12 Or. 301 | Or. | 1885
This appeal is from a decree of the Circuit Court for the county of Umatilla. The respondent commenced a suit in that court against the appellant to enforce the specific
“Articles of agreement entered into this 8th day of April, A. D. 1882, between Stephen Sanford and James Wheelan: Witnesseth, that the said Stephen Sanford has sold, and doth agree, on or before the 22d day of April, A. X). 1882, to convey unto said James Wheelan, or his heirs or assigns, by a good and sufficient warranty deed of release and quit claim, free from all encumbrances, north half of lot 4, in block 1, in the town of Pendleton, Umatilla County, Oregon, upon said James Wheelan’s faithful compliance with the covenants herein contained, by him to be done and performed. And the said James Wheelan doth hereby agree to pay to the said Stephen Sanford the sum of $3,000 in gold coin, the consideration money for said premises, in the manner following: Cash in hand upon the execution of the deed hereinbefore referred to, of the sum of $1,500, and the balance within one year from the date hereof. The said James Wheelan further agrees to pay all taxes and assessments that may be levied or assessed upon said premises during the time he shall hold the same under this agreement, and save the said Stephen Sanford harmless therefrom; and the said Stephen Sanford agrees that the said James Wheelan, complying with the covenants herein contained, to be done and performed by him, shall, from the 22d day of April, 1882, have and hold possession of said premises to use and occupy as his own in a husbandlike manner.
“ In witness whereof the parties hereto have set their hands and seals.
[seal.] ' “S. Sanford.
[seal.] “ James Wheelan.
“Executed in presence of
“Fred. Page Tustin.
“Edgar J. Somheeville.”
It was alleged in his complaint in the suit that on the said 22d day of April, 1882, the time the said conveyance was to be made as provided in said contract, he prepared a deed of warranty, in terms conveying the said half of the said lot to the appellant,
The appellant averred in his answer that the said premises were, at the time of the execution of the said contract, and on the said 22d day of April, encumbered by mortgages of large amount, one of which was in favor of H. J. Vanschuyver & Co., executed by the respondent to said H. J. Vanschuyver & Co., November 18,1880, given to secure payment of a promissory note from the respondent to Said company for the sum of $1,540.66, with interest thereon from date, at the rate of one per cent per month until paid, and for $50 additional as attorney’s fees, in case suit were instituted to collect it; that said note bore date November 17,1880, and was payable in eight months thereafter. Another of said mortgages was executed by the respondent to S. Bothchild, R. Alexander, and Richard Lambert, to secure the payment of three promissory notes from the former to the latter parties for the respective sums following: $314.04, $622.42, and $20*3.99, each bearing date the 25th day of February, 1882, and payable ninety days therefrom, with interest at the rate of ten per cent per annum; and contained a provision for the payment of a reasonable attorney fee in case suit was instituted to collect it; and that both of said mortgages were, at the date of the execution of said contract, and had ever since been, wholly unsatisfied. Other issues were tendered by the answer, but it is unnecessary to notice them.
The respondent, in his reply to said matter in the answer, averred that said appellant had, at the time the contract was executed, actual and personal notice of said encumbrances; that he conferred with the mortgagees, and that they assured him that they would interpose no objection to the said sale, and that each of the encumbrances could, by the decree of the court in the suit, be discharged and paid out of the agreed purchase price, which
The authorities on this subject are very numerous and uniform, except where the remedy has been limited by statute. The remedy of the vendor, however, like that of the vendee, depends upon the peculiar circumstances of the case. A Cv-urt of equity ought not to interfere and compel the acceptance of a deed, and payment of the purchase money, where it would operate as a hardship upon the party, unless in strict conformity with his contract. In the case under consideration the appellant had agreed by the terms of the contract to purchase the half lot of land and pay for it $3,000,. $1,500 thereof upon the execution of the deed, April 22, 1882, and the balance within one year from the date of the contract, April 8, 1882, and the respondent
. Tbe rule in Hinckley v. Smith, 51 N. Y. 21, is the correct one upon tbat subject. But tbe respondent’s counsel claims tbat the appellant was cognizant of tbe fact of tbe encumbrances when be entered into tbe contract. Tbe evidence is conflicting upon tbat subject; but suppose it preponderates in favor of tbe respondent, and tbat be only stipulated to give a deed containing a covenant against encumbrances, that would not relieve him .from tbe obligation to convey a pure title to the property. His agreement to make a deed containing-such a covenant was in effect, an agreement tbat tbe property should be disencumbered. A covenant against encumbrance is an assurance tbat tbe property, at tbe time of tbe ensealing and delivery of tbe deed, is then free therefrom. Tbat character of the covenant is personal, and relates to tbe time of the execution of tbe conveyance, and is immediately broken if any encumbrance exists. Tbe fact' that tbe appellant knew of the existence of tbe mortgages may bave been, as suggested by bis counsel upon the argument, tbe reason and object of the stipulation in tbe agreement, tbat tbe respondent should give a deed free from all encumbrances. There is no pretense tbat the appellant assured the payment of tbe mortgages. The writing contradicts any intention of tbat kind. Tbe respondent’s counsel also claimed upon tbe argument that it did not appear tbat tbe full amount of the debts secured by the mortgages was unpaid, and tbat tbe burden of proof was on tbe appellant to show tbat it had not been paid; but it is enough to say, in answer to that position, that tbe allegation of tbe