119 P. 754 | Or. | 1912
delivered the opinion of the court.
“It is immaterial whether the proceeding against the property may be by attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the •specific execution of a contract to convey real estate is not strictly a proceeding in rem in ordinary cases; but where such a procedure is authorized by statute, or publication, without personal service of process, it is substantially of that character.”
“A suit for specific performance, like that of foreclosure, is of a twofold character, partly in gersonam and partly in rem. The court may enforce the contract, either by operating upon the person to compel a conveyance or may pass the title of the land by decree.”
It must be conceded that there must be statutory authority for such a proceeding, and such is the case in this State. By Section 399, L. O. L., service of summons by publication is authorized “when the subject of the suit is real or personal property in this State, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein.” Section 414 provides that “a decree requiring a party to make a conveyance, transfer, release, acquittance, or other like act within a period therein specified shall, if such party does not comply therewith, be deemed and taken to be equivalent thereto.” .These sections bring this case within the reasoning of the decisions heretofore cited. A contract to purchase land would be a hazardous proceeding, if the purchaser were required to search the civilized world and sue each heir in the place of his residence, in case of the vendor’s death, before performance, and we cannot concede that the law requires such an absurd procedure.
“He said he had a small tract of land, and didn’t have any house on it, and he wanted to know if I would not take the place and let him come and stay with us and live with us, if he would gi-ve us the place at his death, provided if we got along all right. * * So he furnished the lumber and built the house on his place, and, when he came and stayed with us something over a month, I asked him one day if he thought we could get along all right, and he said he was perfectly satisfied, and he said any time that we had time we would go to town and make out the papers. At his death I was to- have the place, providing I took care of him in his last illness.”
The “making out of the papers” was neglected, and finally this witness, by consent of Black, sold out his rights to one Stevens, who succeeded him in caring for deceased. Stevens testifies, in substance, that Black said he was willing to deal with him upon the same terms as he had promised Wiebke.
“I was to get the place, and I was to take care of Mr. Black, and at his death the place was to be mine. * * He said, if he got sick or anything, * * he would send to town and have his lawyer come out and make out the papers.”
“I have got a place down below there on the river just the same as Mr. Wiebke, and I got tired running backwards and forwards, and considered that the best proposition was to go down on the other place, and I didn’t have the papers for the other, and I didn’t want to run any risk at all, so I thought I would take the other proposition, which I knew was a safe one.”
In relation to the Hawkins contract, William Forrester testifies that Black said to him:
“He had a home at last; * * that he was going to give Mr. Hawkins the papers just as soon as he got settled down. * * As soon as they got things straightened around, he would make out the papers, and they should have the place as long as he lived; that is, they could have the place after he was dead, as long as they took care of him while he was living.”
Later Black told Wiebke that he had the same agreement with Hawkins that he had had previously with him. Williams, who is a son of Mrs. Hawkins, testified that Black applied to him to take care of him, and said that if he would do so, he would “make out the papers” that day, but would keep a life lease; that he declined, but recommended to Black Mr. and Mrs. Hawkins; and that Black afterwards told him that he was perfectly satisfied with them. The proposal, as Hawkins states it, is as follows: Black said: .
“If you will take care of me properly during my life, and see that I am properly buried, I shall turn that property over to you. It shall be yours. But, before we do that, I would like to know that I would be treated right or not, and I would like to stop with you and see if we get along all fight or not for a couple of weeks. If we get along all right, we will make the bargain and agreement. If we don’t, I will pay you what you are out, and that will end it.”
“Now, this is yours. All I want is just to be taken care of.”
Hawkins further testified:
“He said he would make out writings that would be satisfactory to both parties, turning the property over to me; that he would want a life interest in it; that he would want to be sure that he wouldn’t be beat out of a living while he did live. He simply wanted a life interest in the property, and, when he was dead, it was mine. ‘It is yours,’ he says, meaning me and my wife.”
Mrs. Hawkins’ testimony is substantially the same as that of her husband. She testifies that, when they moved out to Black’s place, he said:
“This is yours. Everything here is yours. You don’t need to consult me about nothing. All I want is care as long as I live and I feel that I will get it. * * We took perfect possession of the place.”
In answer to a question, on .cross-examination, Mr. Hawkins testified:
“He said when we got out there and were settled we would come back to town and make out the writings.”
Q. “He wanted to protect himself?”
A. “Yes; he said he would make out the deed.”
The foregoing is practically the substance of the testimony as to the agreement, except that Mrs. Hawkins testifies that upon his deathbed she asked him if he was satisfied with his treatment, and he answered, “Yes.” It will be noticed that the last answer above quoted is the only instance in which the word “deed” is used, and that seems rather a deduction of the witness as to the
“He said * * we would come back to town and make out the writings.”
And it is a significant fact that in all his conversations, as related in the testimony, he never used the word “deed.” The witnesses all agree that he said “make out the writings,” “make out the papers,” “make out the agreement.” We think the testimony does not indicate that he ever intended to make any conveyance which would tend to deprive him of the title or possession of his property during his lifetime. His intention was evidently to protect himself and hold the whip hand, so as to secure proper treatment, and if, when he felt death approaching, he thought he had received this, to make a will, bequeathing his property to plaintiffs. This is shown by the testimony of Wiebke, with whom he made an identical agreement, and by the testimony of Stevens, who succeeded Wiebke; the latter witness saying:
“I was to get the place and I was to take care of Mr. Black and at his death the place was to be mine.”
Q. “Was this to be in writing?”
A. “Well, he said, if he got sick or anything, * * he would send to town and have his lawyer come out and make out the papers.”
It is evident that the arrangement was to be tentative, until he could see the very end. The plaintiffs testify that, after his two weeks residence with them in Eugene, he expressed himself perfectly satisfied, and ready to make the agreement. But, if this were true, why did he not then, when he was near a lawyer and notary, make the conveyance? Why delay until they had moved out to his farm, and thus necessitate a useless trip to Eugene ? He may have been satisfied with the treatment he had
The decree of the circuit court is affirmed.
Affirmed.