Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-22
OREGON SUPREME
COURT DECISIONS
hlngSley '. kreSSley and GreenOugh.
MultnOmah County.

+. IL. hlngsley, respondent, V H.
j. Kressly and Thos. L. Greenough.
appellants Appeal from the circuit
court for Nultnomah county. The
Hon. c. L. Gatenbein. Judge. Argued
and submitted Oct is. 1911. s. C.l
Spencer and W. E. Farrell Wilbur
q Spencer, W. E. Farrell. and VIM. T.
Muir, on brieN for respondent. \.
King Wilson and Roscoe c. Nelson
IA {. Emmons, Wilson & Neal; W.
j. Makelim on briefl for appellants.
Eakin. C. J. Affirmed.
This is a suit TO remove a cloud
from the title to real estate arising
by reason of a written option to pur-
chase real estate given by plaintiff to
deiendant kreSsly. The material
parts OF the writing are as follows:
Witnesseth: That the party Of the
nrst part, for and in consideration of
the sum of two thousand (S2,00O, the
receipt Of which is hereby acknowl-
edged, does give and grant to the
party Of the second part, until April
10, 1903, the sole exclusive and ire
yocable right and privilege of pur-
chasing that certain tract or parcel
Of land situate, lying and being in
the county of Multnomah, state of
Oregon, and more particularly bound
ed and described in that certain
deed from Rosanna Richards, ct al
TO A l.. Mills, recorded in the rec
ords Of deeds of Multnomah county,
state of Oregon, in book 1856. at page
1853, at and for the agreed price of
one hundred and thirty-fve thousand
dollars (Sl35,000 to be paid, if the
said party of the second part shall
elect to purchase hereunder, in the
manner and form as follows, to-wit:
Two thousand dollars (S2 00O) on
the execution of this instrument, the
receipt of which is hereby acknowl-
edged;
Eighteen thousand dollars $1S,OOOl
on or before April To- 1909;
The further sum of ten thousand
dollars ($10,000) payable on or be-
fore July Is, 1909;
The further sum of ten thousand
dollars (S1OOOO) payable on or be-
fore October 10 1909;
The further sum of ten thousand
CS10,000) on or before January 10,
1910;
The further sum of twenty thou
sand dollars ($2O,OOO) on or before
January 10, 1911;
The further sum Of sixty-fve thou
sand dollars (S65,OOO on or before
April 10, 1914
All payments made after April 10,
1909, shall bear six CO. per cent in
terst, payable semi-annually, dating
from April 10 1909, and all payments
Of principal and interest shall be
made at the First National Bank, of
Portland, Oregon
| Upon the payment of fifty thousand
dollars (S50000) on account of prin-
icpal, together with the interest
thereon, then due the party of the
/ first part shall execute, together with
his wife, to the party of the second
part deed of warranty against the
acts of said grantoTs of the prem.
ises above described, and tHo party
of A. second part shall execute tC
the party of the first part a first
mortgage on that portion of the
premises lying between the county
road and Willamette river, securing
the payment Of two promissory notes
one of which shall be for twenty
thousand dollars ($20O0O), due on OF
before January Is, 1911; and the
other for siXty-fve thousand dollars
| (S65,00O). due on or before April 10
1914 both payable at the First Ma
tional Bank of Portland, Oregon, and
bearing six (6) per cent interest
payable semi-annually, which notes
and mortgages shall constitute the
last two payments under the contract
above mentioned.
In case the said party of the Sec
Ond part shall not, on or before April
10, 1909, pay the sum of eighteen
thousand dollars (S1S,OO0) as above
specified, then this agreement shall
F. thereupon become at once null and
void, and the party of the first part
may and shall retain to his own use
and benefit the said sum Of two thou
sand dollars $4,000 and until the
payment of said sum of eighteen
thousand dollars ($1S,000) this con.
tract shall constitute an option, only
to purchase on the part of the party
of the second part
And after the said sum of eight.
cen thousand dollars (S1S,O0O) has
been paid. the party of the seconC
part hereby covenants and agrees tC
purchase said real property upon the
, terms and conditions above men
toned.
1t is further mutually understood
and agreed by and between the par
ties hereto that the party Of the frs
part shall furnish an abstract o
title showing be has a fee simple
title free from all encumbrances eX
cept the right of way Of the North
ern Pacific Railroad company, anC
the county road in and to the abOv,
described premises, at the date o
the execution of the deed above men
toned, to the party of the secont
part.
And if said abstract of title shall
fail to show such fee simple title il
the party Of the first part on the dat
above mentioned. and if said part.
,of the first part shall not within
reasonable time thereafter obtail
such fee simple title in himself, h
I shall return to the party Of the sec
ond part the sum Of two thousan,
dollars $4,000 deposited as afore
said, and this agreement shall there
upon become at once null and void.
| II is further mutually understood
and agreed by and between the par
ties hereto that the party Of the sec
ond part may enter into and hav
possession of the above describe
| premises upon the execution Of thi
agreement and retain possession
| tEnrnnf % lnng as he cOmDlles wit