230 P. 541 | Or. | 1924
W. H. Boyd, Sr., was the father of W. H. Boyd, Jr., and John Boyd. The latter died leaving four children, viz., W. A. Boyd, who had passed the age of majority at the beginning of this suit, Ellen Boyd, a feeble-minded incompetent person, and Hubert and Ervine Boyd, both minors. In 1911, the senior Boyd made á 'will, the substance of which was that, after the payment of his debts and certain specific bequests, he gave his personal property, one half to his then living wife and the other half to the present plaintiff, W. H. Boyd. He then devised his real property, subject to his widow’s dower, one half to his son W. H. Boyd, plaintiff herein, and the other half to the children of his deceased son John Boyd, who are defendants in this suit. On April 16, 1921, after the death of his wife, the senior Boyd conveyed to his son, W. H. Boyd, a tract of improved land containing 297.58 acres, and to the four individual defendants another tract containing 520 acres, which is mentioned in the testimony as pasture lands. After the execution and recording of these deeds, which it is said was done without the knowledge of the defendants, the senior Boyd died. The mother of the defendants was dissatisfied with the disposition of the old man’s estate as affected by these two deeds, and was threatening suit on behalf
“in case said 520 acres were not transferred, the said Albert Boyd or W. A. Boyd will execute a mortgage to said second parties (meaning the plaintiff and his wife) to secure a note for the sum of $7500.00, it being optional as to which of the foregoing propositions is accepted by the said first parties, (meaning the children of John Boyd deceased, defendants herein), said note and mortgage shall bear interest at the rate of 6 per cent per annum and shall be payable on or before ten years after date.”
In part performance and in pursuance of this agreement the plaintiff, W. H. Boyd and his wife, conveyed the 132.58 acres to the defendants, but the defendants have not performed the counterpart of the agreement mentioned, either by conveying the 520 acres or by executing the mortgage mentioned. In passing it is well to note that it is not stated what realty or personalty shall be included in the mortgage.'
Asserting that the defendants have not performed their part of the agreement; that the same is void and that they are about to dispose of the 132.58 'acres, the plaintiffs sue to cancel the deed by which they conveyed that tract to the defendants. Mention
We have, for consideration, an attempted contract whereby an adult contracts with another adult who claims not only to represent himself but his incompetent sister and minor brothers, whereby the latter agrees in advance to convey the realty of his wards without having obtained any authority from the County Court for that purpose. That such an agreement is void as against public policy is settled by the exhaustive opinion of Mr. Justice McBride in Kirk v. Mullen, 100 Or. 563 (197 Pac. 300), Guardians cannot assume to dispose of the realty of their wards, or to make an agreement for that purpose in advance of authority conferred upon them by the County Court. The public policy of this state as enunciated in its Constitution and statutes is to make the County Court the special curator of the interests of minors and incompetent adults, and nothing can be done with their realty without the prior approval of that tribunal, made upon a proper showing.
One contention of the adult defendant, W. A. Boyd, is that as he was acting for himself, the agreement is valid pro tanto and cannot be overturned because of its invalidity so far as it concerns the other defendants. If he had made a separate individual covenant and the contract had been so accepted by the plaintiffs there might be something in his contention. The contract, however, is entire. It is
The agreement being void as against public policy, it is competent, so long as it remains executory, or, in other words, uncompleted in part, for either party to sue to set it aside and to recover all that he has expended or conveyed in part performance thereof: Leadbetter v. Hawley, 59 Or. 422 (117 Pac. 289, 505).
The Circuit Court was right in its decision to restore the parties to the situation they occupied before the contract was made, canceling the deed made by the plaintiffs conveying to the -defendants the 132.58 acres of land, and restoring to the defendant W. A. Boyd the undivided one-fourth interest in the 520 acres which he attempted to convey to the plaintiff W. H. Boyd. The decree of the Circuit Court is therefore affirmed and the plaintiffs will recover their costs and disbursements in this court, but neither party will recover from the other any costs or disbursements in the Circuit Court.
Affirmed,