Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-22

until April 10, when If the $4,000
was not paid then this agreement
shall thereupon become at once null
and void, and the party of the first
part shall retain to his own use and
benefit the said sum of $4,000, and
until the payment of said sum of $751;
600 this contract shall constitute an
option only, to purchase on the part
of the party of the second part. And
after the said sum of $4,000 has been
paid. the party of the second part
hereby covenants and agrees to pur-
chase said real property upon the
terms and conditions above men
toned"
BY the evidence of plaintiff, Green
April IA, at which time Greenough
was notified that the $4,000 must be
paid on the 18th or the option would
lapse; that on the 18th Kressly, by
the direction of Greenough, reported
to plaintiff that they could not meet
the terms of the contract; and that
they would forfeit the $4,000 and drop
the matter Upon these facts there
is no ontroversy. Later on the 18th,
Connell, representing only himself,
saw plaintiff and asked for an exclu-
sive option to sell until the following
Monday, which plaintiff refused, but
told him if he ould find buyer to
bring him around and he would talk
1t over Connell testified to the same
conversation and Said that plaintiff
told him the deal had fallen through,
but that he would give him another
chance; that plaintiff made one or
two propositions for new deal which
he told him he was not in a condition
to consider at that time and would
see him in few days. Thus 1t is
plain that the option expired by it's
own terms on the 18th Of April, and
there was not at any time an agree
ment to sell between plaintiff and
defendants.
There was considerable testimony
INTRODUCED as to subsequent attempts
to renew or reinstate the option on
new conditions, but 1t does not con-
vince us that there was any new
agreement made, but II made It was
not in writing, and therefore, void
under the statute of frauds.
The matter urged by the defend
ants to the effect that plaintiff Was
not able TO perform his part of the
contract, and therefore could not for
felt the agreement Of sale, Is based
upon the theory that the agreement
was an exeeutory contract Of sale. But
1t was not such and could only have
been made by the payment of $4,000
on the 18th of April
As to the suggestion that plaintiff
could not give a title, 1t is admitted
! that defendants had an abstract Of
title on the day of signing the option
| from which they had notice that plain
/ tiff had only bond for a deed At
least It could not have more than this
and an abstract showing the fee sim
pie title in the plaintiff was not due
by the terms Of the option until the
time the deed was to be executed to
/ the defendants, which was January
I1j 1910
As to the possession, the contract
provided that the defendants may
enter into and have possession Of the
: above described premises upon the
execution Of this agreement and re-
tain possession thereof so long as he
complies with the conditions above
mentioned" It does not appear that
defendant entered upon the possession
hereunder, other than that one Of the
defendants unloaded some tools upon
the premises at one point The right
Of possession by defendants, If they
had taken It, was but a mere license
until they performed the terms Of the
contract, and on April Is when they
gave plaintiff notice that they could
not make the first payment, they end.
ed their relation TO the property and
Surrendered their possession II they
had any
The possession Of It's grade ant
track across the premises by tht
United Railways is not involved here
1t is not pleaded and It is aCt sucf
a possession as can defeat plalntlff'l
remedy to quiet title against defen
dants and does not defeat the juris
dictiOn Of the court in this case. II q
was a trespasser on the land or hai
hOUie IlBuL uHueT LHe pldluLllIt lu'
decree in this case does not affect II
and It's possession was only a smal
fraction OF the premises involved
here.
In a suit 10 quiet title, the require
! ment Of the statute (Sec. J1G) tina
the premises shall not be in the ac
tual possession OF another Is that, I
defendant is in possession, plaintiff
has a remdy at law by eIectment AM
that action would determine defen
( dant's right II, however, that rem
I edy IS inadequate to grant the relle
desired, equity will entertain iuris
diction even II plaintiff Is not In pos
I session State ex rel " Warner Val
, / ley Stock Co, 56 Or. 283, 300; /
Ency. Pl. & Pr. 300, 311.
In Alton Marine Fire Ins Co \
Buckmaster, 10 ILL., 2Ol, 2O5, 1t
! stated that The reason why the part
) out Of possession cannot malntai