Elmore v. Stephens-Russell Co.

Estoppel — Estoppel in Pais — Evidence—Sufficiency. 1. In suit for specific performance of contract to purchase land, evidence held insufficient to support plea of estoppel in pais against defendant to refuse performance. Specific Performance — Right to Remedy. 2. Where plaintiff’s intestate contracted to convey land to defendant, which was chiefly valuable for its timber, which was destroyed by forest fire, no payments having been made on the price, and defendant never having had possession, plaintiff, as administrator, could not have specific performance of the contract. [As to change in value of land as warranting court in refusing specific performance of contract for its sale, see note in Ann. Cas. . 1912C, 559.]

From Linn: William Galloway, Judge. Department 1. This is a suit to compel the specific performance of a contract to purchase land. Plaintiffs are the administrator and the heirs at law of H. B. Moyer, deceased. The substance of the complaint is to the effect that on August 9, 1907, H. B. Moyer and the defendant corporation entered into a written contract as follows: “For and in consideration of the sum of One Dollar ($1.00) to me in hand paid by the Stephens-Russell Company, a corporation, I hereby covenant and agree to sell and convey unto said Stephens-Russell Company all of the S. % of S. E. % of section 31 and S. E. of Sec. 32, T. 14 S., R. 1 East, W. M., containing 240 acres, situated in the county of Linn and State of Oregon, for the sum of Eight Thousand Five Hundred Dollars ($8,500.00) as soon as the title to said property can be perfected- and all liens and encumbrances against same cleared away, and upon same being so cleared away I hereby agree to make, execute, acknowledge and deliver to said Stephens-Russell Company a good and sufficient deed containing general covenants of warranty and convey said property to said Stephens-Russell Company free from encumbrances. “In Witness whereof I have hereunto set my hand and seal this ninth day of August, A. D. 1907. “H. B. Moyer. (Seal) ‘ ‘ The Stephens-Russell Company accepts same upon said terms and conditions. “Dated Portland, Oregon, August 9,1907. “Stephens-Russell Company, “By C. S. Russell, Agent.” That all the conditions of the contract were fully performed by Moyer prior to his death, which occurred on March 11, 1913, and said Moyer was at all times thereafter and until his death ready, able and willing to convey said lands by a good and sufficient deed in all respects complying with the contract to the defendant ; and that plaintiff Hazel Moyer was at all times ready, able and willing to execute tbe deed as the wife of Moyer. The death of Moyer, the appointment of the administrator and other formal facts are recited. It is then averred that on March 29, 1915, plaintiff Elmore as administrator obtained an order of the probate court authorizing and’directing him to execute a deed and to fully comply with the terms of the contract; that such deed was duly executed by all the plaintiffs and tendered to defendant accompanied with the requisite revenue stamps; and that defendant refused to accept the same or to perform its part of the contract, and the prayer is for specific performance. Defendant answered with certain admissions and denials followed by affirmative defenses to the effect that in the interval between the execution of the contract and the death of Moyer, no effort was made by Moyer to free the land from encumbrances nor any steps taken to comply with the contract. It is then alleged that the suit is barred by the statute of limitations; that while a nominal consideration is recited in the contract none was ever paid; that defendant was not entitled to possession of the premises and never had possession of any part thereof; that the lands at the time of the execution of the contract were chiefly valuable for the timber growing thereon and that such timber was the sole inducement for the agreement to purchase; that in the year 1910 a forest fire swept over the land destroying and fire killing the timber thereon, leaving it of very little value, and that thereby plaintiffs are prevented from complying with the contract; that plaintiffs’ title to the land has at all times been insufficient in the following particulars: (a) That the land was a part of a federal grant to the Oregon & California R. R. Company under the terms of an act of Congress which required sales thereof to be limited to actual settlers and not moré than 160 acres to any one person, and for a price not to exceed $2.50 per acre; that in the present instance the land had been purchased by Moyer and another in tracts exceeding 160 acres to the person; and that the conveyance being in violation of the statute did not convey a good title; (b) that the conveyance from the Oregon & California R. R. Company to Moyer reserved a strip of land 100 feet wide to be used by the grantor as a right of way and for other purposes, and the right to all waters needed for operating said railroad, reserving therefrom all mineral lands therein other than coal and iron, and requiring the grantee to erect and maintain upon the boundary line between said lands and the aforementioned right of way a substantial fence sufficient to turn stock, and that such covenants and conditions are still in force and effect; (c) that a part of said land was patented to Lewis Champeau; that later there was a mesne conveyance thereof executed by Lewis Oampeau; that the records contain no conveyance executed in the name of the patentee; and that there is no evidence in the records disclosing the marital status of Louis Campeau. Other minor defects are mentioned and it is then alleged that plaintiffs and their predecessor in interest never possessed a good and sufficient title to the land and were at all times unable to comply with their obligations under the contract. After general denials of the affirmative defenses, the reply pleads estoppel m pais as follows: That the forest fire mentioned in the answer occurred in 1910, and that thereafter, at a time when defendant knew all about the fire' and its effect- upon the property, H. B. Moyer called upon defendant and asked to be relieved from the contract for the reason tliat he then had an opportunity to sell the lands at' a better price than that specified in the contract but that defendant refused his request; that Moyer then offered to execute a deed and comply with the terms of the contract but defendant refused the offer, assigning as its only reason that it was without the necessary funds, but would make payment at a later date; that shortly thereafter Moyer died and later the plaintiff Elmore demanded a settlement and payment of the purchase price and received a similar reply, but nothing was said about the fire. It is then alleged that defendant is estopped from urging the reservations in the conveyance from the Oregon & California E. E. Company for the reason that during the year 1912, H. B. Moyer called upon defendant and asked to be relieved from the contract because he had an opportunity to sell the lands at a better figure than the contract price; but defendant denied the request making no objection to the title, saying that it was without money to make the payment, but would do so later. It is then alleged that at the time when this contract was executed and, as a part of the same transaction, defendant purchased from BE. B. Moyer and paid for other lands which were bought by Moyer from the Oregon & California E. E. Company under like conditions, and the deeds thereto were accepted by defendant without objection. These are substantially the issues. A trial being had, there was a decree for plaintiff from which defendant appeals.