24 Or. 89 | Or. | 1893
delivered the opinion of the court.
This is a suit brought by the appellant against the respondents to compel the specific performance of a contract to sell real property, contained in the following agreement: —
“This indenture of lease made and entered into on this nineteenth day of January, 1887, by and between Ellen L. Jackson and Wm. R. Jackson, her husband, of Washington County, Oregon, parties of the first part, and J, B. Haley, of Multnomah County, Oregon, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the yearly rental of one hundred and fifty dollars, and the covenants and agreements hereinafter mentioned, lease unto said party of the second part, for the term of five years and three months from the first day of January, 1887, the following described premises to wit: That certain tract of land situated on Sauvies Island, and known as the Jackson Ranch, and more particularly described in' certain deeds from Meir & Prank and Richard Hall to W. R. Jackson, and recorded in the records of Multnomah and Columbia Counties, Oregon, and containing two hundred and eighty-seven (287) acres, more or less. And the said party of the second part herein agrees to pay the said yearly rental of one hundred and fifty ($150) dollars, in the following manner, to wit: Seventy-
“ In witness whereof we have hereunto set our hands and seals on the day -and year above written.
“Ellen L. Jackson, [seal]
“¥m. R Jackson, [seal]
“John B. Haley, [seal]
'! Executed in the presence of,
“Chas. A. Butler.'
“J. W. Morgan.
“It is further stipulated and agreed by and between the parties of the first and second part in the above and foregoing lease, that all said sums of money therein agreed to be paid by said J. B. Haley, for rent or otherwise, shall be paid to the said Ellen L. Jackson, her heirs and assigns.
“ Ellen L. Jackson, [seal]
“¥m. R Jackson, [seal]
“John B. Haley. [seal]
“ Executed in the presence of,
“ Chas. A. Butler.
“ J; W. Morgan.”
To support the decree the respondents contend — First, that the contract is not mutual; second, that the premises cannot be identified from the description; and, third, such contracts cannot be enforced by an assignee.
1. The rule is well established that to entitle a party to specific performance of a contract, there must have been, at the time of its execution, a mutuality, both as to the obligation and the remedy,— an agreement to buy as well as an agreement to sell,— and that a party not bound by the agreement has no right to call upon the court to enforce performance against the other party, by expressing a willingness to accept the terms of the contract: Waterman, Specific Performance, § 196. This general rule, like most others, has its apparent exceptions. “ It is now well settled
2. Was there any consideration for the option, is the first question presented. It has repeatedly been held that in a lease of real property, containing an option to purchase the same, the contract to pay the rent was a sufficient consideration to support the option. In Souffrain v. McDonald, 27 Ind. 269, Elliott, J., in support of this doctrine, says: “The stipulation, on the one side, to lease the lot for a period of two years, with the right of the lessees, within that time, to purchase the same at the price and on the terms stated in the agreement, and, on the other side, to pay the rent agreed upon and to erect the fence, must be considered as constituting one entire agreement, each particular stipulation forming an inducement thereto. The agreement to pay the rent and build the fence must be deemed to have been made in consideration of as well for the privilege of, becoming the purchasers of the lot, as for its use.” In Stansbury v. Fringer, 11 Gill & John. 149, real property had been leased for a term of twelve years in consideration of the payment of the taxes and of the erec
3. From the testimony of Haley, the lessee, it appears that when the lease was executed he considered the rent worth one hundred and fifty dollars per year, and from this, the respondents contend that there was no consideration for the option. The defendant Wm. B. Jackson testifies that Haley had occupied the premises for a term of five years under a prior lease, and paid the same rent therefor, and that he had erected a house and barn thereon which he threatened to remove if he could not secure a renewal of the lease. Haley also testifies that he would not have taken the present lease if it had not been for the option, as he wanted to get the benefit of the improvements he had made on the place. We think it conclusively appears that the improvements made upon the property under a prior lease constituted the real consideration for, and is sufficient to support, the option contained in the present lease.
5. The option having been given to Haley, could he transfer his right so that his assignee could enforce the. same ? The ground upon which a court enforces an ex-ecutory contract for the sale of lands is that equity considers things agreed to be done as actually performed; and when an agreement has been made for the sale of lands, the vendor is deemed the trustee of the purchaser of the estate sold, and the purchaser as trustee of the purchase money for the vendor. The vendee, in equity, is actually seized of the estate, and, as a consequence, may sell the same before a conveyance has been executed, notwithstanding an election to complete the purchase restsentirely with the purchaser: Kerr v. Day, 14 Pa. St. 112 (53 Am. Dec. 526). Haley had an estate in the premises, and' was equitably the owner thereof, and could transfer this right, and his assignee can enforce the option to the same extent as his assignor.1 The evidence shows that at the time the contract was executed the property, was worth no more than the amount named in the option, and several witnesses fix the value at that time at a much less sum. Because the value of the property has increased, is that any reason why a court of equity should refuse to decree specific performance of a contract which was fair and equitable at the time it was executed ? It is said that such decrees rest in the discretion of the court. This does not mean the exercise of an arbitrary will governed by mere pleasure of the court, but is controlled by fixed rules and principles, in view of the special features and incidents of each case. Courts cannot make contracts for parties, but should enforce them in the furtherance of justice, when fair and equitable.