Knott v. Stephens

| Multnomah Cty. Cir. Ct., O.R. | Nov 15, 1870

Upton, J.

This case presents several difficult and purplexing questions. It is in many respects similar to cases where specific performance has been decreed; and yet it is very difficult, if not impossible, to come to the conclusion that the plaintiff is in a position to demand equitable relief. After a careful examination of the case I am constrained to say that I think there has never been a time since the making of the contract that it was clearly and unquestionably the duty of the defendant to execute a deed of the premises in question.

I shall not now undertake to pass upon the construction or effect of sections 1,069 to 1,074 of the statute relating to the estates of deceased persons. The circumstance that no steps were taken to administer upon the estate of Long, deceased, leaves an uncertainty in regard, to the assignment to. which it will be necessary to allude; an uncertainty which I think sufficient to render it doubtful wdiether it was safe for tbe defendant to transfer tbe entire premises to tbe plaintiff. It is said tbe defendant knew the law and was bound to take notice of it at his peril. But if we assume (what the courts of this state have not yet decided), that the true construction of the statute is, that a surviving partner may at private sale transfer real estate or an interest in real estate purchased for partnership purposes, without an order of tbe probate court, and without giving the bond provided in the sections above mentioned,; yet there is a question of fact included in the proposition. It is not shown that the defendant had any reason to suppose the land, was intended for partnership purposes, or that any assurance or even notice had been given him. that such was the case or that Foster had power to act for the heirs or representatives of Long. Nor does it appear now that there is certainty in regard to the land being purchased for partnership purposes, or in regard to Foster’s having power to sell.

In this proceeding we must look upon the bond, not merely as an obligation to pay a given sum of money, but as an agreement for the sale of land; otherwise specific performance could not be decreed under any circumstances, but the plaintiff would be driven to his action to recover the money. The evidence sb ows that the condition of the bond liad not been broken by the defendant when the assignment was made. It was not simply a chose in action to be transferred as personal property, but the object of the assignment was to transfer an interest in land.

If it should be decided in this case that the land was bargained for or held as partnership property, the heirs of Long, not being parties to this proceeding, would not 1 bo barred by the decree in this case from showing hereafter that it was not so held, or from showing that their interest was not subject to be transferred by the surviving partner, under this statute or at common law. The evidence that the land was bargained for or held for partnership purposes, is meager and far from conclusive. It is not shown that that point is or can be rendered certain, except by a judgment or decree,

Unquestionably tbe plaintiff is not entitled to a decree for specific performance, unless at tbe time of tbe demand, it was tbe duty of tbe defendant to execute to tbe plaintiff a deed of tbe entire premises as demanded; nor do I tbink tbat fair dealing would have required tbe defendant to convey unless be bad reasonable grounds of certainty tbat be was dealing with the real parties in interest; and I do not tbink tbat a court ought to enforce specific performance, if tbat would place upon tbe defendant an unreasonable risk.

If tbe representatives of Long were parties in this proceeding, tbe question of fact might be finally determined in this suit, and tbat source of uncertainty would thus be removed. But as tbe case now stands, tbe sufficiency of tbe assignment must remain an open question, because tbe heirs of Long are not parties to this suit.

It appears to me tbat this is not a mere question of practice as to tbe non-joinder of parties; but a failure to establish one of tbe material facts upon which tbe plaintiff founds bis claim to equitable relief. Tbat is, a failure to show with tbat degree of certainty which equity requires, before decreeing specific performance, tbat tbe parcel of land was purchased and held for partnership purposes.

It appears tbat no attempt was made to pay tbe purchase price and obtain a deed, until a considerable change bad occurred in tbe value of tbe property, and tbe defendant bad made improvements of some value. This has been held a sufficient ground for refusing relief. (Story’s Eq. Jr., ss. 771, 776.)

I do not feel called upon to decide tbe disputed question of fact, as to whether nr not Foster expressly abandoned tbe idea of obtaining tbe land before making tbe assignment.

Upon tbe other grounds above stated, I think it would not be proper to decree specific performance, and tbat tbe bill should be dismissed.