64 P. 656 | Or. | 1901
after stating the facts in the foregoing terms, delivered the opinion.
It is contended by appellant’s counsel that the parties entering into the agreement to purchase the land from Mrs. Tupper were cotenants, and not partners in that or any other transaction, and that the following clauses in the deed executed by plaintiff and his wife and others to Merchant, viz.: “And whereas, said lands were purchased for and on behalf of said A. M. Crawford, C. H. Merchant, C. W. Tower, George W. Loggie, and Eugene O’Connell, each owning an undivided one fifth thereof,” and “said premises are hereby conveyed subject to the mortgage heretofore mentioned, and each share or portion held in trust as aforesaid' is liable and held for its proportionate share thereof,” — conclusively show that neither O’Connell nor Merchant was liable for any default of plaintiff, Tower, or Loggie ; and, this being so, they could purchase at an involuntary sale the interest, and secure the legal title thereto, of either or all of said parties in the premises, and, having done so, the court erred, in rendering the decree complained of.
The defendants Loggie and Tower having failed to pay their proportion of the purchase price of the land, their respective interests therein, resulting from the payments which they had made on account thereof, were declared forfeited; and, neither having appealed, they are concluded by the decree, and hence the interest of each inured to the plaintiff and to the defendants Merchant and O’Connell, thereby increasing their respective interests in the lots and blocks remaining unsold to an undivided one third thereof. Whether O’Connell would have been obliged to make any contribution in case he had paid one fifth of the purchase price and secured a title to one fifth