Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-24

tended as sale upon cOndltl0nS must
contain either in the body of the in
strument or in another memoranda,
acknowledged by the grantee, the eX-
press provisions the performance of
which authorizes a recOnveyance of
! the premises, since, aside from the
| question of a reformation in conse-
! quence of omission by mistake, the
deed must speak for itself and a con-
dition cannot be engrafted upon a deed
absolute in form by parol evidence.
70 Devlin, Deeds end ed sec. $40.
Based on these considerations the rule
| has been established in equity that
where doubt exists as to whether the
deed evidences a conditional sale or
a mortgage the uncertainty will be
1 resolved in favor of a conveyance de-
| signed as security for the payment
of money. The doctrine thus an
nounced has no application to the case
at bar for it is not pretended that an
agreement, oral or written, was ever
cOnsummated whereby the mines were
to have been recOnveyed to the
grantors.
The cooperative elements relied up
on to reveal an intention to execute
and accept a conveyance by way of
indemnity will be examined in the
order hereinbefore stated The evil
dence shows that in January, 1909
no payments had been made on the
S3,OO0.00 promissory note, though it
was due J. T. Tufts, the managing
agent of the Trust Company demand
ed a partial payment with which Jew
ell and ]. R. Bailey could have COM
piled, but the other makers of the note
were unable to respond. The requests
for settlement became more urgent
as the time elapsed. Tufts threaten
ing to have the mortgage foreclosed
unless the debt was speedily paid.
| Several conferences were had with
| him by Harmon and both Baileys in
an effort to retain an equity in the
mines, the title to which they offered
to convey to the Trust Company if
| they could secure from the latter a
bond for deed covenanting to recon-
yey the premises upon payment of the
mortgage debt, but these offers were
declined Jewell was not then on
| friendly terms with any of the agents
of the Trust Company and never con-
suited with them. His interests, how
ever, were represented by the other
cotenants who reported to him the
results of all their interviews with
Tufts. AS term of court was draw
ing near at which the mortgage coul,l
have been foreclosed thereby incurring
costs of suit, attorneys fees stipulated
for in the note and the possibility Of
deficiency judgment if the property
did not bring enough at a forced sale
TO satisfy the decree, ta prevent which
consequence Harmon, Jewell and ]. r.
Bailey and the wife of each. On Tanu-
airy 6, 1909, Joined in executing deed
of the property to the Trust Company.
G. N. Bailey or his wife did not sign
or acknowledge the conveyance until
January 10th, on which day the deed
was taken to the bank of the Trust
Company for delivery. At that time
the grantors thinking they might, in a
few days, be able to effect a sale of
the mines to party with whom they
had been negotiating. Tufts acceded
to their request and wrote on the back
of the deed Hold until Thursday
Jan. Il, 1900" The expectation Of a
sale not having been realized, the deed
was filed for record the day following
the time so limited whereupon the Sc
cured note was surrendered to its
makers and the mortgage record sat
isfied.
The plaintiffs severally testified
that at the time their deed was exc
cuted the value of the mines was S25,-
10000 or more The evidence shows
that long tunnel had been run, and
many improvements made on the
property which included a fiVe-stamp
mill. The mines had been owned by
the grantors several years, but with
the appliances which they Possessed
all the gold could not be saved, and
for that reason the speculation had
never been profitable.
1t will be remembered that on March
s, 1909, the Trust Company engaged
to sell the property for 100000 Of
which sum only $4,000 was then paid
7. j. Brinkerhoff, who negotiated this
purchase for the Mines Company. tes-
tilted that after the contract had been
effected, Harmon told him the prem
ises could have been secured from
the mortgagors for 100000, which
sworn statement was not denied.
Jewell testified that as much as
S2O,OO0.00 had been expended in devel-
oping the mines, the base ore from
which could not be successfully treat
ed with their mill. On oss-examina-
tion this witness having stated that
he had seen the time he would have
given S20,00000 for the property, was
asked: That was before you knew
as much about it as you do now?" He
replied: Yes, sir. before | knew as
much about mining as l do now @.
You wouldn't buy it now?" A. "Fwo
fools might meet Q. in other words,
buying a mine is a good deal like
buying a gold brick, is it not?" \.
To a certain extent think it is"
These replies made by a man who
had learned wisdom by experience af-
ford the best explanation of the value
of most mines, the worth of which is
whatever sum can be obtained from
such buyer as Jewell describes.
The testimony shows that prior to
the execution of the deed Tufts re-
peatedly stated to the mortgagors who
conversed with him about the matter
that the Trust Company did not desire
the property but needed its money.
His granting an extension of five days
in which to effect a sale Of the mines
after the deed was rendered confirms
his declaration,
G. n. Bailey testified that on Janu-
/ ary 16, 1909, and prior to signing the
| a II