Zeuske v. Zeuske, 124 P. 203

Zeuske v. Zeuske

124 P. 203 | Or. | 1912

Mr. Justice Burnett

delivered the opinion of the Court.

1-3. If it is true, as alleged in the bill, that the decedent had made a contract with his parents, the defendants, for the purchase of the land in question, and in pursuance thereof had taken possession, made valuable improvements of a permanent nature, and paid the full purchase price, the administratrix of the estate would be entitled to continue his possession as his personal representative, under the provisions of Section 1185, L. O. L. Moreover, by the terms of Section 1266, L. O. L., the interest of the deceased in the property by virtue of such contract would be available for the satisfaction of claims against the estate. By analogy drawn from Ladd v. Mills, 44 Or. 224 (75 Pac. 141), the administratrix would be a proper party to the litigation here for the purpose of securing a conveyance from the defendants as provided in the alleged contráct. It is also true that the cause of suit mentioned in the complaint inured to the decedent before his death and was one which survived him in favor of his personal representatives under Section 484, L. O. L., so that, in any event, the administratrix is entitled to maintain this suit. Still further, the minor child of the decedent is the only heir to whom his real property would descend subject to the purposes of administration of his estate, and hence, being interested in the enforcement of the contract alleged in the bill, would have a cause of suit against the defendants. No objections having been made by demurrer to the joinder of the parties plaintiff in the suit, nothing can be predicated in favor of the defendants here on their mere denial that the infant and the administratrix were parties to the action at law.

4. The chief contention here is one of fact, for the principle is thoroughly established by a number of precedents in this State that an oral contract for the sale of land followed by the possession of the purchaser, *52making permanent improvements by him and payment óf the purchase price, may be enforced in equity, and a conveyance compelled on the ground that a refusal of such relief would work a fraud upon the purchaser not capable of complete remedy at law. Barrett v. Schleich, 37 Or. 613 (62 Pac. 792) ; Scott v. Lewis, 40 Or. 37 (66 Pac. 299) ; Sprague v. Jessup, 48 Or. 211 (83 Pac. 145: 84 Pac. 802: 4 L. R. A. [N. S.] 410; 11 Ann. Cas. 58) ; Watts v. Spencer, 51 Or. 263 (94 Pac. 39).

A detailed analysis of the testimony on the question of fact would serve no good purpose as a precedent and would merely incumber the Reports. It is sufficient to say that a careful study of the whole record of the testimony in the equity case and in the law case, all of which is before us in evidence in the suit at bar, convinces us that thé preponderance is strongly in favor of the contentions of the plaintiffs. • In our conclusion, we have at least strong moral sanction in the verdict of the .jury that heard the testimony in the law case and in the decision of the learned jurist who passed upon the same data before us. Under these circumstances, we are not disposed to disturb the conclusion reached on the facts in the trial at law as well as in the hearing at equity.

5. The question of the widow’s dower does not necessarily arise between her and the defendants and in a sense is coram non judice. We cannot, in this proceeding, admeasure that estate or establish her right thereto, for, as said in Butler v. Smith, 20 Or. 131 (25 Pac. 381) : “The right of the widow to dower in no manner interferes with the right of the administrator to the possession and the control of the property of the deceased, both real, and personal, and to receive the rents and profits thereof until the administration is completed or the same has been surrendered to the heirs or devisees by order of the court or judge thereof.”

*53The decree of the circuit court should be modified by omitting all allusion to dower of the widow, but is otherwise affirmed. Modified and Affirmed.