Maxwell Land Co. v. Hermiston Bank

139 P. 921 | Or. | 1914

Mr. Justice Eakin

delivered the opinion of the court.

The contract with the reclamation service and the trust deed are both set out in full in the complaint, which contains recitals as to the relations existing between plaintiff and the reclamation service arising out of the contract and deed. The plaintiff is not directly asking a rescission of the contract, probably because it cannot place the reclamation service in statu quo, yet the fact of cancellation of the deed would have the effect of permitting the plaintiff to withdraw from the contract without giving the reclamation service an opportunity to be heard. It is plain from the contract and deed that the submission of plaintiff’s land to the same conditions as those covering the United States land with relation to the water service, and the subjection thereof to the same burdens, was one of the principal considerations for the agreement on the part of the reclamation service. Two principal purposes are apparent in this: (1) That the project may as speedily as possible‘have remuneration in the sale of water for the money expended; (2) the settlement of the land in small tracts, namely, a family on each 40 acres. The latter was the prime object of the reclamation act of Congress: 32 Stat. 388.

The terms of the trust deed and the consideration therefor are provided and fully appear in the contract, and it is not possible to intelligently dispose of the case without construing the terms of the contract to ascertain whether there has been a breach thereof. This cannot be done without the presence of the parties affected by it. It is not a question of whether the trustee is an agent of the government or of the reclamation service. The trust deed cannot be considered alone. It is only a part of the execution of the contract, and thereby the reclamation service is a party to the deed as much as if signed by it, and both have to be considered together. This cannot be done without the presence of the contracting parties.

The grounds alleged for cancellation and breach of the contract are defaults of the reclamation service, and not of the defendant, which is only the holder of the title. Such defaults or breaches cannot he determined in the absence of the party in default. He must have his day in court. Therefore, the Circuit Court did not err in sustaining the demurrer and dismissing the suit.

The decree is affirmed.

Affirmed: Rehearing Denied.

Mr. Chief Justice McBride, Mb. Justice Bean and Mr. Justice McNary concur.