Merchant Land Co. v. Barbour

130 P. 976 | Or. | 1913

Rehearing

On Petition for Rehearing.

(132 Pae. 710.)

Mr. Justice Bakin

delivered the opinion of the court.

3, 4. The principal ground of the motion for rehearing is that the quitclaim deed from Graham to Merchant reconveyed only Graham’s undivided interest in the land to Merchant, and that defendant’s equity still remains. The error in this contention lies in the fact that Barbour sustains no contractual relations with Merchant. The contract between Barbour and Graham is not signed, by Barbour, and although in a suit by him against Graham on the contract, it might be good under the statute of frauds and bind him to pay half the price of the land, yet it would not make Barbour a party to Graham’s contract.with Merchant, as he had no remedy against Barbour; and Merchant owed him no duty except to convey the property to bim jointly with Graham, upon full payment of the purchase price. The first clause of the contract between Merchant and Graham, which provides that Merchant shall sell and convey to Graham, or such other person as Graham shall direct in writing, relates only to the final consummation of the contract, or some part of it. There is no provision that Merchant shall owe any duty to anyone but Graham, but only to convey to anyone named by Graham who pays the money. ' Barbour, having no contract with Merchant has no claim upon him. Barbour has not agreed with Merchant to purchase nor to pay $90,000. Therefore Merchant had no one to deal with other than Graham; and on March 20, 1894, when Graham quitclaimed to Merchant, he waived the demand provided for in the fifth paragraph of the contract, and terminated and surrendered it. Consequently Barbour could not object unless before that time he had tendered the purchase price of the land. Merchant by contract was under obligation to no one except the one named in writing by Graham upon the payment of the money; and, though the contract by Graham with Barbour might be considered a request to Merchant to convey to Barbour, yet Merchant was not called upon to recognize it until there was a tender of the money, which was not made. For 20 years after the agreement with Graham, and for 10 years after Graham had surrendered his rights, the defendant did nothing to carry out his agreement with Graham. He has not paid a dollar nor made any claim under bis agreement. In fact, be abandoned tbe agreement, and there is no equity in bis favor.

Tbe motion is denied.

Affirmed : Rehearing Denied.

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Lead Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. It will be observed that the writing executed by Graham November 8, 1890, and delivered to the defendant does not purport to be a conveyance of any interest in any land, neither does it convey the impression of having been agreed to by Merchant or of establishing any privity of contract between him and the defendant. At best, that instrument can be construed only as attempting to define contractual relations between Graham and Barbour. It is not pretended in the testimony that the defendant ever paid anything whatever to Merchant or his successor in interest, the plaintiff, on account of the realty in question. As to Graham, it seems from the evidence that the paper of November 8,1890, was designed as a kind of bonus to Barbour for his influence to be used in favor of the former in financing the construction of a railroad in Coos County. Nothing appears to have been accomplished in that direction, as Barbour could not float the railroad bonds, and it is certain he paid no money to Graham. The defendant paid no attention to the property in any way, never saw it, and never exercised any act of ownership over it. Called upon by this suit to declare his interest in the real property, the defendant, by his answer and cross-complaint filed September 6, 1910, for the first time, and that nearly 20 years after the transaction he describes, asserts in terms that he is the equitable owner of one half of .the premises and calls upon the plaintiff to specifically perform a contract to convey to him the legal title thereto.

Decided May 27, 1913.

2. The pleading does not show any privity of estate or of contract with the plaintiff. Granting, however, that he stood in Graham’s shoes as against the plaintiff for one half of the estate, it is incumbent upon him to perform his part of the dependent covenants of the contract before he can invoke judicial aid to enforce performance by the other party. Not having put anything into the land, it is certain he can take nothing out, at least as against the plaintiff. His grievance, if any, must be adjusted with the man with whom he contracted. His pseudo title cannot rise above its source, R. A. Graham. The latter divested himself of his estate by the deed already mentioned, and with it fell the pretensions of ownership in which the defendant may have indulged. In any event, a decree of specific performance rests in the discretion of the court, and it would be a gross abuse of that judicial prerogative to decree a conveyance to one who has never paid a dollar on the land, besides sleeping on his claim for nearly two decades.

The decree of the Circuit Court is affirmed.

Affirmed.