Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-11

DAILY CAPITAL
in December entered into a contract
with. plaintiff to install a hot water
boiler and fixtures, including g
bath tub and water closet, all oi
which was completed in that month
except the connections between the
boiler and the heating coil in the
stove which were left unplaced until
February 8, 1909 for the alleged rea.
son that 1t was desirable to have the
kitchen plastered before the connec.
tions were made. At the latter date
the connections were finally made
the work consuming about five hours
A lien was filed by plaintiff on March
30, 1909.
Cone failed to make any payments
after December, 1908, and, after be,
ing frequently urged to pay the bal.
ance due and threatened with evic-
ton from the premises, he finally
agreed to surrender the premises
and to pay rent as a tenant. There.
upon he endorsed upon the contract
of purchase, which he had, the fol
lowing assignment: Portland, Ore
gon, July 10, 1909. For value
hereby assign and set over all my
right, title and interest in and to the
within contract. Ralph R. Cone"
He defaulted in the payment of the
agreed rent and was finally evicted
by legal proceedings. Other facts
appear in the opinion. Plaintiff had
a decree and defendant Bingham ap.
peals.
Mcbride, j.: We are satisfied from
the evidence that neither appellant
nor any one authorized to act for
her had any knowledge that the wa
ter system constructed by plaintiff
was being placed in the building un-
til long after it had been installed
and the authorities are clear that
vendee of real property under a
contract of sale of the character OF
the one at bar cannot cucumber II
without the consent of the actual
owner: Belknap " Condor, "a
Utah, 213; Rossi v. Mac Kellar, 13
N Y. Supp. S27.
The next question for considera-
tion is whether at the commencement
of this suit there remand in Cone or
in Mrs, Bingham, by Cones assign
ment any equitable interest of Cone
that could be the subject of decree
of foreclosure. There is no question
but that the legal title to the prop
erty remained in Mrs. Bingham, and
the only right that Cone ever had in
the property was a right to demand
conveyance upon making the pay
ments required in the contract and
the right to remain in possession so
long as he continued to make the
payments. He had no interest in a
single foot of the soil or single
board in the building, but a right
to demand a conveyance of these
upon compliance with his contract
had he sold what right he had, the
purchaser could only have stepped
into his shoes and by complying with
his contract enabled himself to final
ly demand a deed. The assignment
to Mrs. Bingham under the circum-
stances merely amounted to sur
render of his possession without the
fOrmality of an eviction. He had
forfeited his right and was about to
be turned out and really had nothing
to assign and his attempted assign
ment conveyed nothing because he
had nothing.
A decree ordering his interest to be
sold would simply authorize plaintiff
to sell his imaginary right in for
feited contract, right to demand the
fulfillment of broken and therefore
void agreement.
Adams v, Russell, S5 Ill. 2S4, cited
by counsel is not in point. In that
case King, Dayton & Adams sold a
lot to one Watson, who purchased,
from Russell, lumber, giving his
note therefor, with which he built a
house on the land Subsequently he
defaulted in his payments on the lot
and reconveyed to his grantors, they
agreeing to discharge the note. The
court held that this agreement rem
dered the land liable on the foreclos-
ur of a lien for the lumber which
the note was given to secure. 1t will
be noted in the first place that, in
the case above alluded to, the gran
tors made an absolute deed to the
premises, reserving only a vender's
lien, and that uDOn the recOnVey-