Jakel v. Seeck

154 P. 424 | Or. | 1916

Lead Opinion

Mr. Justice Benson

delivered the opinion of the court.

1. There are some 26 assignments of error, but we do not regard it necessary to consider more than 1 or 2 of them, as practically every question of law involved in the consideration of the case has already been passed upon by this court in the case of Seeck v. Jakel, 71 Or. 35 (141 Pac. 211, L. R. A. 1915A, 679). There is no merit in the plea that this suit is barred by the action at law, since this court has repeatedly held that, under the statute which allows an equitable defense by cross-bill in actions at law, a party may rely upon a legal defense in an action without thereby being precluded from afterward asserting his equitable title in an original suit: Hill v. Cooper, 6 Or. 181; Spaur v. McBee, 19 Or. 76 (23 Pac. 818); South Portland L. Co. v. Munger, 36 Or. 457, 462 (54 Pac. 815, 60 Pac. 5); Bowsman v. Anderson, 62 Or. 431 (123 Pac. 1092, 125 Pac. 270).

2, 3. We are therefore to consider the evidence in the case. It is voluminous and hopelessly conflicting. However, if we confine ourselves to the testimony submitted by the plaintiff, we discover that he was not misled as to the contents of the deed. It was read to him by the scrivener, and he then noted the fact that the writing was silent as to any restriction upon the grantors in conducting a feed business upon their Grant Street property. In answer to a question By his attorney, he says:

“Well, when the deed was read to me I objected a little about it on account of it being just that in alone and not putting the others in, on account of the feed proposition.

“Q. What did they tell you?

“A. He told me, he says, ‘Well, you are protected,’ and then I left it go at that, I thought it was all right, I didn’t say any more.”

The evidence further discloses that on the same day that the deed was executed plaintiff gave defendants his note for $500 as payment on the purchase price of the'property, and the deed was then placed in escrow in a local bank, and nothing further was said- or done by either party until October 1st, at which time plaintiff demanded from defendants some written assurance that they would not conduct a feed business at their Grant Street property, and such a writing was then executed, which, through a blunder on the part of the scrivener, was so phrased as to be valueless, and on the next day the full purchase price was paid and the deed delivered and recorded. After about 4y2 years had elapsed, during which time the plaintiff conducted a feed business on the premises in controversy, he entered into a written lease of the property with Newman, in which there were no restrictions as to the nature of the business to be conducted thereon. Newman, shortly after taking possession, began to do a livery business, and about six months later defendants began their action to recover possession of the property.

We find no evidence in the record which establishes plaintiff’s contention that defendants conspired fraudulently to get Newman to lease the premises in order to bring about a forfeiture of the title. The only evidence upon tliis point is that of Newman himself, who says:

“I asked him if he would lease barn and sell his rolling stock. He said he would sell his rolling stock, but he asked me such a price that I couldn’t afford to pay it. I told him that I could not pay that, it was too much money. He asked me why I didn’t go lease the feed barn down at the depot. I told him that I had saw Jakel and tried to lease the bam, and he wanted $45 a month rent, and I was about to make the deal with him and he backed out. Then, two or three days later, I saw him again, and we was talking, and he wanted $50 per month, so I just laid $50 in his hand and tied him up.”

We are unable to find in this testimony any evidence of fraudulent purpose. Nor are we able to find in the record evidence that there was ever any agreement between the parties to the effect that conducting a feed business by the defendants upon their Grant Street property should render the forfeiture clause in the deed void. It follows that the plaintiff has failed to make a case entitling him to the relief for which he prays. If this conclusion works a hardship upon the plaintiff, he has only himself to blame. He accepted the deed with full knowledge of its contents and conditions. He acquiesced in these conditions for several years without complaint, and, when he permitted the conducting of a livery business upon the premises, he knew the hazard he was incurring. The courts cannot make new contracts for parties, nor relieve them from obligations deliberately assumed.

The decree of the lower court is reversed and the suit dismissed. Reversed. Suit Dismissed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Burnett concur.

---

Rehearing

Denied March 14, 1916.

On Petition eor Rehearing.

(155 Pac. 1192.)

Mr. M. Vernon Parsons, for the petition.

Messrs. Weatherford £ Weatherford and Mr. N. M. Newport, contra.

Department 1.

Mr. Justice McBride

delivered the opinion of the court.

4. The petition for rehearing discusses at some length the evidence in the case, but has not changed in any way our views as expressed in the original opinion. Counsel, however, makes the additional contention that, as the word “devert” is not found in any dictionary, we cannot assume that it is synonymous with “divert” or “revert,” and that it is, in effect, meaningless. From this premise he argues that, as forfeitures are not favored in law, and should be strictly construed, we should either reject the reverter clause wholly, or construe it as a covenant instead of a condition. But the question here is not as to the meaning of a particular word, but as to the meaning and intent of the clause taken as a whole, and, viewed in this -light, there can be no question but that it was used in the sense of “revert,” and the testimony shows that it was so understood by plaintiff, who admits that he objected to the clause at the time, but finally waived his objection and said, “Let it go at that.”

5. Courts are always reluctant to enforce a forfeiture, and will seize upon any ambiguity in a provision of this character in a deed to declare it a covenant instead of a condition: Oregon R. & N. Co. v. McDonald, 58 Or. 228 (112 Pac. 413, 32 L. R. A. (N. S.) 117, note); Voris v. Renshaw, 49 Ill. 425; Wier v. Simmons, 55 Wis. 643 (13 N. W. 873), and many other cases. The language of the court in the case last cited is as follows:

“The rule is well settled that conditions subsequent which work a forfeiture of the estate are not favored in the law, and no language will be construed into such a condition contrary to the intent of the parties when such intent can be derived from a consideration of the whole instrument, or from the circumstances, attending the execution thereof; nor will the language used be construed into such a condition subsequent, when any other reasonable construction can be given to it.”

Now, there can be no contention as to the intent of the parties in the adoption of the clause providing for a forfeiture in case the plaintiff or his assigns carried on a livery-stable on the property purchased; the intent is obvious. The fact that plaintiff at first objected to the provision indicates that he understood its purport, and the fact that he waived the objection and agreed, to use his own language, to “let it go at that,” indicates that he assented. Nor is there anything in Newman’s testimony which indicates that defendants assented to a different use of the premises. He offered to negotiate with them for the lease of their livery-stable, and they declined to deal with him for that, and suggested that he lease the feed barn; but there does not appear in the testimony any evidence of a suggestion from them that he should use the premises for any other purpose than a feed barn.

This court, like every court, is reluctant to enforce a forfeiture, especially one of this character, and has sought diligently for some legal reason to avoid it, but it is not within its power to make a new contract for the parties or to relieve the plaintiff from the consequences of the contract he has made for himself.

The petition is denied.

Reversed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson'concur.