Furuset v. Mays

BENSON, J. 1, 2. The entire case for the plaintiff is based upon the theory that the purposes of the trust were entirely concluded when the unsold lots were, by conveyance from the trustee, divided among the associates, and that by reason thereof, neither Rometsch nor Haskell is a necessary party to this litigation. This attitude is contrary to the express admissions of the reply as quoted in our statement of the ease, and is not supported by the evidence. The testimony establishes very clearly that the lots which by mutual consent were divided among the three beneficiaries of the trust were unsalable, and therefore withdrawn from the effect of the previous agreement. As to the lots now in controversy, it was intended that the trust should continue until the prospective purchasers should make their final payments thereon, and the defendant issue the necessary conveyances therefor. Such payments have not been made and the intending purchasers have abandoned their contracts, so that the trust, as to these lots, is as vitally active as upon its inception. It does not require the citation of authorities to sustain the conclusion that Haskell was a necessary party to the suit, and the same may be said as to Rometsch, who was the real party in interest, rather than the plaintiff. But even if they had been brought in, the result must have been the same, since the conditions of the trust are such that the plaintiff and his assignee have [196] no interest in the land, but simply in the net proceeds arising from its sale: Kollock v. Bennett, 53 Or. 395 (100 Pac. 940, 133 Am. St. Rep. 840). The decree is reversed, and one will be entered here, dismissing the suit. Reversed AND Dismissed. McBeide, O. J., and Burnett and Harris, JJ., concur.