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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (May 27, 1911)
OREGON SUPREME COURT DICiSIOIIS (Continued from Page 6.) volved a mortaBge upon a tract af ind to socure the payment of a sura S money at certain dates, In which nnrtease there was the following .TovWon: 'It Is understood and lereed bv and between the parties to this Istrument that the above des cribed land shall be platted into not less than 100 lots, of uniform size, Ind that the party of the second part shall release any of thelots In the north half of 8ald land upon tne P?" ment of $10 each, and any of the lots when platted as aforesaid, In the south half of said land upon payment of ts'i for pa'h lot" In tnls case 11 was determined that the covenant, as to a partial release, ran with the land and inured to the benefit of the erantee of the mortgagor purchasing one of the lots so platted; that the right to a release was not terminated by default in payment of the sum se cuied by the mortgage, but continued In force until the mortgagee had fully executed the power by sale of the mortgaged premises. In discussing this ease, Mr. Justice Mitchell, speak ing for the court, declared: "The rule, we think, Is universal that the bene.it passes with the land to which jt Is incident. The agree ment or covenant Is one relating to the rights of the parties In the land. It affects the title, and hence affects the value of the estate of the holder. The release is for the benefit of tho owner; iu fact no one but the owner could be benefited by It. It would be against reason If It did not Inure to the erantee of the covenantee." In considering this question It should be noted that the amount mentioned in the stipulation, to be paid per acre, Is so fixed as to equal in the aggre gate the principal of the note secured by the mortgage. Under a similar stipulation in Clark v. Fontain, 144 Mass., 287, it was held that the pur chaser from a mortgagor, on paying the price mentioned in the mortgage was entitled to a release of his lot and that in a suit in equity such" a 'stipulation should be enforced in t& vor of one holding under a mortga gor. Defendant Raldabaugh having purchased the lots from The Oregon Land Company, obtained a contract therefor and taken possession there of, a court of equity will decree him a deed from one holding from the vendor, with notice of his equities in the premises, upon payment of the amount stipulated In the mortgage. Cowen v. Loomis, 91 111., 132. On behalf of the defendant, Ralda baugh, It Is claimed that upon his payment without interest of the amount of $23.75 per acre, or $475, he is entitled to a release from defen dant Virginia Watson's mortgage. The stipulation is not perfectly clear in Its terms in regard to the payment of Interest. There is, however, a pro vision that notes and mortgages re ceived from purchasers, to be trans ferred to Mrs. Watson, should draw Interest at eight per cent per annum, and be payable on or before February 1, 1900, but the time from which in terest accrues is not stated In the stipulation and this appears to be IMOST $30,000 Has Been Invested for B oxes Doors i The factory is in full swing. We can supply your needs at a mini 1 mum cost, because our plant can produce an enormous output COMBINATION 1 OPP1CES: unnecessary for the reason that the note, set forth in the mortgage, pro vides the date from which such com putation Bhould be made. Vawter v Craft, 41 Minn.. 14, 17. Should a per son purchasing one of these lots Im mediately after the execution of the mortgage, and paying or offering to pay the amount required for a re lease from the morteaee ho In tho same position, and required to pay me same amount as one attempting to obtain such a release 10 years af terwards? That such a construction should be given to the mortgage Is not consonant with reason. In con struing the stinulation nil the tents of the mortagge must be taken iiuo consideration, lr upon the pay ment of the principal amount stipu lated the mortgages were compelled to release to a purchaser, then at any time when tendered the amount she might be comnelled to release all nf the security given for the note, wlth- uul mo payment or any interest. In the absence from the stipulation of any specification reeardln interior It would be implied that in each In stance eacn and every lot should pay accrued Interest on Its nronnrtlonnto share, of trie debt. The stipulation Is io ue consintfu in connection with the eovenaifjln the mortgage as to foreclosure ifnd sale in case of de fault. Vawter v. Craft, supra. To re quire the mortgagee to release the several lots from her mortgage, and so lose the Interest on any one lot would be an Injustice, and we think it was not the intention that such should be the case. It intended that no Interest was to be paid on the amount required for the release, the stipulation would, in effect, indeed be vicious as there would then be no inducement for the purchaser to make payment and obtain a release until the mortgage should be fore closed, and one purchasing subject to the mortgage in 1892 could allow the matter to remain limmirl until i..t before the time of the commencement of this suit, more than 10 years after ward. The testimony on the part of de fendant Raldabaugh was taken by de position, which deposition appears to have been lost since the trial at the cause. From a reference to the testi mony, found in the transcript, it seems that Raldabaugh's contract for the purchase of these lots was at tached to his deposition, and we are informed by counsel that his receipts for payment, and written evidence of his transactions with The Oregon Land Conmnnv, were lna tharauHtH The circuit court found in substance that D. M. Smith and snhsem ipnt nitr- chasers of the lots in question, knew or Kaiaabauerh s rnntrnci nf hla ennl- ttes In the premises, that the allega-' lions OI nis answer wpr Imp anil that they, therefore, were not Inno cent purchasers. As the evidence con cerning Raldabaugh's rights in the premises is not all before us, we are not In a position to review these findings of fact, and they will not be disturbed. Wyatt v. Wvatt 31 Or.. 531. 535; Morrison's Estate. 48 Or.. 612, 614; Neal v. Roach, (Or.) 107 Pac.. 475. It is claimed In hehnlf nf defendant Raldabaugh that his re ceipts and the contract attached to his HpnnKltlnn hnvlrtp- hpon lnar nr mislaid, to have the cause remanded, would work an injustice upon him, while counsel for the-other -defendants suggests that the cause should be remanded for the purpose of tak- PROGRESSIVE WEST SALEM Mouldings Stair Work Get our figures before placing your contracts. "PROMPT DELIVERY" is Our Slogan. Room 204, United States National Bank Building DAILY CAPITAI lng the deposition of witnesses In substitution of those lost. It does not appear, however, either from the record or from the briefs or argu ments of counsel, that, if such a re mand should be made, any different state of facts from those found by the trial court would be disclosed. Contention is made by counsel for defendant D. M. Smith, and those ob taining title to the lots through him, upon the facts shown by the record and found by the court thai on ac count of the failure of defendant Raldabaugh to pay the amount due on his contract, his rights In the premises were forfeited, and that de fendant Smith elected to, and did, re scind the contract for the conveyance of the lots and take possession there of. None of the defendants claim to have tendered to defendant Ralda baugh a deed of conveyance to the lots in question. Neglect to pay on a stipulated payday will not of itself produce a forfeiture, if the creditor has not considered time as of the es sence of the contract. Davia v. Wil son, 106 Vac. - (Or),- 793; Graham V7 Merchant, 43 Cr., 294, 305; Shafer v, Niver. 9 Mich., 253; Linscntt v. Buck, IS NOW INTALLED IN MANUFACTURING WEST SALEM JOCRXAL, SALEM. OREGON. SATURDAY, M r 1 Ely Landing on Deck of Battleship 33 Me., 530; Clark v. Lyons, 25 111., 105. Regarding this point Mr. Jus tice Bean, in Frink v. Thomas, 20 Or., 265, says: "When the vendor by his contract to convey .has not affirma tively provided that time shall be of the essence of the contract, a court of equity will ordinarily infer that Interest on the deferred payments would be a sufficient compensation for the delay. Compensation, and not forfeiture, , is a favorite maxim with a court of equity. (Citing Knott v. Stephens, 5 Or., 235; Brock v. Ridy, 13 Oh. St., 306; King v. Buckman, 20 N. J. Eq., 316) . Although there is no stipulation In the contract that time shall be essential nor any thing in the nature or circumstances of the agreement to make It so, It could nevertheless have been so made by a tender of performance on the part of the plaintiff and demand of payment. As a general rule, the party who asks for the re scission of a contract for the sale of real estate must be himself without fault, and when as In thin raaa tho Tiaymehl "6f ftie' purchase money anfl tne maKing or tender or the deed are to occur simultaneously, they are re INSDUTRY TODAY the Manufacture of All Kinds of Sash Cupboa AY 27. 10H. .,.- "-"V-T" N7 s-w';-Lj Pennsylvania. garded as mutual and concurrent acts, which disable either party from putting an end to the contract with out performance or a valid offer to perform on his part; and so far as the question of time is concerned, both parties, after the day provided for the consummation, may be considered equally In default and neither can hold himself discharged from the obligation of complete performance until he has tendered performance on his own side and demanded it on the other." In so far as shown by the findings of the court and, the record, this lan guage is peculiarly applicable to the case now under consideration. It was incumbent upon defendant Smith, when he insisted that Raldabaugh was In default to such an extent as to entitle him to have the contract re scinded, to allege and prove that he had tendered Raldabaugh a deed of conveyance of the land, according to the terms of the agreement, and de manded performance on the part of the latter. Frink v. Thomas, supra. Smith should also have notified Rald abough that unless the money was paid within a reasonable time the - f : hi Brackets Buffets SALEM, '".'," contract would be rescinded, and de fendant Raldabaugh was entitled to reasonable time after notice In which make the required payments. Gra ham v. Merchant, 43 Or., 305. To de scribe tho- matter briefly, the affairs of The Oregon Land Company wero In a chaotic Btate, and the real trou ble Is that Raldabaugh paid the com pany too much. It was hlB right and duty to protect himself by withhold ing from the contract price a suffi cient amount to pay Mrs. Watson for the release of her mortgage upon the lots according to the terms thereof, and his failure to do this was un doubtedly on account of relying upon the Land Company to convey title to him, according to its agreement ex pressed In the contract of sale. Hav ing knowledge of the mortgage, this he did at his peril. Jackson v. Con dict, 57 N. J. Eq., 522. The mortgage from defendant D. M. Smith to The Oregon Land Com pany was given, it Is shown for the purpose of being transferred to Mrs. Watson, and as the amount thereof Is less than that due upon Raldabaugh's contract, it should be cancelled. The total amount due uuon the land COMPANY 1 1 OREGON PAGE If DTK 1 . : : Vtctcct timid! ui wnginw ma Ganulnt HO RUCK'S MALTED MILK 'Thi Food-drink for All Jgis. a Hf kvakk nd Growing cUdren, nireNuhition.iipbuadIng the whole body. Py'a ne nursmg mother and the agei Kich millc malted gnm, in powder form. A Onick III nr h nnn.p.J I- . - i"ut ui m nuuuie. Take no wbilitnte. Atkfor HORLICK'S. m no Comblno or Trust should be applied In payment of de fendant Virginia Watsou's mortgage. The lots In question should not bt burdened with the principal of, or in terest on the mortgage debt appoi tloned to the other lots. Mutual Mills Ins. Co. v. Gordon, 121 III., 366 Upon payment to the clerk of 1475 together with interest thereon at eight per cent per annum from the date to which the Interest on Mrs Watson's mortgage has been paid which from the note in evidence ap pears to be about June 20, 1897, and 0 attorney's fees, within 60 days from the date of entry of decree In the lower court defendant Ralda baugh Is entitled to conveyances of title to said lots in fee simple, free from all Incumbrance, lncludng Mrs. WatSOng mnrtcrnuQ tr,n - ee nvni ptuimiu Charles Scott as assignee, and from uvucuuuuiH noiuing title thereto through D. M. Smith namely, to lot 39 from Robert McGilchrlst and Belle Mrfilli'hrlut on i. in - iut iu i rum defendants Albert Smith, J. E. Smith. Cora Smith Frank V c-,,,1,1. j r ' Jory, by Cora Smith, her guardian, auuHuiuiea ior Abe Smith and Mar tha Smith. deeeAHxil in,! i ii,. . mu " vile vara of the failure to make either of such conveyances to defendants, the de cree shall stand as and for such con veyances, or either of them and be recorded as such. in the event of Raldabaugh's failure to so make such payments, defendant Virginia son's mortgage shall be foreclosed. ana the lots sold, in the manner pro vided bv law. nnrl unlit m.i ..,.. sold upon execution, and the pro ceeds thereof applied: (1) To the payment of the costs and expenses of making such sale, and the costs and disbursements of this suit; (2) To the Davmenf nf th qoM c,to ,-r and Interest and attorney's fees, as above Indicated, to defendnnt vir. glnia Watson: (2) Tn para an hol ance of said proceeds remains after making such payments, that the same be paid to the defendant Raldabaugh. The decree of the lower court shall be modified as herein indicated, as to interest. Neither party to recover costs upon this appeal. Men mar leelslate nn wflmnn'i nil parel, but those who try to enforce the law find what real trouble Is like. In the Wnke of the Measles. The litle son of Mrs. 0. B. Palmer, Little Rock, Ark., had the measles. The result was a severe cough which grew worse and was so severe he could not sleep. She says: "One bottle of Foley's Honey and Tar Compound completely cured him and he has never been bothered since." Croup, whooping cough, measles cough, all yield to Foley's Honey and Tar Compound. The genuine la In the yellow package. Refuse any substitute. Red Cross Pharmacy. Children Cry FOR FLETCHER'S CASTOR i A Safety Convertibility 4 0 1 Regular Income These are some of the ad vantages of an invest ment in our Savings De partment, An ideal investment for idle money or trust funds. Can be withdrawn on de mand, Capital National Bank SAVINGS DEPARTMENT R OME has Cement Sewers centuries old From the earliest times down to tho present cement has al. ways been used In sewer con struction. Every sower has Its cement Joints, cement lining, brick laid in cement mortar, monolithic or sectional cement pipe -or some manner of cement construction. We use the latoest mothoda and manufacture a glared ce ment pipe made entirely of a mixture of ono part cement and two parta coarse sand. This makes a pipe that will never wear out. Made In Falora by Salem people Your money stays at home when you buy our pipe. Call and Inspect our factory., get our prices and save money. Salem Sewer Pipe Company 265 S. Liberty St. Phone 14 i I eiepilUIIC Of i uuwi ; -v.nvr..w - - , ,.4Wt ' I M H