Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-10

I Upon the trial the court held thaI
after the sale, there being no speci-
hc performance possible as to the
land. plaintiffs demand became a
mere money demand, not cOgnizable
in a court Of equity, and upon that
ground refused to find upon the prin-
cipal fact--the alleged cOntract-an1
dismissed the suit Plaintiffs appeal
/ Mcbride, J. On behalf of defen-
dants. It is claimed that a suit for
specific performance is purely n
personam, and that the court ac-
duired no Jurisdiction by service If
summons by publication We cannot
assent to this view Of the law. Be
ing to a great extent federal ques-
/ ton, the decisions OF the federal
courts furnish the safest guide in
cases of this character in BOswell's
Lessee v. Otis, 9 How 1886, 94S, Mr.
Justice Mclean says: 1T is immater-
ial whether the proceeding against
the property may be by attachment
or bill in chancery. II must be, sub
stantially, a proceeding in rem. A
bill for the specific execution of a
contract to convey real estate is not
strictly a proceeding in rem, in ordin-
airy cases but where such a proceed
ure is authorized by statute, or pub
lication, without personal service Of
process, it is, substantially, of that
character"
To the same effect are Arndt v,
Griggs, 1874 U. s. 3l6; Adams v Heck
scher, SO Fed. 2S1; Single Y. Scott, So
Fed. j53. For decisions Of the state
courts to the same effect see Seculo-
yich v. Morton, l0l Cal. 679; Robinson
V. Kind, % New. $50; Corson v. Shoe
maker, So MINI. 1856; Burial v. Eames
| > Wis 260. In the latter case the
court says: "A suit for specific per-
formance, like that of foreclosure, is
Of a two-fold character partly in per-
sonam and party in rem. The court
may enforce the contract, either by
operating upon the person to compel
a conveyance, or may pass the title
Of the land by decree"
/ 1t must be conceded that there must
be statutory authority for such a pro-
ceedng and such is the case in this
state. BY Sec. 399 L. 0. l.. service
Of summons by publication is author
lied when the subject of the suit is
real or personal property in this state,
and the defendant has or claims a
/ lien or interest, actual or contingent,
therein or the relief demanded con-
sists wholly or partly in excluding the
defendant from any lien or interest
therein" Sec Ala provides that "a
decree requiring a party to make a
conveyance, transfer release, acquit-
tance, or other like act within a period
therein specified shall, if such party
does not comply Herewith, be deemed
and taken to be equivalent thereto" ="
These sections bring this case with
in the reasoning Of the decisions here
tofore cited A contract to purchase
land would be a hazardous proceed
ing, if the purchaser were required to
search the civilized world and sue
each heir in the place of his resi-
dence, in case Of the vendors death.
before performance, and we cannot
concede that the law requires such
an absurd procedure
Conceding, without deciding, that
the administrators sale was an eouit-
able conversion of the property. we
are not satisfied that plaintiffs have
made case sufficient to Justify a
decree under the Dleadings.
Where the contract rests wholly in
parol and the alleged promiser is
dead, courts should demand clear and
satisfactory proof of the terms of the
agreement, and its strict performance
by the premises. Such cases furnish
abundant opportunity for the perpe-
tration Of those frauds which it was
the object Of the statute to prevent
by requiring the contract to be re-
duced to writing.
The evidence tends to show that de-
ceased needed a home where he could
nave some one to care for him in his
declining years and that he had an
pied to several persons to look after
hm saving that in return for sucb
services he would give them the prop-
erty at his death. One witness lWieh- /
Ne' testiIies in substance: "He said
he mad small tract OF land and
u'dn I have any house on it, and he /
wanted to know If ! would NOT ro,,
the place and let him come and STA,
with us and live with us. If he wouII .
give us the place at his death pro
''o'd II We got along all right &c q /
10 ne furnished the lumber and mur.
D.