67 P. 413 | Or. | 1902
delivered the opinion.
This is a suit to require the specific performance of a verbal contract alleged to have been made and entered into by and between Hannah M. Smith, now deceased, and her nephew, the plaintiff herein, whereby, in the latter part of the year 1892, in consideration of labor and services rendered, an accounting-respecting which was then had, she agreed to deed to plaintiff fifty acres of land, being the same described in the complaint. The questions involved are principally of fact, and, the testimony being voluminous, we will be unable to do more than state our deductions in many instances, without an extended discussion of conflicting details.
In 1872 the deceased was the owner of twelve hundred or thirteen hundred acres of land in proximity to Fairview, Multnomah County, Oregon, which she utilized principally as a dairy farm. The plaintiff went upon it in that year, and
He further testifies-that in the latter part of the year 1892, or early in 1893, they had an accounting together, touching all these services; that they “jumped at the amount,” and that she agreed to deed him the land in dispute in settlement
On May 7, 1896, Mrs. Smith wrote to plaintiff as follows:
“Dear Hiram: To get that land matter settled up, you may survey out the fifty acres for yourself, — this to include that notch into Bowman’s farm, and enough besides to make up the fifty acres in a straight line so as not to leave a notch on my land. ’ ’
In pursuance of this letter plaintiff employed a surveyor, and had the land surveyed and platted. Mrs. Smith was made aware of the survey, and expressed herself as satisfied with it, but the execution of the deed was deferred from time to time, and she died without making it. Plaintiff is supported in a manner in his statement touching the agreement of Mrs. Smith to deed him the land through her admissions. Albert Stone, á brother of the plaintiff, says she told him in June prior to her death — she having died in October, 1896 — that she had a bargain with Hiram, and that she had agreed to deed him the piece of land in controversy for services rendered; and Mrs. Redclift, G-. R. Shaw, and Andrew Snover testify to admissions of like character. E. Arneson testifies that Mrs. Smith told him that she intended to make such a conveyance to Stone for his services while he (witness) occupied the place, which was prior
We are not satisfied, after a careful and painstaking survey of the testimony adduced, that the plaintiff has established a sufficient consideration to support the alleged verbal agreement by Mrs. Smith to deed the tract of land in controversy to him; and he must fail, as, without a consideration,' specific performance cannot be enforced. If we accord to plaintiff the
For services from April, 1881, to December, 1883, at $120 per month. .$3,840
From December, 1883, to the alleged settlement, 9 years and 6 months, at $10 per month............................................. 1,140
For taking care of stock 10 days while Bankin was a tenant.......... 75
Value of mules and horses....................................... 350
Aggregating ...............................................$5,405
During all this time plaintiff had a living for himself and family, which he says was worth from $200 to $300 per year. Placed at $300, which is probably not unreasonable, for twelve years and two months, would amount to $3,650, which, being deducted from the $5,405, leaves a balance in plaintiff’s favor of $1,755. So that, reduced to its final result, this sum would represent the consideration. But plaintiff names no sum as the result of their accounting. He says that they “jumped at the amount,’’ as they had always done, and Mrs. Smith, to compensate him, agreed to deed the land. The only prior settlement alluded to is the one made about April 12, 1880, when she conveyed to him the one hundred and sixty acres at Mount Scott, but it is doubtful whether this was a sale to satisfy a prior obligation, for the plaintiff says “she might have given it to me; yes. ’ ’ He says, however, she owed him for work on the place and looking after the farm, but when asked how much she owed him, he was unable to say, and stated further that neither one was very particular, or kept things very close, as it pertained to business matters between them. On July 2 following she conveyed to him a tract of sixty acres adjoining her land south of the railroad on the east, upon which plaintiff and wife have been making their home. This he redeeded to her, and she at once conveyed the same to his wife, with twelve acres added. This was a gift outright, without other consideration to support the transfer. Now, again, on January 21, 1891, Mrs. Smith conveyed to plaintiff eighty-two acres of land, being the tract lying in the bottom, — scarcely two years prior to the alleged settlement. This was first intended for his son, but, he not being of age, plaintiff prevailed upon her to
Two years later comes the alleged settlement, whereby it is stated that she agreed to deed plaintiff the fifty-acre tract in question in settlement of a prior indebtedness. There was an arrangement between them whereby he was to have the use of the meadow. This is highly probable from the fact that Mrs. Smith reserved the land south of the railroad from the lease to Thomas, and that plaintiff leased to Thomas his land in the bottom for the same length of time at a nominal rental. But whatever possession plaintiff, obtained of the meadow at that time was subsequently, about October 1, 1893, surrendered to Thomas, who has had possession ever since, exercising possessory acts, open and notorious, without protest from the plaintiff. There was never any segregation of the fifty-acre tract, and possession taken of it by the plaintiff. This could not very well have been the case, as the survey was not made until more than three years later, and he does not claim to have entered into exclusive possession of the remaining lands south of the railroad. There was some talk of an exchange of lands between Mrs. Smith and plaintiff,' and there is a controversy whether the exchange involved the fifty-acre tract or the eighty-six acres lying between it and the railroad. But, be this as it may, it is fairly shown that the plaintiff’s first claim, as it respects the letter directing a survey of the land in question, was not compatible with the idea of an agreement by Mrs. Smith to deed it to him in payment of a former obligation arising from a settlement. Plaintiff went to Mr. Milton Smith,