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-
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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
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Sold Everywhere. In boxei 10c. and 25c
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With our assurance that we are
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we solicit your Banking Business.
Open an account with 'us and we will
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Ve Pay Four Per Cent on Savings
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l Salem Fence Works !
Headquarters for Woven Wlr
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Photie 135.
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