136 P. 893 | Or. | 1913
delivered the opinion of the court.
On November 19, 1910, the defendant herein commenced, in the Circuit Court of Hood River County, an action at law against the plaintiff herein for the recovery of $500 paid by the former to the latter on the purchase price of a 20-acre tract of land in Hood River County. The plaintiff in this suit filed an answer in said action at law and at the same time filed a complaint in equity in the nature of a cross-bill, praying for the reformation of the contract for the sale of the real property and for a decree for the specific performance of said contract, when so reformed.
The contract forming the basis of this suit, and which the plaintiff desires to have reformed and specifically enforced, is in writing and in the following words, to wit
“Memorandum of agreement made this 18th day of July, 1910, between Ferdinand William Knolhoff, party of the first part, and Henry A. Mark, party of the second part, witnesseth: That the party of the first part agrees to sell and convey by good and marketable title a tract of twenty (20) acres of land situate on Upper Hood River, Hood River County, Oregon, being the same land which has been the subject of discussion*439 between the parties, for the sum of fifty-five hundred ($5,500) dollars payable as follows: Two hundred and fifty dollars, on the execution of this instrument; two thousand two hundred and fifty dollars on the closing of title as hereinafter provided; three thousand dollars by the party of the second part executing a purchase money bond and mortgage for that amount, bearing interest at the rate of eight per cent per annum payable semi-annually, from September 1,1910, said mortgage to be due in six years from the date thereof, and to contain the privilege of prepayment at any time before maturity, on thirty days’ notice. The title is to close on the 15th day of August, in the year 1910, at the office of H. A. Mark, 135 Broadway, New York City.
“Ferdinand William Knolhoff. [L. S.]
“Henry A. Mark. [L. S.] ”
The plaintiff asks that said contract be so reformed that the 20 acres of land referred to in said contract will be described therein as follows: “The south half of the northwest quarter of the northwest quarter of section 8 in township 1 south, range 10' east of the Willamette meridian, containing 20 acres, according to the the United States government survey thereof, and containing 20 acres, more or less. ’ ’
The complaint alleges that, by inadvertence, oversight and mistake, the scrivener who prepared and wrote said agreement neglected to more fully and particularly describe said land in said agreement.
The defendant paid the plaintiff the sum of $250 at the time that said contract was executed, and on July 20, 1910, he paid $250 more on the purchase price of said land.
The plaintiff alleges that he was at the time of the making and completion of said contract and now is ready, able and willing to convey said land to the defendant by a good and sufficient conveyance thereof,
The defendant answered said complaint, denying parts thereof, and setting up facts as to the execution of said contract, and inter alia the answer alleges that, when the plaintiff and the defendant were negotiating for the sale and purchase of said land, the defendant informed the plaintiff that he wanted to purchase only lands already supplied with water for irrigation, and that the plaintiff, well knowing defendant’s said desire, represented to the defendant that he owned just such land as the defendant desired and, for the purpose of inducing him to purchase his said land, did falsely and fraudulently state and represent to the defendant that his said land, which he proposed to’sell to the defendant was “irrigated land,” and that the purchase of the same by the defendant would carry with it and Would thereby convey to the defendant the right to the use of sufficient water to irrigate the same, to wit, 11 inches (miner’s measure) of water, at an annual cost to the defendant of not to exceed $1.75 per inch, which said representations were false, when so made, and were well known to the plaintiff to be false, and were made for the purpose and with the intent of deceiving, defrauding, and inducing him to enter into said contract and paying the money as aforesaid. The answer further alleges that these negotiations were carried on at a great distance from said land, to wit, in the States of New York and New Jersey, and that the defendant had no knowledge, nor the means of obtain
The reply denied part of the new matter of the answer and set up new matter. The pleadings are lengthy, and it is impracticable to set them out more fully
This is a suit by the vendor to enforce specific performance of a contract for the sale of real property. There are several questions presented for decision.
The defendant claims that the contract which the plaintiff asks to have enforced is not sufficiently certain, as to the description of the property to be conveyed, to enable the court to decree a specific performance, and he contends strenuously also that the plaintiff prevailed on him to execute the contract sued on by fraudulently representing to him, when the contract was executed, and in the negotiations leading up to its execution, that the 20-acre tract was irrigated land, and that there was plenty of water appurtenant and belonging to said land, which would be conveyed to him by the plaintiff’s deed, to irrigate said lands, and that said representation was false, etc.
The plaintiff’s exhibit “B,” which was offered in evidence before the referee at Hood River, purports to be a warranty deed, made by the plaintiff and his wife to the defendant, in Essex County, New Jersey, on July 30, 1910, purporting to convey to the defendant the 20 acres of land in dispute, located in Hood River County, Oregon. This instrument is in proper form and appears to have been subscribed by the plaintiff and- his wife, but it appears to have been attested by only one subscribing witness.
Deeds of conveyance of real property, executed in this state, are required to be attested by two subscribing witnesses: Section 7109, L. O. L. This instrument, if it had been executed in this state, would be invalid as a deed of conveyance because it is attested by only one witness.
Section 7110, L. O. L., provides that, if a deed of conveyance shall be executed- in any other state of the United States, such deed may be executed according to the laws of such state, and the execution thereof may be acknowledged according to the laws of such other state, before any judge of a court of record, justice of the peace, notary public, or other officer authorized by the laws of such state to take acknowledgments of deeds therein or before any commissioner appointed by the Governor of this state for such purpose.
Section 7111, L. O. L., is as follows:
“In the cases provided for in the last section, unless the acknowledgment be taken before a commissioner appointed by the Governor of the state for that purpose, or before a notary public certified under his notarial seal, or before the clerk of a court of record*445 certified under the seal of the court, such deed shall have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate- of acknowledgment was at the date thereof such officer as he is therein represented to be, that he believes the signature of such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such state, territory or district. ’ ’
Exhibit “B” was acknowledged before Charles S. Andrews, a commissioner of deeds of the State of New Jersey. He was an officer of that state and not of the State of Oregon. Attached to his certificate of acknowledgment is a certificate under seal in the following words:
“State of New Jersey,
County of Essex — ss.:
“I, John B. Woodston, clerk of the county of Essex (and also clerk of the Circuit Court and Court of Common pleas, the same being a court of record, having a seal), do hereby certify: That Charles S. Andrews, Esquire, whose name is subscribed to the attached certificate of acknowledgment, proof or affidavit, was at the time of taking said aclmowledgment, proof or affidavit, a commissioner of deeds, an officer of said state, duly authorized by the laws thereof to take and certify the same, as well as to take and certify the proof and acknowledgment of deeds and other instruments in writing to be recorded in said state, and that full faith and credit are and ought to be given to his official acts; and I further certify that I am well acquainted with his handwriting and verily believe the signature to the attached certificate is his genuine signature.
*446 “In witness whereof, I have hereunto set my hand and affixed my official seal this 30th day of August, 1910.
“ [Signed] J. B. Woodston,
“Clerk.”
The seal of the court is impressed on said certificate. The foregoing certificate is a printed form, and it was not drawn according to our statute, and it omits a material statement required by Section 7111, supra.
In Knighton v. Smith, 1 Or., pp. 277, 278, the Supreme Court of this state, passing on the sufficiency of the certificate of acknowledgment of a release made in California, under like circumstances, says:
“As to the first ground of error alleged, that the certificate of the acknowledgment to the release was insufficient, we are satisfied that all acknowledgments taken without this state, unless before a commissioner” of deeds “appointed by the Governor of this state for that purpose, must be supported by a certificate of a clerk or other proper certifying officer of a court of record, as provided in Section 12, page 520, of the statutes of this state, for, when the statutes make an express provision affecting the authentication of deeds, it must be strictly complied with.”
In Fleschner v. Sumpter, 12 Or. 187 (6 Pac. 510), the court says:
“The mortgage from Alexander Sumpter to the appellant was properly acknowledged and entitled to record; but the deed from Sumpter and wife to the respondents Hibbard and Brazee was not entitled to record, as there was no certificate from the proper officer to the effect that the clerk of the District Court of Idaho Territory, before whom the acknowledgment was taken, was such clerk, or that the deed was executed in accordance with the laws of that territory.”
The plaintiff’s said Exhibit “B,” not having been certified in accordance with the requirements of Section 7111, L. O. B., was not a good and sufficient deed of conveyance, and, if it were accepted by the defendant, it would not be entitled to be recorded in the public records of Hood River County. It is not such a deed as a purchaser is entitled to receive, and no vendee can be compelled to accept such an instrument.
In a case of this kind a vendor cannot maintain a suit for the specific enforcement of a contract of sale and properly maintain a decree for that purpose unless he has executed a good and sufficient deed of conveyance and tendered it to the vendee or brought it into court. No more money was to be due until the deed should be made, and the defendant could not execute the mortgage for the $3,000 until the title to the land should vest in him.
The plaintiff having failed to execute and tender to the defendant, or to produce in court, a good and sufficient deed of conveyance for the land in controversy, he did not make out a prima facie case: Soper v. Gabe, 55 Kan. 649 (41 Pac. 969); Lanyon v. Chesney, 186 Mo. 551 (85 S. W. 568); Klyce v. Broyles, 37 Miss. 524; Kimbrough v. Curtis, 50 Miss. 120; Kirkman v. Kenyon, 17 Ind. 607; Counce v, Studley, 81 Me. 431 (18 Atl. 288); Martindale v. Waas (C. C.), 8 Fed. 854; 26 Am. & Eng. Ency. of Law (2 ed.), 133; Johnston v. Wadsworth, 24 Or. 496 (34 Pac. 13).
It is unnecessary to examine the question whether the contract for the sale of the land is sufficiently certain as to the description of the land to form the basis for a suit for specific performance, or whether the plaintiff was guilty of making false representations as to water for irrigation of the lands, as alleged in the answer. The plaintiff still owns the land and has not parted with its possession, and he has been paid $500 on the purchase price. There is an action pending between the parties concerning said contract, and we have no doubt that a court of law has jurisdiction to grant the parties adequate relief.
The decree of the court below is reversed, and this suit is dismissed, but neither is allowed costs or disbursements in this court or in the court below.
Reversed: Suit Dismissed: Rehearing Denied.