuit court for Coos county. Hon. J. W. Hamilton, Judge. Argued and submitted April 20, 1911. John K. Kaltock, for appellant T. S. MInot and W. U. Douglas, for respondents. Burnett, J. Reversed. This Is a suit for plaintiff, as ven dee, to enforce specific performance of a contract between Mm and Emer son E. Ferrey, George W. Ferrey and Hiram C. Wright, as vendors, pro viding for the sale to plaintiff of cer tain real property in Coos county. The contract was in writing, signed and Bealed by both parties, the ven dors being described as parties of the first part, and the vendee as par ty of the second part The contract stipulates "that the first parties, for the consideration of the sum of one dollar to there paid, do hereby agree to sell and convey to the second party and for value the second party agrees to purchase from the first par ties" the real property in question. , "The purchase price which the second party hereby cov enants and agrees to pay to the first parties for said real property is the sum of $4,200 In U. S. gold coin at Flanagan & Bennett Bank, Marsh field, Oregon. But the consideration in the deed may be any amount less than the real purchase price which the second party may request It la understood and agreed that the first parties have only a contract of sale for said premises at this time from W. E. Balnes, now deceased, who was the owner in fee of said promises at the time of his death, and the first parties have made all payments thereon, excepting one pay ment amounting to $585.00 payable on or before May 13, 1906; and that W. U. Douglas is now the duly appoint ed, qualified and acting administra " tor of said estate, it Is agreed that the first parties shall without un necessary delay make the last pay ment on said contract and procures deed under the provisions of said contract, and that they will within a reasonable time thereafter deposit in said Flanagan & Bennett Bank, Marshfleld, Oregon, a deed in which the wives of the married persons of the first parties shall join, conveying to the second party the hereinbefore described premises free of all Incum brances; and that there shall ac company such conveyance an ab stract showing a marketable title to be in the grantors at the time such conveyance Is made; and the second party agrees that upon this being done within a reasonable time from the time such deed is deposited he will pay to the Flanagan & Bennett Bank for the credit of the first par ties the sum of $4,200. It Is also agreed and provided that In case either party fails to comply with the provisions hereof and the terms and agreements on his or their part to be kept and performed respective ly. In case any action, suit or pro ceeding is commenced by either par ty hereto to enforce the provisions hereof, then in that case the prevail ing party shall be entitled to recover in addition to the Judgment' ren dered or relief granted such sum as the court hhall adjudge reasonable as attorneys' fees in such action, suit or proceeding in addition to the costs and disbursements provided by the statute." The parts omitted re late to the removal of some buildings and fencing on the property, not ma terial to be considered here. Prior to making the contract above referred to E. E. Ferrey exe cuted a deed and caused the same to be placed upon record In Coos county purporting to convey to his wife, Ophelia Ferrey, all his Interest in the land described. It appears from the pleadings and evidence that at the time the cotnract was made W. E. Balnea, from whom the parties of the first part had a contract for the sale of the land, had died unmarried and intestate, leaving as his heirs at law his brothers and slaters. After the execution of the contract between the plaintiff and the defendants Fer rey, Ferrey and Wright, the latter paid the amount remaining due on their contract to the administrator of the estate of W. E. Balnes, de ceased. As performance of their part of the contract with plaintiff the defendants Ferrey, Ferrey and Wright deposited In the Flanagan & Bennett Hank on July 9, 1906, a deed to the plaintiff for the premises in question signed by Emerson E. Fer rey, Ophelia Ferrey, his wife, George w. Ferrey, Bertha A. Ferrey, his wife, and Hiram C. Wright, who ap pears to have been unmarried at that time, together with a deed to Fer rey, Ferrey and Wright executed by the brothers and sisters of W. E. Balnea, deceased, without their hus bands and wives, also a deed from W. IT. Douglas, adminstrator of the estate of W. E. Balnes, deceased, to Ferrey, Ferrey and Wright and an abstract of title of the property in question showing that on April 28, 1906, the title to the property was in W. E. Balnes and that the taxes for the year 1905, amounting .to $30.96, bad not been paid. The plaintiff ob jected to the tender thus made, claiming the same was not .a per formance by the vendors of their written agreement The ground of his objection was that the abstract did not show a marketable title ex isting In the grantors at the time the offer was made; that the unpaid taxes constituted an incumbrance uon the property, and that for want of Joinder of the husbands and wives of the heirs of W. E. Balnes in the deed to the vendors the legal title remaining in W. E. Baines was not fully extinguished of record. Tire vendors stood upon this tender, de clining to make any additional ef forts In that direction, gave notice of rescission and withdrew the pa pers from the bank. The plaintiff tendered in writing payment of the purchase price which being refused he instituted this suit to enforce specific performance. The brothers and sisters of W. E. Balnes and their husbands and wives, except John La Torres, husband of Rose Balnes La Torres, were made parties defen dant to the suit and Joined in an an swer disclaiming all right title or Interest in the land in dispute, alleg ing that they had conveyed the same to the defendants, E. E. Ferrey, H. C, Wright and O. W. Ferrey In pur suance of "the "agreement of W. E. Baines, deceased. From a decree dismissing his Bult plaintiff appeals. Burnett, J.: It will be observed that while the covenant by the ven dors to convey and the covenant by the plaintiff to pay the purchase price are, as usual, dependent cove nants, they are not concurrent, for the contract provides that payment shall be made within a reasonable time after the deposit of the deed. The plaintiff was entitled not only to a conveyance from the vendors In which the wives of the married ven dors should Join, but he was also entitled to an abstract showing a marketable title to be in the vendors at the time the conveyance was made. A marketable title means one appearing to be such by the record of conveyances or other public mem orial. It means that the title must appear of record and not rest in parol. Knighton v. Smith, 1 Or. 276; Collins v. Delashmutt, 6 Or. 51; Cooper v. Cooper, 38 Atl. 198; Ruth erford L. & I. Co. v. Sanntrock, 44 Atl. 938. The abstract tendered was not sufficient for this purpose, for It traced the legal title only to W. E. Balnes and did not disclose anything divesting hire of that title. Under a contract between W. E.' Balnes and the vendors of the plalntilff for the sale of the property to them, the legal title remained in Baines until he or those representing him made a proper conveyance to the vendors of plaintiff, or until thej were other wise properly divested of the same by apt legal proceedings. The con tract between plaintiff and his ven dors recites that a payment of $535 was yet to be made on their contract with Baines. To this extent, at least, the legal title of Balnes descended to his heirs and for all that appears of record as disclosed by the abstract the successors In interest of W. E. Balnes might have foreclosed the equity of plaintiffs vendors and re tained the legal title. Hence in order to have complied with the provision of the contract in that respect plain tiff's vendors should have mad some showing in the abstract ten dered Indicating that the legal title of W. E. Balnes had passed from him or his successors in interest to them. It was' proper to make the heirs of W. E. Baines parties defendant In this suit for the specific performance of the agreement In question. The object of the suit Is to pass to the plaintiff the legal title to the land in question. The court of equity as sumes Jurisdiction of the rem and, the legal title having descended to the heirs of W. E. Baines, they, ap parently having an interest of record In the subject of the suit, were prop erly Joined as defendants. L. O. L. Sec. 393; Arkadelphla L. Co. v. Mann. 78 Ark. 414; Muldon v. Brawner, 57 Fla. 496; Rochester v. Anderson. 5 Lit. Sel. Ca. 143; Hnn kins v. Barremore, 99 Minn. 413; Mowbray v. Dleckman, 9 N. Y. App. Div. 120: Morrow v. Lawrence Univ., 7 Wis. 574; Eas Rivert Land Co. v. Kindred, 112 N. Y. Supp. 540; Slaughter v. Nash. 1 Lltt 322. It appears in the testimony also that the heirs of W. E. Baines Joined In a deed without their husbands and wives which has already been men tioned as having been included in the tender of the vendors and be sides this they, together with their husbands and wives, except the hus band of Rose Baines La Torres, made another deed conveying the I premises In performance of the con tract of their intestate conveying the land to the plaintiff's vendors but this deed was not included in the tender to the plaintiff above men tioned. This, together with their disclaimer, would effectually dis pose of any claim of title on the part of the heirs of W. E. Balnes. It Is contended on behalf of the defendant, ' Ophelia Ferrey, that she was the owner of her husband's for mer interest in the land and not be ing a party to the contract with plaintiff she cannot be made to per- Blood Humors Commonly cause pimples, bolls, hives, eczema or salt rheum, or some other form of eruption; bul sometimes they exist in the system. Indicated by feel ings of weakness, languor, loss of ap petite, or gent-ml debility, without causing any breaking out They are expelled and the whole sys tem Is renovated, strengthened and toned by Hood's Sarsaparilla Get It today In usual liquid form or chocolated tablets called Sarsatabs. form that agreement The plaintiff maintains that although ber hus- hnnri maita a riaoil mimortlnor tn convey his interest in the property io ner ana piacea u upon recoru, still thA HanH riM nnt nnernttt n convey any Interest in the land to her because It was not delivered. It is not necessary, however, to consid er this question. Opholia Ferrey did Join in a deed with her husband conveying the property in question tn thA rtlAtfltiff nnH this AaeA was tendered in performance of the con tract in question, rurtnermore, it appears In the record as part of the evidence in support of defendants' case, sne tnus equipped her hus band with 'nil thA mpanfi ef nur. forming his contract with plaintiff so far as she was concerned. The plaintiff's vendors, hv thin opt nf Ophelia Ferrey and the conveyances rum me neirs or w. e. aaines with their wives and husbands, were thus in a situation specifically to perform the contract for the sale of this property. So far as the abstract was concerned, they could have, placed these deeds upon record and had me aDsiract brought down to the date of the tender, after nnvlnc tho taxes mentioned. Dnrlnir thn nocrn- tlationa aobut the matter it was agreed that the plaintiff should pro cure a quit claim deed from John La Torres, the hiiRhnnri nt p.. Balnes La Torres, at an expense not exceeaing iuu and that the plaintiff's vendors would assume one-half the expense. The plaintiff aa that quit claim deed from La Torres at an expense of $100. We are of me opinion that the plaintiff's ven dors, not having offered full per formance of their contract, could not rescind and that plaintiff is en titled to a decree for specific per formance, so far as his vendors can perform, although they might not be able to perform in full. Thompson v. Hawley, 16 Or. 251; Eppstein t. Kuhn, 10 L. R. A. (N. S.) 117; Melln v. Woolley, 22 L. R. A. (N. S.) 595. It remains to consider the ques tion of attorney fees provided for in the contract. There Is testimony on the part of the plaintiff in the form of opinion evidence to the effect that as much as a thousand dollars would be a reasonable fee for con ducting the suit, but it is still for the court to Judge what Is reasona ble, for expert testimony is only illustrative. Consequently, in this, as in all other equitable proceed ings, the Court Will nnnalHor IU whole situation in determining such a qucsuuu. unaer ail the circum stances of the case, without further discussion of this feature, the court will fix as a reasonable attorney fee the sum of $420, that being 10 per cent on the purchase price. The plaintiff ia entitled to an abatement of the purchase price in the sum of $50 for the acquisition of the deed from John La Torres; for the further sum of $30.96 taxes for the year 1905; and for the further sum of $420, as attorney fees. The decree of the court below will be reversed and one entered provid ing that the deed from E, E. Ferrey, Ophelia Ferrey, his wife, George W. Ferrey, Bertha A. Ferrey, his wife, and H. C. Wright, heretofore ten dered by plaintiff and now in evi dence in this case, be taken from the flies and delivered to the clerk of the circuit court for the plaintiff, leav ing here in its place a certified copy thereof; that the defendants, the vendors of plaintiff, with 10 days af ter the filing of the mandate of this rnnrt In the nlrrnlf nnurt ho re quired to deposit with the clerk of that court for the plaintiff a deed from the administrator of the estate a p Afraid to use hair preparations? uX. frCtlCl Certainly not, if your doctor approves. Let him decide about your using Ayer's Hair Victor for falling hair or dandruff. It will not color the hair, neither will it harm or iniure. J. O. A-trOv Strength Counts in all life's affairs. Strength comes of pure blood ; good blood comes when stomach, liver, kidneys and bowels are kept in proper condition by a little care and of W. E. Balnes, deceased, to them selves for the premises in question and a deed of conveyance of the real property in dispute to themselves from the heirs of W. E. Baines and their husbands and wives, and that In default of the deposit of this deed this decree shall stand and operate as conveyance of the real property In question from the heirs, of W. E. Baines and their husbands and wives to plaintiff's vendors for the use and benefit of. plaintiff; and that within 20 days after the mandate of this court is filed in the circuit court tbe plaintiff shall pay into the circuit court for the defendants, Emerson E. Ferrey, George W. Ferrey and Hiram C. Wright, the sum of $3699.04, and shall then receive from the clerk the deeds so deposited and that in de fault of such payment at the time so specified the plaintiff's suit be dismissed. Neither party shall re cover costs or disbursements from the other in either court and the cause is remanded to the circuit court for further proceedings in accord ance with this opinion. CHEAP PAVEMENTS DO NOT PAY Concrete Pavements Have Failed Completely Says the Mayor of Denver, Colo. ABSOLUTELY ALONE AT THE TOP "The concrete highway laid by the city from Overland Park southward to the city limits, near Petersburg, is not proving satisfactory,' says the Denver, QoJo., T'mes of February 20th. Mayor Speer today said that the concrete probably will be cov ered with tar and sand, or with some other mixture, In an effort to save it. "Residents of the Highlands have requested the city to build a con crete highway In parts iOf West Twenty-third avenue. An ordinance pro viding for the work has been passed and submitted to Mayor Speer for his approval. Because of the unsatisfac tory results with the concrete road near Overland Park, Mayor Speer is giving special cnslderation to the request for a similar road In the Highlands. " 'The concrete highway near Over land park,' said the mayor today, 'was laid as an experiment. Concrete is cheaper than asphalt or other paving material, and we were anxious to use concrete if it were found practicable. It is breaking off where heavy wagons have to run. This kind of highway has no resilence, is solid and brittle. We probably will cover It over with a coating of tar and spread some gravel on it. This will make it waterproof. We do not knpw that the coating will not wear off In a short time.' " of the world's bottled beers is the supreme position occupied by Old Reliable Its high reputation is due to its exclusive SaazerHop flavor, its low percentage of alcohol and thorough ageinj in the largest storage cellars in the world. Only the verj best materials find their way into our plant Bottled only at the Anheuser-Busch Brewery St. Louis, Mo. The Beer for the Home, Hotel, Club and Cafe Warning to Rnllrond Men, E. S. Bacon, 11 Bast St., Bath. Me.. sends out this warning to railroad ers: "A conductor on the railroad. my work caused a chronic inflamma tion of the kidneys and I was miser able and all played out. A fritnd advised Foley Kidney Pills and from th day I commenced taking them, I began to regain my strength. The inflammation cleared and I am far better than I have been for 20 years. The weakness and dizzy spells are a thing of the past and I highly recom mend Foley Kidney Pills." Red Cross Pharmacy. AN EASY AND HARMLESS WA T0 DARKEN THE HAIR. Who does not know of the value ot snge and sulphur for keeping the hair dark, soft, glossy and In good condition? As a' matter of fact, sulphur Is a natural element of hair, and a deficiency of it in the hair is held by many scalp spe cialists to be connected with loss of color and vitnlity of the hair. TJnquec tionably, there is no better remedy for hnir and scalp troubles, especially prema ture grayness. than ngc and sulphur, if properly prepared. The Weth Chemical Company, 71 Cortlandt St., New York City, put up an 'ideal preparation of this kind, called Wyeth's Sage and Sulphur. It Is sold by all leading druggists for 50c. and $1.00 a bottle, or is sent direct by the manufacturers upon receipt of orice. J. C. PERRY. Salem pregon. Children Cry FOR FLETCHER'S CASTORI A Starts 31 neb. Trouble. If all people knew that neglect of constipation would result in severe Indigestion, yellow Jaundice or viru lent liver trouble they would soon take Dr. King's New Life Pills, and end it. It's the only safe way. . Best for biliousness, headache, dypepsla, chills and debility. 25 cents at J. C. Perry's. Keep the Balance Tp. It has been truthfully said that any disturbance of the even bate of health, causes serious trouble. No body can be too careful to keep this balance up. When people begin to lose appetite or get tired eastly, the least Imprudence brings on sfeksest, weakness or debility. The systea needs a tonic, craves It, and should not be denied it, and the beet tonic of which we have any knowledge Is Hood's Sarsaparilla. What thli med icine has done in keeping healthy people healthy, in keeping up tie even balance of health, gives it tie same distinction as a preventive that it enjoys as a cure. Its early usehu Illustrated the wisdom of the M saying that a stitch In time san nine. Take Hood's for appetite, strength and endurance. Mrs. J. S. Starnes, HIekorj, N. C, seaks to those who have t similar trouble. "I have been bothered i great deal with throat and lutt trouble, and find Foley's Honey and Tar Compound gives me ImmedliB satisfaction and relief." Take Foley' Honey and Tar Compound for cough colds and hoarseness, for cbUdm and grown people. Accept no stitutes. Red Cross Pharmacy. BEE 5 MI'S PILLS Sold Everywhere. In boxei 10c. and 25c Salem Bank & Trust Co. General Bnnklnit and Trust Business With our assurance that we are able and willing to take care of It, we solicit your Banking Business. Open an account with 'us and we will extend you every favor consistent with good banking principles. Ve Pay Four Per Cent on Savings Liberty Street, Just Off State l Salem Fence Works ! Headquarters for Woven Wlr Fencing, Hop Wire, Barb Wire. Poultry Netting, Shiu g'es. Malthold Roofing, P. . B. and Ready Roofing. Screen Doors and Adjustable Window Screens. All at the lowest prices. CHAS. D. MULLIGAN 260 Court street Phone 114 4 $1 v MI ' " ' III! II II Celebrated VcnT Panro. The Best Heater it will savfl you w-'ey every day yoi own tt. I ell ni & natal the beet Let me glve'you figures. See Me About an Individual lighting plant for your home. Tbe best thing ' li the market for ooking and Ilghtlnr A. L. Frasier Photie 135. 25S State Street HLwr or j I Ctart the Jmm w FoundationBp for- Your m imff '-PlliplH g toil The requirements of the National Bank laws guarantee safety to the depositors of this bank. We invite your checking ac count and extend to you the facil ities of an up-to-date bank. United States National Bank SALEM, OREGON ttTt tt 5S$