Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-13

written agreement. The ground OF
his objection was that the abstract
did not show a marketable title eX-
listing in the grantors at the time the
offer was made; that the unpaid
taxes constituted an incumbrance
uon the property, and that for want
of joinder of the husbands and wives
of the heirs of w. E. Baines in the
deed to the vendors the legal title
remaining in w. E. Baines was not
fully extinguished of record. The
vendors stood upon this tender, de-
clining to make any additional eff
forts in that direction, gave notice
of rescission and withdrew the pa
pers from the bank. The plaintiff
rendered in writing payment of the
purchase price which being refused
he instituted this suit to enforce
specific performance The brothers
and sisters Of W. E. Baines and their
husbands and wives, except John
La Torres, husband of Rose Baines
La Torres, were made parties defen-
dant to the suit and joined in an an
swer disclaiming all right, title or
interest in the land in dispute, alleg-
| ing that they had conveyed the same
to the defendants, E. E. Ferrey, H.
G. Wright and G. W. Ferrey in pur-
suance of the agreement of w. E.
Baines, deceased. From a decree
dismissing his suit plaintiff appeals.
Burnett, j.. 1t will be observed
that while the covenant by the ven
dors to convey and the covenant by
the plaintiff to pay the purchase
price are, as usual dependent cove
nants, 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 VEN
dors 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, A marketable title means one
appearing to be such by the record
OF conveyances or other public mem
orial. 1t means that the title must
appear of record and not rest in
parol. Knighton v. Smith, 1 Or.
276; Collins V. Delashmutt, 6 Or. 81;
Cooper V. Cooper, 3S Atl 1893; Ruth
erford L. & /. Co. " Sanntrock, A
Att. 93S. The abstract rendered was
not sufficient for this purpose, for
1t traced the legal title only to w. E.
Baines and did not disclose anything
divesting him of that title. Under
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 other
wise properly divested of the same
by apt legal proceedings. The con-
tract between plaintiff and his ven
dors recites that payment of $685.
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 interest of w. e. |
Baines might have foreclosed the |
equity of plaintiffs vendors and re-
tanned the legal title. Hence in order
to have complied with the provision
of the contract in that respect plain |
tiff's vendors should have made
some showing in the abstract ten
dered indicating that the legal title
of w. e. Baines had passed from him
or his successors in interest to them.
1t 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 as
sumes jurisdiction of the rem and,
the legal title having descended to
the heirs of w. e. Baines, they, ap-
parently having an interest of record
in the subject of the suit, were prop
erly Joined as defendants. L. o. L.
Sec. 1893; Arkadelphia L. Co. V.
Mann. rs Ark. Ala; Muldon V.
Brawner, 81 Fla. 496; Rochester v.
Anderson, Lit. Sell Ca 143; Hon
kins V. Barremore, SO MINI. 41S;
Mowbray v. Dieckman, 9 N. Y. App.
Div. 1870: Morrow v. Lawrence Univ,
Z Wis 574; Eas Rivert Land Co. v.
Kindred, 112 N. Y. Supp. $40;
Slaughter v Nash. 1 Lift. 322.
1t appears in the testimony also
that the heirs of W. E. Baines Joined
in deed without their husbands and
wives which has already been men
toned as having been included in
the tender of the vendors and be-
sides this they, together with their
husbands and wives, except the hus-
band of Rose Baines La Torres,
made another deed conveying the
premises in performance of the con-
tract Of their intestate conveying the
land to the plaintiffs vendors but
this deed was not included in the
tender to the plaintiff above men
toned, This, together with their
disclaimer, would effectually dis
pose of any claim of title on the part
of the heirs of w. E. Baines.
1t is contended on behalf of the
defendant, ophelia Ferrey, that she
was the owner of her husbands for
mer interest in the land and not be-
ing party to the contract with
plaintiff she cannot be made to per-