Boyes v. Ramsden

55 P. 538 | Or. | 1899

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

It would be impossible to reconcile the conflict in the testimony of the parties in relation to the new agreement set up by defendant. That plaintiff received from him the said money and personal property is amply proven; but she testifies that the money was paid, and the horse, buggy, and harness were delivered to her, for another and different consideration, and that she never consented to the destruction of said deed. In Watson v. Janion, 6 Or. 137, it was held that a subsequent agreement will not operate to extinguish a former contract entered into between the parties, unless it is expressly accepted by them for that purpose, and that the evidence of an intention to modify the piior agreement must be clear and satisfactory. Tested by this rule, we are not prepared to say that the evidence of the intention of the parties to modify the prior agreement is so clear and convincing as to overcome the finding of the court below, which had the opportunity of seeing the witnesses, hearing them testify, and thereby being better able to determine the weight of the testimony than this court can be from an inspection of the record; and hence we must conclude that the facts are established as found by the court, and the only■ question remaining is whether the suit instituted is the proper remedy.

Defendant’s counsel contends that the plaintiff had an adequate remedy by an action at law for the recovery of the deed in question, and, this being so, the court erred in not dismissing the suit in equity. It has been held that replevin will lie to recover title deeds: 20 Am. & Eng. Enc. Law (1 ed.), 1062. In this country, under our recording acts, the value of a deed, after it has been copied into the proper records, cannot ordinarily be commensurate with the value of the premises conveyed ; but if the deed be in existence, .and capable of delivery, it is probable an action for its recovery would be adequate to obtain the evidence of the transfer of the title; but where, as in the case at bar, defendant had destroyed the deed, the remedy must necessarily prove unavailing: Wilson v. Rybolt, 17 Ind. 391 (79 Am. Dec. 486). Mr. Willard, in his work on Equity Jurisprudence (page 307), says: “The delivery up of deeds and other instruments to the party entitled to them, when they are improperly withheld, is an ancient head of equity jurisprudence.” To the same effect see 2 Story, Eq. Jur. § 703; Snoddy v. Finch, 9 Rich. Eq. 355 (70 Am. Dec. 216), Pomeroy, Spec. Perf. Cont. § 13, and cases cited in note 1. We think, in view of the facts of the case, that the remedy adopted was proper, and hence it follows that the decree is affirmed.

Affirmed.