Mays v. Robert Mays Estate Co.

McBRIDE, O. J. 1,2. The respondent moves to dismiss this appeal for the alleged reason that the undertaking is insufficient. The undertaking is in the usual form, except that the surety therein does not describe herself as “surety,” and the document is not signed by the principal. We do not think the objection is well taken. In O’Connor v. Towey, 70 Or. 399 (140 Pac. 625), this court, speaking through Mr. Justice McNary, held that it was not necessary for the principal to sign the undertaking. The undertaking recites the fact that the plaintiff has appealed from the decree, and covenants with the defendant that in consideration of such appeal the defendant will pay all damages, costs and disbursements which may be awarded against him on appeal. We are of the opinion this sufficiently indicates that the person signing the undertaking does so as surety for the plaintiff, and that the document is not subject to the objection urged. The motion to dismiss is denied. Motion Denied. Department 2. This is a suit brought by the plaintiff against the defendant, Robert Mays Estate Company, a corporation, to compel the defendant to deed over to the plaintiff a certain 80-acre ■ tract of land situated in Lane County, Oregon. It seems that plaintiff was a younger brother of Robert Mays, deceased. In 1891 the plaintiff had contracted with one R. P. Allison for the purchase of the 80 acres of land in question, agreeing to pay therefor the sum of $800. He went into possession of the land and paid the interest up to 1898, but seems to have been unable to make any payments on , the principal. About that time Allison demanded the payment of the principal sum and plaintiff, being unable to pay it, appealed to his brother Robert, who then lived in Wascti County, Oregon. Here,, there is a controversy between plaintiff and defendant; plaintiff contending that Mays agreed to loan him $700, with which to complete the purchase of the land, and take the deed from Allison in Robert May’s name to secure the payment of the money, which plaintiff claims he was to have without interest, and that he was to have a deed for the land from Robert Mays whenever he paid said sum of $700. On the contrary, the' defendant claims that Robert Mays refused to make a loan to the plaintiff, but that he agreed to buy the land if it could be bought for $7t)0, and let plaintiff have the use of it for a home. At any rate, it is conceded that Robert Mays paid, or advanced the $700 and that the deed from Allison, with the consent of plaintiff, was made ont to Robert Mays in absolute form; and that the deed was duly recorded in the deed records of Lane County. In 1902, about four years after the deed was executed, Robert Mays died, leaving a widow and heirs. Some years after his death the heirs formed a corporation, which is the defendant herein, and the land in question was conveyed by the heirs to said corporation, which has ever since been the holder of the legal title. After the purchase of the land in 1898 the plaintiff remained in possession of the property, using it as a home, until the death of Robert Mays, and thereafter continued to make it his home, with the consent of the heirs of Robert Mays, up to the year 1909, when plaintiff moved away from the land, and never lived upon it again; however, he continued to retain possession of the premises and rented the property to different parties, and finally, about 1913, leased it to oneJEEunnicutt for a period of eight years. The defendant refused to recognize the validity of these leases and about 1917, commenced a proceeding against Hunnicutt to recover possession of the property.