186 P. 552 | Or. | 1920
On February 15, 1916, the defendants were the owners of four lots with a frontage of one hundred feet, and two small houses in the City of San Diego, California; the plaintiffs were the owners of all of the W. % of the NW. % and the NW. of the NE. 14 and the NE. % of the NW. 14= of Sec. 24, Tp. 17 S., R. 11 W., W. M., containing 160 acres of land, more or less, in Lane County, Oregon. The plaintiffs and defendants exchanged their respective properties. Each valued their property at $6,000. There was a mortgage of $800 on the San Diego property which plaintiffs assumed. As an offset to this mortgage defendants executed to plaintiffs a note and mortgage on the Oregon property for $900 with interest. At the time of the trade all of the parties were in San Diego. Plaintiffs had entered the Oregon land as a pre-emption j had not lived on it for about twenty years, and
‘ ‘ In order to persuade and induce these defendants to make said trade and exchange, the said plaintiffs represented and stated to these defendants that the property of said- plaintiffs, being the above-described property, was located only five and one-half miles from Mapleton, in Lane County, Oregon, by wagon road, and only three and one-half miles by section line; that all of said land was level and tillable except two acres; that there were on said land no big trees except twenty or thirty dead fir or cedar trees; that the river crossed said land at only one place, and that being directly across one forty; that all of said land was low bench or bottom land; that the public highway skirted the said' premises, and that said land was of the reasonable market value of $6,000.
“These defendants allege further that the said Lane County land is ten miles from Mapleton, that there are not to exceed 50 or 60 acres of said land which is level, that the remainder is rough, hilly, precipitous, some of which is inaccessible by reason of its steep and precipitous nature; that practically the whole of said land is heavily timbered with large dead trees, mostly fallen, a part of which timber is what is described as ‘ an old burn’; that the public highway which is 60 feet in width traversed said land in a zigzag manner ; that the river enters and crosses said land at three different points, making thereby much of said land valueless.”
Defendants also allege that the premises were not worth to exceed $1,200.
It appears that defendant Parks advised plaintiff Smith to inspect the land, but instead of so doing he made inquiry in regard to the real property of one Shulte who had recently been in the neighborhood of the land for about a week and once went to the land
The trial court found the San Diego lots were of the fair market value of $2,500. It appears there had been a flood in the locality a short time before the exchange; the lots were about three miles from the business center of the city, with inconvenient street car service; and there was little or no demand for the property except for trade. The trial court fixed the fair market value of the Oregon property at $2,000. We are un
The note and mortgage in the suit were executed in the State of California, and provide as follows:
‘ ‘ Should suit be commenced or an attorney employed to enforce the payment of this note, we agree to pay an additional sum of 10 per cent on principal and accrued interest, as attorney’s fees in such suit.”
The decree of the lower court will he modified by eliminating the attorney’s fee, $115, and affirmed as modified. . Modified.
Motion to Retax Costs.
(186 Pac. 554.)
Respondents file motion to retax costs as allowed by clerk. Motion Denied.
Mr. Fred E. Smith, for tbe motion.
Mr. J. M. Fevers and Mr. G. A. Hardy, contra.
Tbe decree of tbe Circuit Court in tbe above-entitled suit having been reduced upon appeal to this court in the sum of $115, in an opinion rendered January 20, 1920, the clerk properly taxed the costs against the respondents, who now file a motion to retax the costs and- disbursements and allow respondents their costs.
The motion to retax the costs is denied.
Motion Denied.