133 P. 345 | Or. | 1913
Opinion on the Merits
Decided January 27, 1914.
On the Merits.
(138 Pac. 233.)
delivered the opinion of the court.
It appears from the record that in February, 1911, plaintiffs were the owners of 15.70 acres of land near Newberg, Yamhill County, Oregon, particularly described in the complaint, of the value of about $6,000; and that they also owned an equitable interest, amounting to $1,000, in lot A, first addition to Jennings Lodge, in Clackamas County, Oregon, where they resided. Being about 66 years old and in poor health, plaintiffs -were advised by their physicians to go to California to live. Defendant McGovern was then in the grocery business at Jennings Lodge; the business being conducted in the name of L. D. Miller, who is now his wife. The plaintiffs traded at McGovern’s store, and had implicit confidence in him. Mrs. Clough told him and others that if they could dispose of their property they would go to California. Mr. McGovern informed her that he thought he could find someone to take the same. One A. W. Baker, of California, had listed with the E. Herbert Poe Company, a real estate firm of
“Portland, Oregon, March 7-8, 1911.
“E. Herbert Poe Company, Red Bluff, Calif.:
“Your terms on number 25 in letter to Mr. Miller of March 1, accepted. Make deed to Chas. Clough, and forward with abstract to date to Hartman & Thompson, bankers, Portland, Oregon. Will examine title and pay money to bank if satisfactory. $900 cash, balance three equal yearly payments, 7%.
“M. D. Hobbs Realty Company.”
The plaintiffs knew nothing about this correspondence. About February 20, 1911, defendant McGovern introduced defendant V. J. Dawson to plaintiffs as a close friend of his who had property in California to trade for Oregon property. Dawson falsely represented to plaintiffs that he had 12 acres of land three miles from Red Bluff, in Tehama County, California, a beautiful piece of agricultural and fruit land, all of which could be irrigated, 2 acres of Bartlett pears that produced a crop worth $400 the year before, 40 orange trees, about the same number of fig trees, one full-bearing large walnut tree, berries of all descriptions, 4 acres of peaches, prunes, and cherries, 6 acres
McGovern traded 10.70 acres of the Newberg tract to Paulus D. Newell and Laura Newell for a half interest in 40 acres of land in Tillamook County, described in the record, and informed Newell that the deed therefor would come from Dawson. This deed was executed by Rose Dawson and V. J. Dawson. The Dawsons also deeded the remaining 5 acres of the Newberg tract to Lenora D. Miller. On May 24, 1911, the plaintiffs journeyed to Red Bluff, Tehama County, California. About 15 minutes before their departure, the deed of the California property from Baker was delivered to them. Upon their arrival they found that the California property had been grossly misrepresented, and that it was worth no more than $1,800, being subject to a $1,000 mortgage; that Dawson had never seen the property; that a portion of the land was in the bed of a creek, consisting of gravel; half the tract upon the bench from the creek bottom being what is known as red land, which is red soil mixed with gravel, unfit for agricultural purposes and not susceptible of being irrigated; that - no portion was planted to alfalfa; that there were no fruit trees, except seven orange trees, one lemon tree, bearing very small fruit, and one acre of a small variety of pear tree; that the buildings were small, the barn 14 feet by
Lenora Miller testified that she never wrote the typewritten letter to the Poe Company; that she was postmistress at Jennings Lodge, Oregon, during that time; that, if a letter came there addressed to Mr. L. D. Miller (at Jennings Lodge), she certainly turned it over to Mr. McGovern, as she did some bills which came addressed in that manner.
In 1 Pomeroy, Eq. Jur. (3 ed.), Section 155, we find the following: “Constructive trusts are raised by equity for the purpose of working out right and justice, where there was no intention of the party to create such a relation, and often directly contrary to the intention of the one holding the legal title. * * If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in-good conscience entitled to it, and who is considered in equity as the beneficial owner.”
The decree of the lower court will therefore be affirmed. Affirmed.
Lead Opinion
delivered the opinion of the court.
This is a motion to dismiss an appeal based on the ground that the transcript does not contain all the testimony given at the trial.
The motion to dismiss appeal is therefore denied.
Motion Denied.