Lockhart v. Ferrey

Mr. Justice Burnett delivered the opinion of the court. 1. It will be observed that, while the covenant by the vendors to convey and the covenant by the plaintiff to pay the purchase price are as usual dependent covenants, they are not concurrent, for the contract provides that payment shall be made within a reasonable time after the deposit of the deed. The plaintiff was entitled not only to a conveyance from the vendors in which the wives of the married vendors should join, but he was also entitled to an abstract showing a marketable title to be in the vendors at the time the conveyance was made. 2. A marketable title means one appearing to be such by the record of conveyances or other public memorial. It means that the title must appear of record, and not rest in parol: Knighton v. Smith, 1 Or. 276; Sollins v. Delashmutt, 6 Or. 51; Cooper v. Cooper, 56 N. J. Eq. 48 (38 Atl. 198); Rutherford L. & I. Co. v. Sanntrock (N. J. Ch.) 44 Atl. 938. -The abstract tendered was not sufficient for this purpose, for it traced the legal title only to W. E. Baines, and did not disclose anything divesting him of that title. Under a contract between W. E. Baines and the vendors of the plaintiff for the sale of the property to them, the legal title remained in Baines until he or those representing him made a proper conveyance to the vendors of plaintiff, or until they were otherwise properly divested of the same by apt legal proceedings. The contract between plaintiff and his vendors recites that a payment of $535 was yet to be made on their contract with Baines. To this extent, at least, the legal title of Baines descended to his heirs, and, for all that appears of record as disclosed by the abstract, the successors in [184] interest of W. E. Baines might have foreclosed the equity of plaintiff’s vendors and retained the legal title. Hence, in order to have complied with the provision of the contract in that respect, plaintiff’s vendors should have made some showing • in the abstract tendered indicating that the legal title of W. E. Baines had passed from him or his successors in interest to them. 3. It was proper to make the heirs of W. E. Baines parties defendant in this suit for the specific performance of the agreement in question. The object of the suit is to pass to the plaintiff the legal title to the land in question. The court of equity assumes jurisdiction of the rem, and, the legal title having descended to the heirs of W. E. Baines, they, apparently having an inteest of record in the subject of the suit, were properly joined as defendants. Section 393, L. O. L.; Arkadelphia L. Co. v. Mann, 78 Ark. 414 (94 S. W. 46); Muldon v. Brawner, 57 Fla. 496 (49 South. 124); Rochester v. Anderson, 5 Lit. Sel. Ca. 143; Hopkins v. Baremore, 99 Minn. 413 (109 N. W. 831); Mowbray v. Dieckman, 9 App. Div. 120 (41 N. Y. Supp. 82); Morrow v. Lawrence Univ., 7 Wis. 574; East River Land Co. v. Kindred, 128 App. Div. 146 (112 N. Y. Supp. 540); Slaughter v. Nash, 1 Litt. 322. It appears in the testimony, also, that the heirs of W. E. Baines joined in a deed without their husbands and wives which has already been mentioned as having been included in the tender of the vendors, and, besides this, they, together with their husbands and wives, except the husband of Rose Baines La Torres, made another deed conveying the premises in performance of the contract of their intestate conveying the land to the plaintiff’s vendors, but this deed was not included in the tender to the plaintiff above mentioned. This, together with their disclaimer, would effectually dispose of any claim of title on the part of the heirs of W. E. Baines. [185] 4. It is contended on behalf of the defendant Ophelia Ferrey that she was the owner of her husband’s former interest in the land, and, not being a party to the contract with plaintiff, she cannot be made to perform that agreement. The plaintiff maintains that, although her husband made a deed purporting to convey his interest in the property to her and placed it upon record, otill the deed did not operate to convey any interest in the land to her because it was not delivered. It is not necessary, however, to consider this question. Ophelia Ferrey did join in a deed with her husband conveying the property in question to the plaintiff, and this deed was tendered in performance of the contract in question. Furthermore, it appears in the record as part of the evidence in support of defendants’ case. She thus equipped her husband with all the means of performing his contract with plaintiff so far as she was concerned. The plaintiff’s vendors by this act of Ophelia Ferrey, and the. conveyances from the heirs of W. E. Baines with their wives and husbands, were thus in a situation specifically to perform the contract for the sale of this property. So far as the abstract was concerned, they could have placed these deeds upon record and had the abstract brought down to the date of the tender after paying the taxes mentioned. During the negotiations about the matter, it was agreed that the plaintiff should procure a quitclaim deed from John La Torres, the husband of Eose Baines La Torres, at an expense not exceeding $100, and that the plaintiff’s vendors would assume one-half the expense. The plaintiff did secure that quitclaim deed from La Torres at an expense of $100. 5, 6. We are of the opinion that the plaintiff’s vendors, not having offered full performance of their contract, could not rescind and that plaintiff is entitled to a decree for specific performance, so far as his vendors can perform, although they might not be able to perform in [186] full: Thompson v. Hawley, 16 Or. 251 (19 Pac. 84); Eppstein v. Kuhn, 225 Ill. 115 (80 N. E. 80: 10 L. R. A. (N. S.) 117); Melin v. Woolley, 103 Minn. 498 (115 N. W. 654, 946: 22 L. R. A. (N. S.) 595). . 7. It remains to consider the question of attorney fees provided for in the contract. There is testimony on the part of the plaintiff in the form of opinion evidence to the effect that as much as $1000 would be a reasonable fee for conducting the suit, but it is still for the court to judge what is reasonable; for expert testimony is only illustrative. Consequently, in this, as in all other equitable proceedings, the court will consider the whole situation in determining such a question. Under all the circumstances of the case, without further discussion of this feature, the court will fix as a reasonable attorney fee the sum .of $420; that being 10 per cent on the purchase price. The plaintiff is entitled to an abatement of the purchase price in the sum of $50 for the acquisition of the deed from John La Torres, for the further sum of $30.96 taxes for the year 1905, and for the further sum of $420 as attorney fees. The decree of the court below will be reversed and one entered providing that the deed from E. E. Ferrey, Ophelia Ferrey, his wife, George W. Ferrey, Bertha A. Ferrey, his wife, and H. C. Wright, heretofore tendered by plaintiff and now in evidence in this case, be taken from the files and delivered to the clerk of the circuit court for the plaintiff, leaving here in its place a certified copy thereof; that the defendants, the vendors of plaintiff, within ten days after the filing of the mandate of this court in the circuit court, be required to deposit with the clerk of that court for the plaintiff a deed from the administrator of the estate of W. E. Baines, deceased, to themselves for the premises in question and a deed of conveyance of the real property in dispute to themselves from the heirs of W. E. Baines and their husbands [187] and wives, and that, in default of the deposit of this deed, this decree shall stand and operate as a conveyance of the real property in question from the heirs, of W. E. Baines and their husbands and wives to plaintiff’s vendors for the use and benefit of plaintiff; and that within 20 days after the mandate of this court is filed in the circuit court the plaintiff shall pay into the circuit court for the defendants Emerson E. Ferrey, George W. Ferrey, and Hiram C. Wright the sum of $3,699.04, and shall then receive from the clerk the deeds so deposited, and that, in default of such payment at the time so specified, the plaintiff’s suit be dismissed. Neither party shall recover costs or disbursements from the other in either court, and the cause is remanded to the circuit court for further proceedings in accordance with this opinion. Reversed.