Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-08

ClllQfen III Jl6 SIdIe, WIFI power W
take them from their parents, so
long as the latter discharge their du-
ties to the best of their ability, and
give them to strangers because such
strangers may be better able to pro-
vide what is already provided
The decree is reversed and one
will be entered here awarding the
custody of the child to the plaintiff.
Miles V. Hemenway, Lane County.
S. w. Miles, appellant, V. V. Hem
enway, respondent Appeal from the
circuit court for Lane county. Hon.
Lawrence T. Harris, Judge. On re-
hearing. H. E. Slattery and F. H.
Greenman for appellant. A. G.
Woodcock for respondent. Per Cur
lam. Reversed.
Per Curiam The plaintiff being in
| the possession of certain real estate
under a conract for the sale thereof
from the defendant to himself, hav-
ing paid a portion of the purchase
price, began this suit to determine
the adverse interest of the defendant
in the land in question. Having
been defeated in the circuit court,
the plaintiff appealed and this court
heretofore affirmed the decision of
the circuit court Miles V. Hemen-
way. = Or. -, iii Pac. 696.
A rehearing having been granted,
we have again examined the ques-
tions involved The facts are stated
in the former opinion.
1t is only necessary at this time to
consider the legal effect of the quit
claim deed and the accompanying
agreement there mentioned, 1t
should be remembered that the plain
tiff found himself unable to meet one
of the installments due upon the con-
tract whereupon he executed quit
claim deed to the defendant for the
tpremises and at the same time as
part of the transaction the parties
1 executed the writing here set out
which for convenience will be called
Exhibit C".
"This agreement, entered into by
and between " Hemenway, party o.
the first part. and S. w. Miles party
of the second part. witnesseth: Tha
whereas. on the 18th day of July
J {. ScAA
tract by the terms of which the frs
party agreed to convey to the part!
of the second part the northeas
quarter of section 80, township 1
} south. range west, Willamette Mer
idian, containing 100 acres more o
! les, and whereas the $1,000 with in
: terest on deferred payments is nov
due and the party of the second par
is unable to make said payments;
"And whereas the party of the sec
I ond part desires an extension of tim
! as follows He desires until Octobe
! 11th, 1909 at 12 o'clock a. M, o
said day in which to make said pay
! ments and in consideration of sal
7 extension of time the party of tn
] second part has executed to the par
! ty of the first part quit-claim dee
I to all his right title and interest i
J said property, which said deed tC
! gether with this contract, is to be de
: posted in the First National Ban
] where the other deed and contract
! deposited and said bank is instructe
I and the parties hereto as follows.
! "That If the said party of the sec
4 ond part fails to make said payments
Z then said original deed and contrac
! together with this contract and deet
4 is to be delivered to the party of tn
7 first part. and that all contracts an
agreements between the parties here
Z to shall be at an end without an
: claim upon the part of either again'
y the other
"In witness whereof, the said pa
= ties have hereto set their hands an
! seals this first day of October, 1870
! v. HEMENWAY, (Seal
Z S. w. MILES. (Seal
! In presence of
7 A. c. WOODCOCK.
= ZELMA EDWARDS"
} We adhere to the principle la
~ down in the former opinion that r
= sponsible parties may voluntari
settle their respective interests ar
estates in land and may dischart
their obligations to each other by
? conveyance of land but, as in a
I others cases, such a conveyance mu
be unconditional and be taken in pa
ment or discharge of subsisting obi
cations.
The question to be determined he
is whether the quit-claim deed al
EXHIBIT c., accompanying the sam
constituted a rescission Of the TO
mer contract for the sale OF Il
premises or whether 1t operated as