56 P. 170 | Or. | 1899
delivered the opinion.
This is an action to recover money paid on a contract for the purchase of land. Plaintiff alleges, in substance, that on September 8, 1892, he paid defendant the sum of $600, and agreed to pay him the further sum of $2,600 on or before eight years from that date, in annual installments of $325, in consideration of which the latter executed to him a bond for a deed, whereby he covenanted to convey certain real property in Marion County, by a good and sufficient deed, free from all incumbrances ; and that by defendant’s license he entered into possession of said premises, which he retained until July 31,1894, when he was evicted therefrom by defendant; that, at the time the bond was executed, defendant was not the owner in fee of said premises, nor has he since acquired such an estate therein; that on September 8, 1893, plaintiff rescinded the contract, and demanded of defendant the return of the money so paid thereon, but the latter refused to comply therewith, wherefore plaintiff prayed judgment for the sum of $600 and interest. . The defendant, having denied the material allegations of the complaint, averred that in a suit in the Circuit Court of Marion County against Samuel I. Dodge and others he obtained, on February 14, 1894, a decree perfecting his title to said land ; that thereafter, plaintiff being in default in the payment of an installment due under the contract, he instituted a suit against him in said court, and obtained a decree foreclos
The question presented for consideration by this appeal is whether a vendee, under an executory agreement to purchase real property, can rescind the contract on account of an alleged failure of title, and maintain an action at law for the money paid on account of the purchase, while retaining possession of the premises. It is argued that plaintiff’s notice to defendant of the defect in the