Oregon & Western Colonization Co. v. Strang

COSHOW, J. Defendant Davison demurred to the complaint on the ground that two causes of ac *381 tion are improperly joined in one complaint and on the ground that the complaint does not state facts sufficient to constitute a cause of action against him. At the beginning of the trial defendant Davison also objected to the introduction of any testimony because the complaint did not state a cause of action against him. The same question was raised in other ways. At the argument in this court defendant Davison waived all assignments of error, except the one based on the second cause of action. It is urged here that inasmuch as defendant Davison did not sign the contract for the sale of the land he is not personally bound to pay the taxes. He claims that his promise to pay the taxes was within the statute of frauds because it was an undertaking to pay the debt of another person and, therefore, to be valid must be in writing. Plaintiff claims that defendant Davison, having accepted the assignment of the contract between it and defendant Strang and that contract having- provided that vendee Strang should pay the taxes, is bound thereby; he cannot accept the benefits of said contract without also becoming liable for the obligations. Plaintiff also claims that the covenant to pay the taxes is a covenant which runs with the land; that defendant Davison having accepted the assignment of contract to purchase said land steps in the place and stead of defendant Strang and is liable to plaintiff to the same extent as his assignor Strang was and is. "We think that plaintiff’s positions are correct. While the authorities are not uniform we believe that both in reason and by weight of the authorities defendant Davison became personally liable for the payment of the taxes when he accepted an assignment of the contract, signed the notes given by his assignor Strang to plaintiff and entered into the *382 possession of the land: Corvallis & Alsea R. R. Co. v. Portland E. & E. Ry. Co., 84 Or. 524, 534 (163 Pac. 1173); 27 R. C. L. 567,-§§ 308, 309; Windle v. Hughes, 40 Or. 1, 5 (65 Pac. 1058). It must be remembered in this connection that defendant Davison assumed and agreed to pay the debt owing by the defendant Strang to plaintiff. By analogy the position of defendant Davison is similar to that of a purchaser of land under mortgage who agrees to assume and pay the mortgage debt. Such agreement binds the mortgagor to all the burdens contained in the mortgage itself: Knighton v. Chamberlin, 84 Or. 153, 159 (164 Pac. 703). It is our opinion that the covenant to pay the taxes, which is a part of the contract under which defendant Davison was in possession of the land and enjoyed the benefits thereof, runs with the land: 15 C. J. 1253, § 71. In this state the land is assessed and taxes levied against it may be collected although the owner thereof may not be named: Or. L., § 4268. The notes given by the defendants constitute independent contracts and plaintiff could sue on one or all of them without tendering a deed: Hawley v. Bingham, 6 Or. 76. By the terms of the contract, the notes must be paid and other covenants in the contract performed by defendants before they or either of them is entitled to a deed. Plaintiff had the option of suing on the notes as they came due and were not paid according to the terms of the contract. Defendants have no right to select for plaintiff the remedy or the course of procedure where it has more than one open to it under the law: Walker v. Hewitt, 109 Or. 366, 377 (220 Pac. 147, 35 A. L. R. 100). Since we hold that defendant Davison is personally liable for the taxes it follows that the order of the court overruling the demurrer was correct. *383 Defendant Davison’s contention that plaintiff had no authority to pay the taxes and collect the amount so paid from the vendee or his assignee is not well taken. As vendor under contract of sale plaintiff holds the title to the land as security for the purchase price. It was necessary for plaintiff to pay the taxes in order to preserve its security. The contract under which Davison has had the benefit and enjoyment of the land requires him to pay the taxes before they become delinquent. That contract also authorizes plaintiff to pay said taxes, if not paid by defendants, and to maintain an action at law to collect the amount so paid by it. Finding no error in the record the judgment is affirmed. Affirmed. Bean, J., concurs in the result.