Bogard v. Barhan

Opinion by Mr. Chief Justice Moore.

In the former opinion in this cause it was determined that the description set forth in the contract, if properly delineated in the complaint, was sufficient to authorize the admission of parol testimony to identify the premises. Bogard v. Barhan, 52 Or. 121 ( 96 Pac. 673 .) From a reexamination of the question so involved, we are satisfied that the conclusion correctly states the law applicable thereto. Burns v. Witter, 108 Pac. 129 .

. 1. Several objections are now urged against the sufficiency of the contract that were not entertained at the prior trial. These matters will be considered in the order in which they occur in the memorandum. Thus it is insisted that the specification, “the brick store building,” *274 does not describe any land, and for that reason an error was committed in decreeing a conveyance of the premises occupied by the structure, or of any real property, for the contract was entire, and the insufficiency of any of its terms necessarily defeats the whole agreement, since the premises to be exchanged by the respective parties were treated by them as indivisible. The doctrine first asserted is untenable; for, as is said by an author, “courts have frequently decided that a conveyance of a building or barn used as a term of description will convey also the land upon which the building or structure may' be erected.” Devlin, Deeds, § 1200. In the section following that to which notice is attracted it is observed: “But only so much of the land as is necessary to the use of the structure will pass by implication by a conveyance of the structure itself,” etc.

2. It will be remembered that, though the memorandum refers to “the brick store building,” etc., the complaint specifically describes the supporting real property, and alleges that only the first story of the building is involved in this suit. It is maintained that such discrepancy is so great as to defeat a specific performance of this part of the contract in decreeing which an error was committed. Though an agreement erroneously describes a larger estate or a greater area than the vendor owned or intended to convey, the purchaser will be compelled to accept such interest or superficies when he had knowledge thereof and consented that only the title or extent of land then actually possessed by the vendor was the subject of their consummated negotiations. Pomeroy, Cont. (2 ed.) § 346. The rule thus announced is equitable, and must be similarly applicable to each party who seeks specifically to enforce a contract to convey a building; and, as the complaint alleges and the evidence shows that only the lower story of the structure mentioned and the real property covered thereby were intended to be conveyed, no error was committed as. alleged.

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3. It is contended that the contract in question does not indicate when the sum of $100 in cash referred to in the memorandum was to have been paid, or the note for $800 given, or specify what year on “September 30th” thereof Bogard was to surrender the possession of his residence property, under which circumstances the writing is too indefinite, and the court erred in its decree. Considering these matters in their reverse order, the rule is well settled that, when a month is specified in a written instrument which omits to state the year intended, it will be inferred, in the absence of any implication to the contrary, that it is the designated month then next ensuing. 5 Words & Phrases, 4575.

4. It will be recalled that the complaint states that the ' $100 in cash was to have been paid “when the said parties should exchange deeds,” and it is fairly to be inferred from such averment that it was intended the note for $800 should have been given at the same time.

5. Although no testimony was offered on this subject, since the contract was received in evidence showing that it was executed June 16, 1906, we think the note was to have been dated the same as the agreement. This conclusion seems to be supported by the averments of the answer, which state that by the modified agreement the $400 referred to therein was to have been paid “on or before four years from date”; that is, from June 16, 1906.

6. In any event, however, the $100 mentioned was to have been paid in cash within a reasonable time, which has certainly elapsed since the subscription of the contract. At the trial testimony was given respecting the alleged modification of the agreement, but we think it satisfactorily appears that the only change made after the contract was signed related to the abstracts of the respective parties, which clause, by mutual consent, was mutilated by drawing a line through it, but is herein-before set out in full, though in parenthesis.

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7. There is no merit in the allegation- of the answer that the memorandum in question is void for failure to express a consideration, as required by enactment. Section 797, B. & C. Comp. It will be kept in mind that the agreement specified that the land of the respective parties was to have been exchanged.. This statement shows a legal quid pro quo, and hence asserts a sufficient inducement to satisfy the requirement of the statute.

8. As possession of a part of the premises was not to have delivered until “September 30th,” it is argued that, if the year omitted from the memorandum was intended to be 1906, this suit was commenced prior thereto, and therefore prematurely brought, for which reason an error was committed in rendering the decree. No plea in abatement was interposed or objection urged on the ground now asserted to defeat the maintenance of this suit, and, as the execution of the deeds is the relief sought, such redress could have been granted without a relinquishment of the possession of a part of the land until the time therefor had arrived. We conclude, therefore, that the suit was properly instituted; that the agreement is not void for uncertainty, either as to the description of the premises or the time for the performance of the conditions; and that the parol testimony applies the specification of the memorandum to the particular real property to the ekclusion of all other tracts.

9. The remaining question is whether or not the execution of the deed by A. Barhan to his mother was a scheme adopted to circumvent a specific performance of the agreement herein. That he was indebted to his mother in the sum claimed is evidenced by the promissory notes offered in evidence. We do not think, however, that she was urgently insisting upon the payment of these obligations or the giving of security therefor, and feel satisfied that he executed to her the deed in question, thinking it would bar a recovery herein. His deed was *277 not delivered to his mother, but placed on record, evidently without her knowledge, and, this being so, no title passed thereby: Cravens v. Rossiter, 116 Mo. 338, 344 ( 22 S. W. 736 : 38 Am. St. Rep. 606 , 608). In that case it is said:

“The delivery of the deed to the recorder for the purpose of having it recorded did not amount to a delivery to the defendant, for the recorder was not the agent of defendant, and hence had no authority to accept it. Besides this, he did not undertake to accept it for or in behalf of the defendant. He received it, recorded it, and transmitted it to the grantor. The grantor did not part with his dominion over the deed until after it had been recorded. * * Recording a deed by the grantor, without the grantee’s knowledge or assent, does not of itself operate as a delivery of the deed. 1 Devlin, Deeds, § 290, and cases cited. There was therefore no delivery of this deed until the defendant received notice of its existence, and that was long after the date of the judgment.”

It follows from these considerations that the decree should be affirmed; and it is so ordered. Affirmed.