Everson v. Haun

218 P. 135 | Or. | 1923

McBRIDE, C. J.

The weight of testimony seems to support the defendants’ contention. The original contract was made between Alexander C. Everson and James F. Haun. The premises to be conveyed were in fact held in entirety by Alexander Everson and his wife, Canzada, but the testimony indicated that before the final consummation of the contract she was fully aware of its terms and consented thereto on condition that she and her husband should be permitted to occupy one of the houses called the “home place” for six months at a reduced rental, and that when this was conceded she took an active part in making an inventory of the stock of goods which constituted a large part of the consideration exchanged for the property, participated with her husband in selecting people to manage the store, one of these being her brother, gave directions as to how the business should be conducted, assisted in the purchase of additional stock of merchandise, and generally acted only as a part owner would act in relation to the business. She and her husband are still in possession of the stock of goods and have made no effort to return the same, and while the husband expresses his entire willingness to complete the trade he assigns only the reluctance of his wife as a reason for not doing so. The court below was evidently of the opinion that there was a dishonest conspiracy between the plaintiffs to retain the fruits of their side of the bargain and at the same time to welsh out of making the conveyance by reason of the technicality that Mrs. Everson did not sign the contract. This being our own conclusion from the evidence, we fully concur with the court below in its findings of fact, and hold that Canzada Everson is estopped to deny that she made the contract set forth in the answer or, to speak more accurately, that she adopted the same by ratification and by accepting the consideration given by the defendants Haun therefor.

It remains only to discuss the question as to whether or not the defendants’ equities can be pleaded as a defense, or rather as an equitable counterclaim upon which they were entitled to affirmative relief. We are of the opinion that the court mig’ht well have refused to cancel or declare void the deed which defendants by mistake as to their legal rights caused to be put upon record. “He who seeks equity must do equity. ’ ’

And before plaintiffs were permitted to have a cancellation of the deed, which although technically void for want of delivery was precisely the deed which honesty and fair dealing required them to deliver, it would have been entirely within the province of the court to require them to make defendants safe in their title by tendering a new deed, and in effect this is what was done. The decree settled all the equities between the parties and required a new deed under certain conditions.

Here is the state of the case: The plaintiffs say in effect: “In March, 1920, we made a deed purporting in form to convey to the defendants certain realty, which deed was deposited in a bank with instructions not to deliver it except upon our order. And although we never gave any order to deliver it, the bank did deliver it to the defendants, who had it recorded ; and we now desire to have it canceled. ’ ’ The defendants in effect say: “Yes, it is true that you made a deed and deposited it and by mistake it was delivered to us without your order. In ignorance of our legal rights we did have it recorded, but that deed was made in pursuance of a contract which we have fully performed on our part, and'then and now we were and are entitled to have just such a deed and it would be inequitable for you to cancel the deed that we have and hold our property without making us the deed to which we are entitled.” Stripped of all technicalities, this is the issue between the parties.

The arm of equity is long. It will not reach half way to do half equity when whole equity can just as easily be grasped. It is needless to discuss the various ramifications of the law of specific performance. Nobody has ever yet defined the limits of equity and nobody ever will. It takes a case as a whole and, having obtained jurisdiction in the first place, it proceeds to administer complete relief by whatever means that relief may be achieved, whether it be by requiring specific performance as a collateral matter, the payment of money, the execution of a deed, or any other matter. And in this case to cancel this deed and declare it void, leaving the plaintiffs in possession of the property that had been turned over to them, and the defendants out in the cold, and to compel the latter to go into court in another suit to get what the testimony here indicates they ought to have, would be to encourage a barefaced and palpable fraud, which we decline to do.

The decree of the Circuit Court is therefore affirmed. Affirmed.

Bean, Brown and McCourt, JJ., concur.