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

l this were true why NAu ~ "
when he was near a lawyer and no
tary, make the conveyance? Why de-
Law until they had moved out to his
farm and thus necessitate a useless
trip to Eugene? He may have been
satisfied with the treatment he had
received. up to that time, but 1t re-
mained for him yet to be satisfied that
/ il would continue to the time of his
death.
/ In the tragedy Of King Lear, the
great dramatist portrays the foolish
ness of an old man who in his life
time strips himself of his possessions
and depends on the gratitude of his
children for support in his declining
years. The reports are full of such
tragedies, wherein undutiful children
finding themselves possessed OF a pa
rents means of support, forget the
obligation of filial love and gratitude
and either drive the aged donor from
them or make his life miserable with
them. To the discredit of human ma
| ture such instances are so frequent
as the reverse, and if this be so with
children of the donor, how much more
likely is it to be the case where the
transaction is with strangers.
Black was wise enough to wish tc
protect himself and we do not think
the evidence shows that he ever prom
ised or intended to make a deed, but
that he probably did intend, if at the
close of his life the plaintiffs had not
relaxed their efforts to make him
comfortable, to remember them by a
will and perhaps to leave them all
his property; but this is not the case
which the plaintiffs have presented
by their pleadings.
Where specific performance of an
oral contract to convey land is sought
to be enforced, on the ground Of per-
formance by the vendee, the evidence
Of the terms of the contract should be
clear and satisfactory: SO Cyc $50.
At common law, and in many Of the
states, by statute plaintiffs would not
have been permitted, after the death
of the alleged promiser, to testify as
to the terms of the contract, and,
while the rule has been relaxed in
this state, there are many reasons
why the testimony of interested par
ties, under such circumstances, should
be closely scrutinized. 1t is so easy
for selt-interest to sway even the hon
est mind, so that it will give a diff
ferent meaning to the language used,
or construe rather than repeat actual
conversations, that disinterested tes-
timony is highly desirable nay, al
most indispensable, in cases of this
kind. Our statute requires the Judge,
presiding at jury trials, to instruct
them that evidence of the oral admis-
sion of a party should be viewed with
caution (Sec S6S, L. o. L. and if this
is the rule as to admissions of parties
living and able to explain their Lam
guage and meaning, with how much
greater force should it apply when
the evidence is directed to the alleged
declarations of one whose lips are
sealed in death, and to establish a
contract which the law requires TO
be in writing.
The evidence Of plaintiffs possess
sion is not clear or satisfactory. 1T
is true that Hawkins says he went
into possession and his wife says that
they took perfect possession of the
premises but the evidence indicates
that their possession was that of ten
ants, until final agreement shouIo
be consummated, rather than that of
persons holding as purchasers. They
admit that Black said that he wanted
to retain life esEte for his own
protection, but this would be a poor
protection if plaintiffs had the possess
sion and enjoyment The reasonable
inference which we draw rom the |
statements of these interested wit
nesses is, that Black intended to keen
the property in his own hands so thar
he would be in a position to expeI
plaintiffs from it, in case tbey did
not care for him in a satisfactory
manner; that he expected them to
use and keep the products of the farm
without paying for them. eycept in
the way Of services to himself. thar
ne intended to part with his right of
possession seems almost incredible
10 conclude, we think plaintiffs have
not made a showing sufficient to ms
my us in decreeing a specific ner-
.ormance of this alleged contract.
specific performance can never be de-
handed as an absolute right, but rests
Il the sound discretion of the court
o be granted or denied as the inter
,s's OF justice may seem to require.
10 eye. 5+S and cases there cited.
IN the case at bar we think If in
ne interest OF Justice to leave tba
'laintiffs to pursue their remedy at
a" which is certainly adequate to
compensate them for any services tbav
nay nave rendered or damages thew
'y have suffered in the premises i