73 P. 3 | Or. | 1903
delivered the opinion.
This is a suit to compel the specific performance of a contract to convey real property. The facts are that on August 1, 1899, the defendant D. G. McFarland, being the owner in fee simple of lot 4 in block 5 of his Second Addition to Cottage Grove, Oregon, executed to the plaintiff, Mrs. M. J. Hawley, a bond for a deed, covenanting to convey said lot to her on or before one year therefrom, upon payment tó him in the meantime of the sum of $100 and interest thereon at 8 per cent per annum ; and, having been permitted to take possession of the premises, she built a house and barn thereon, and has ever since been in the possession thereof. Her husband, the defendant W. B. Hawley, on March 26,1900, purchased from the defendant
One William Cummings had been a partner with Sehr, but, upon the latter’s retirement by the sale of his interest in the goods, Hawley became a member of the new firm. The old firm of Sehr & Cummings, at the time it was dissolved, was indebted to a Mrs. S. E. McKinney on a promissory note, and on March 26, 1900, Hawley and his wife and Cummings executed a new note to Mrs. McKinney, and the old one was surrendered, thereby discharging Sehr. This note not having been paid at maturity, Mrs. McKinney commenced an action thereon about the last of May, 1900, and attached the goods in the store, upon the seizure of which Mrs. Hawley served a written notice upon McFarland that the bond belonged to her, and she testifies that this was the first intimation she had of the assignment. She further testifies that she had nothing to do with the store, but upon the goods being attached she
Mrs. McKinney’s testimony would strongly tend to support the view contended for by the defendants’ counsel if it were entitled to the credit claimed for it. Her note was given March 26, 1900, and, in speaking of the year when it was executed, she said it was 1890. Her attention having been particularly called thereto, however, she corrected the statement by saying it was in 1899, but, the plaintiff’s counsel having remarked that it was in 1900, she replied;