158 P. 952 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
With reference to the assignments of error based upon the findings of fact, it may be said at the outset that, while the evidence is conflicting, there is ample testimony in the record to justify the results reached by the trial court, and we are not inclined, therefore, to disturb them.
“The intent of the grantor must govern, and this is to be derived from all the facts, circumstances, and*123 proof. Nor is it necessary that the condition upon which the deed is delivered in escrow be expressed in writing; it may rest in parol, or be partly in writing and in part oral. The rule that a contract in writing inter partes must be deemed to contain the entire agreement or understanding has no application in such case” — citing Stanton v. Miller, 58 N. Y. 193.
To the same effect is 1 Devlin on Deeds (3 ed.), Section 312a, which says:
“It is well settled that the condition upon which the deed is delivered in escrow may be proved by parol evidence. The statute of frauds has no application to such an agreement, ordinarily, nor is it affected by the rule of evidence which prohibits a written contract from being contradicted or varied by parol evidence. ’ ’
In Cannon v. Handley, 72 Cal. 133 (13 Pac. 315), the court uses this language:
“But it is said there was nothing in writing authorizing Cox to hold or deliver the deed. There is nothing in the statute which requires this to be in writing. The statute only requires a note or memorandum in writing as evidence of the contract. Nothing in it has reference to any arrangement for the delivery of the deed in escrow, or its subsequent delivery by the party so- holding it to the grantee.”
If it were otherwise, and proof of the escrow agreement were excluded by the statute of frauds, that condition would not change the nature of a transaction from a sale to an option. The cases cited by appellant are not inconsistent with the views here expressed, since in each of them the vital point was an effort to enforce specifically the terms of an executory parol contract, while the case at bar presents an executed contract wherein the escrow had been terminated by delivery prior to the commencement of this suit.
There are other assignments of error; but, since they are involved in the discussion already had, it is not regarded as necessary to discuss them.
The decree is affirmed. Affirmed.
Rehearing
Argued on rehearing December 12, 1916, reversed and remanded February 27, 1917.
On Rehearing.
(163 Pac. 311.)
In Banc. Statement by
This is a suit to remove clouds cast upon a title by certain deeds. A rehearing was granted, and we have therefore had the advantage of two oral arguments and the benefit of additional briefs on the. rehearing. The decree of the Circuit Court was for the defendants, and the plaintiff appealed. Elizabeth Williams was the owner of a tract of land consisting of mud flats, which were covered and uncovered by the flow and ebb of every tide. Under date of July 21, 1906, she signed a writing in the form of a warranty deed purporting to convey the land to Henry Sengstacken “for the consideration of the sum of fifteen hundred
“The deed was left with me to be held nntil he [Sengstacken] made the payments, the deferred payments — there was $1,000 to be paid — and I was to deliver the deed to him in two years upon the payment of this money.”
Sengstacken paid the first installment of $500, and within a year paid an additional $250 to Elizabeth Williams, but did not pay the balance of the second installment when it became due. Hall testified that he told Elizabeth Williams of the default in the payment, and that she said:
*126 “ ‘He is all right; let the deed lay there, and when he pays you you can turn it over to him.’ She said, ‘If he don’t pay it, the land is not worth much more than what I got anyhow,’ and she instructed me to hold the deed, and deliver it whenever he paid it, but to extend the time,” and, “As I said before, when he was behind, I spoke to her, and she told me to let the matter lay, and whenever he paid the amount to deliver the deeds to him. ’ ’
Elizabeth "Williams died on May 1, 1909, leaving a will which devises unto John M. Foulkes all the real estate of which the testatrix “may die seised.” In July, 1911, Sengstacken paid $750, with interest, to Hall and received the deed.
Former Opinion Overruled.
Reversed and Remanded With Directions.
For appellant there was a brief over the names of Messrs. Stoll & Hodge and Mr. Woodson T. Slater, with oral arguments by Mr. Dwight E. Hodge and Mr. Slater.
For respondents there was a brief over the name of Messrs. Peck & Peck, with an oral argument by Mr. Cassius R. Peck.
delivered the opinion of the court.
‘ ‘ The transaction does not vest in the grantee a fee in possession but only a fee in remainder after the life estate of the grantor, which by implication is carved out of the fee, has terminated.”
“To call the requirement imposed upon the grantee a condition precedent to the vesting of title is to beg the question; if the title is regarded as passing with the delivery of the instrument to the custodian it is a condition subsequent, upon the nonperformance of which the title will revert. So far as the grantor and his heirs are concerned there is no possible hardship in considering that when he has placed the deed beyond his recall — when in spite of anything he can do it must ultimately become fully effective — it becomes operative in contemplation of law at once.”
Jackson v. Jackson, 67 Or. 44 (135 Pac. 201, Ann. Cas. 19150, 373), is much like this class of cases and it is worth observing that in the extended note appended to this case in Ann. Cas. 1915C, 373, the editor says that the weight of authority is to the effect that:
“The deposit of a deed to be delivered on the performance of a condition after the death of the grantor stands on the same footing as a deposit for delivery unconditionally after the grantor’s death.”
The circumstance that the instrument is deemed to be the deed of the grantor presently and the further fact that a contract to convey is not necessary differentiate these cases from those involving pure escrows.
The evidence conclusively disproves the charges of fraud made by plaintiff. At all times the defendants acted in good faith, and they honestly believed that they had a right to do all that they did.
This controversy presents some features which naturally appeal to the sympathy of a chancellor and yet courts cannot declare that contracts are valid when the statute law in positive and unequivocal terms pronounces them invalid. As has been aptly said, “hard cases are the quicksands of the law. ’ ’ In the long run it is better to follow the law and avoid the quicksands. The record does not disclose the amount of the taxes paid by Sengstacken. and consequently it will be necessary to remand the cause to the Circuit Court with instructions to ascertain the amounts paid. The decree is reversed and the cause is remanded to the Circuit Court for the purpose of ascertaining the amount of the taxes paid by Sengstacken, without costs to any party in either court.
Former Opinion Overruled.
Reversed and Remanded With Directions.
Concurrence Opinion
concurring in part, delivered the following opinion:
I concur in the reasoning of Mr. Justice Harris to the effect that an escrow in a ease like this must be supported by an agreement to sell real property conforming to the statute of frauds on that subject. The defendants pray only for a decree dismissing the suit and for costs and disbursements, but do not ask for
“The counterclaim of the defendant shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit.”
Having a plain, speedy and adequate remedy at law for the recovery of the money, the party paying’ the same must look to it and cannot expect a recovery in this suit, especially where that relief has not been prayed for.
The decree of the Circuit Court should be reversed and one entered for the plaintiff according to the prayer of his complaint.