Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-27

Scott V. Smith, ct al, Marion County.
Charles Scott, as assignee of The
Oregon Land Company, an insolvent
corporation, appellant, V. d. NJ.
Smith, HERNIA Smith, Virginia Wat
son, Il. e. Barnett, Robert McGil-
christ, Albert Smith, J. X. Smith,
Cora Smith, Frank Il. Smith, Lois
Jory and j. N. Smith, appellants, and
P. w. Raidabaugh, respondent. APP
peal from the circuit court of Mar
ion county. The Hon. William Gallo
way, judge. Argued and submitted
April 81, 1911. W. H. Holmes, attor-
ney for appellant Charles Scott. Rob-
ert G. Morrow, attorney for appel
liant Virginia Watson. George G.
Bingham, attorney for other appel
lants. w. M. Kaiser and c. L. Nc
Nary attorneys for respondent. Bean,
j. Modified.
This is a suit to foreclose a mort
gage on lots 39 and 40 of Sunnyside
Fruit Farm No. 10, in Marion county,
Oregon. One of the defendants seeks
to have prior mortgage reinstated
and foreclosed, and another asks for
the specific performance of a con-
tract for SALE
On February /, 1892 The Oregon
Land Company, a corporation, pur-
chased from defendant Virginia Wat
son and her husband, James F. Wat
son, farm of 400 acres in Marion
county, Oregon, executing, to secure
part payment thereon, a note and
mortgage for $950O00, due February
l, 1900, with interest at eight per
cent This mortgage, which was duly
recorded, contained in addition to
the usual covenants, the following
stipulation: ut is hereby agreed and
understood that the payment as here
inbefore specified may be made lin
case any part Of the above land is
sold by The Oregon Land Company
by turning over to Virginia Watson
cash or note or notes and mortgage
received from the purchaser to such
an amount per acre as Is agreed to
by both parties, not to exceed an
average on the whole tract of $23.75
per acre. Said note or notes and
mortgage so received from the pur.
chaser to draw eight per cent inter
est per annum, and to be payable on
or before February 1, 1900, and on
receipt of cash or note, or notes and
mortgages as above the land repre-
sented by the same is to be released
from the operation of this mortgage
and The Oregon Land Company is to
receive credit on its note for said
amount" While the note set forth in
the mortgage also provided that pay
ment could be made in accordance
with the conditions stated therein.
The land was afterward divided into
lots of about 10 acres each; various
lots being sold from time to time and
released from the mortgage, a por-
tion thereof at the rate of $18 per
acre, until all the lots except those
in question were so released
On July II, 1895, The Oregon Land
Company, having previously executed
a contract for one lot to defendant
Raidabaugh, upon which certain pay
ments had been made, cancelled the
same, and upon the sale to him OF
another lot, executed new contract
of sale, covering lots 39 and 40 for
the agreed prices of $3596.55, $1S773
Of which was acknowledged in the
contract to have been paid; the bal
ance of $171925 to be paid on differ.
ent dates, partly in advertising ant
partly in cash. In accordance there
with certain payments were made
from time to time, until on December
2, 1908, there remained unpaid the
sum of $4S253 On July 80, 1897, the
Land Company, having become finan
cially involved conveyed lots 80 ant
40 to defendant d. M. Smith, then an(
for sometime previously the com
pany's assistant secretary. Smith
for the purpose of securing a release
of these lots from the mortgages O
defendant Watson, and for no othel
purpose, as he alleges, executed t
the Land Company note and mort
gage for the sum of $3.50 on the two
lots. The note and mortgage wert
never transferred to Virginia Watson
Subsequently d. M. Smith and wife
by quit claim deed, conveyed the lot
to Abe Smith, who together with hi
wife, Martha, conveyed lot 80 by qui
claim deed to e. p. Barnett and A. J
Barnett, his wife, and the last namet
on December 81, 1905, since the com
mencement of this suit, conveyed 10
80 to defendants Robert McGilchris
and Belle McGilchrist.
In March, 1898, The Oregon Ian,
Company made an assignment for tn
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