56 P. 1093 | Or. | 1899
delivered the opinion.
This is a suit to cancel and annul a contract for the sale of real property, made and entered into between W. S. Frink and John Thomas, to have Thomas declared a trustee of the legal title to the northeast i of section 3, township 9 south, range 6 west of the Willamette Meridian, containing one hundred and sixty acres, being a portion of the land contracted to be conveyed; and for an accounting of rents and profits. Both parties having died since suit was instituted, plaintiffs were substituted for Frink, and B. F. Hoke, administrator, et al., for defendant. The facts, about which there is very little controversy, as shown by the record, are as follows : W. S. Frink, the ancestor of the plaintiffs, moved upon said quarter section in 1870, and, upon making inquiry of the government with a view of entering it as a homestead, was informed that it had been previously entered by one Grant, but was subsequently notified that Grant’s filing had been canceled, and that the land had inured to
Subsequently, about October 1, 1883, Thomas had a notice published in a Dallas newspaper, notifying all persons that the promissory notes which Frink held against him for the purchase price of the property were without consideration, and void ; that he was not bound by them, and would not pay the same, nor any part thereof. Frink afterwards instituted a suit to rescind the contract for want of such payment, and to be declared the owner of the one hundred and sixty-acre tract in the event that Thomas should be awarded the patent in the contest then pending before the interior department. The suit to rescind was decided against Frink, for the reason, among others, that he did not offer to perform, or return the money and notes, and for the further reason that this court could not determine the controversy while a dispute touching the rights of the parties to the patent was pending in the land department. Patent was issued to Thomas in March, 1893. Prior to the publication of the notice touching the notes, Thomas had paid $340 of
The defendants cite several authorities in support of this contention, among them Clark v. Bayley, 5 Or. 348 ; Warren v. Van Brunt, 86 U. S. (19 Wall.) 646; Marshall
The situation of the present controversy is this: Frink, in good faith, believing he would be able to obtain a valid title to the land from the railroad company, entered into the contract in question. Thomas was informed of the condition of affairs, and whatever he did in the premises was done with full knowledge thereof. There was no attempt to formulate contract relations whereby the one party or the other should be required to obtain the title from the government before making conveyance. In fact it was supposed that the
In so far as the accounting is concerned, it is established by the evidence that the reasonable rent of the premises was $100 per year, amounting to $1,400. This exceeds but slightly, if at all, the outlays of Thomas, including interest, as it respects the purchase price, and plaintiffs should recover nothing for such rents and profits. It is proper to add, in this connection, that it does not appear by the record what amount, if any, Frink recovered from the railroad company on account of the said one hundred and sixty-acre purchase. The decree of the court below will be affirmed.
Affirmed .