Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-27
Kuratll V. Jackson, Washington
County.

E. l. Kuratli respondent, V. J. w.
Jackson, appellant. Appeal from the
circuit court for Washinton county
The Hon, j. U. Campbell, Judge. Ar
gued and submitted Sept. 21, 1911. S.
| b. Huston, Benton Bowman and (H.
T. Bagley, on brief for respondent
w. G. Hare (Bagley & Hare, on
brieD for appellant. Eakin, C. ].
Reversed.
On July 27, 1908, defendant en-
tered into an agreement with plain
tiff whereby he sold and agreed to
convey to him certain real property
known as the "Chenette Row Build
lngs' in Hillsboro, Oregon, for
$4,000, upon which purchase price
plaintiff paid 500, and defendant exc
cuted to him his receipt therefor in
the following words:
"Hillsboro, Ore, July 27, 1908.
Received of E. |. Kuratli, Twenty
and no-1OO dollars in part payment
on property known as the Chenette
Row Buildings on Main ST. bet. 1st
and End ST., Hillsboro, Ore. for
$4,000 Bal. to be paid when good
title is furnished by Aug. 1st, 1908.
81. w. JACKSON"
At this time the property was oc-
cupied under Jackson by various ten
ants, of whom plaintiff was one. De-
fendant, a married man, was the
owner of the property, subject to a
life estate in part thereof, namely:
the dover estate of Lucinda c, Jack
son, the mother of defendant. On
July 81, plaintiff rendered to defen-
dant the balance of the purchase
price and defendant refused to con-
vey. Plaintiff brings this suit for
specific performance of the contract
and sets up the defect in the title of
the defendant, namely: the dover in
terest of Lucinda G. Jackson, al
legged to be of the value of $500, as
well as the inchoate dover interest
Of defendants wife, Maria Jackson, of
the alleged value of $500; and asks
an abatement of the price equal to
the value of such dover interests.
He deposited with the clerk of the
court the balance of the purchase
price-$29S0
Upon the trial the court rendered
decree for specific performance as
follows: "The clerk of this court is
hereby directed to pay to said ]. w.
Jackson the sum of $1400 and the
said plaintiff is hereby ordered and
directed to make, execute, .acknow-
ledge and deliver to the clerk of this
court, within 20 days from the date
hereof, for delivery to the defendant,
j. W. Jackson, first mortgage upon
the real property herein described,
conditioned as follows: that upon the
death of the said Maria Jackson, or
whenever the said Maria Jackson
shall release and convey to the said
e. /. Kuratli, his heirs or assigns,
her interest In said real property,
the said e. |. Kuratli, will pay to the
said j. W, Jackson the sum of $1420
with interest thereon at the rate of
six per cent per annum, interest pay
able annually, and in the event of the
death of j. w. Jackson. before the
death of Maria Jackson, that the said
&, 1. Kuratli will pay to the estate,
representatives, heirs or assigns of the
said j. W. Jackson, upon the death OF
Maria Jackson, or whenever the said
Maria Jackson shall release and con-
vey to the said e. |. Kuratli, his
heirs or assigns, her interest in said
real property, the said sum of $1420,
less such sum or sums as the said F..
|. Kuratli, his heirs or assigns shall
have previously paid to the said
Maria Jackson as dover in and to
said real property"
Defendant appeals.
Eakin, C. ]. Assuming without de-
Gliding. that the receipt given by Jack
! son was such memorandum of the
= agreement as fultils the requirements
of the statute of frauds, the impor-
tant question is, whether plaintiff is
, entitled to the specific performance
of it in this suit under the facts dis
closed The court adjudged the value
of Lucinda c, Jackson's interest to
be $780, and that Maria Jackson's in
terest to be of the possible value of
, $l42O; and also adjudged that plain
tiff is the owner of the land in fee,
5 and provided that, if Lucinda c,
; Jackson and Maria Jackson refuse to
Join in conveyance, the purchase
: price be abated by the value of Luz
} cinda c. Jackson's dover interest
$3.50; and that the possible value of
/ Maria's interest-S1420-shall be Sc
I cured by mortgage to defendant
= payable to his estate, after the death
5 of both defendant and wife, If Maria
2 survives him, less the amount that
= may have been paid by plaintiff to
T. Maria as her dover, Lucinda c. Jack
( son has right at any time. unaffected
} by this decree, to have her dover in
t the property assigned; and Maria will
= have the same right ii she survives
3 her husband. II her estate should
= hereafter be assigned, the damages
r suffered by plaintiff by reason thereof
can only be assessed after the death
9 of Maria as the value of the use OF
: such interest during the time 1t shall
, have been SO occupied by her or her
e assigns and not, as specified in the
0 mortgage. which seems to contemplate
e payment of money to Maria by
: plaintiff.
= 1t must be conceded that the value
5 of Maria's inchoate dover interest
2 which Is a contingent life estate in
> one-half of the land. cannot possibly
: be equal to one-half of the value OF
: the property. BY any theory of the
l case Jackson is entitled to the present
cash value of his interest, which the
complaint admits is $4,000. However,
the decree OF the lower court gives