Shebley v. Rose

134 P. 784, 66 Or. 449, 1913 Ore. LEXIS 378

• Court: Oregon Supreme Court
• Decided: September 16, 1913
• Status: Published

Opinion

Opinion by

Mb. Chief Justice McBbide.

1. A perusal of the contract between Bose and Mapes, Kendrick and Shebley shows conclusively that Bose had performed all of his part of the contract as to advances when he paid $350 and procured an option to purchase. He did not agree to advance money to purchase land, but to purchase an option. When that option was purchased, it became the duty of each of the other parties to contribute his share toward the final payment, unless money should be raised by a sale of the property in the meantime. Until money was realized in some way Bose held the rights secured under the option in trust: (1) To repay his own advances; and (2) to divide the overplus equally between himself and his associates.

2. To protect himself and them he advanced the further sum necessary to take up the option and secure the title. This title he held in trust not for the several benefit of each party, but by tbe terms of tbe trust for tbe joint benefit of all. He is not required to sever the liabilities of his associates by receiving from one his one-fourth of the purchase price, but may hold the whole property until all have repaid him his advances. One of the objects of a trust of this character was, no doubt, to prevent the difficulties which would arise from his being required to receive the money due him in separate amounts at different times and from different debtors. Their liability is joint, not several. They are not tenants in common nor joint tenants of the equitable title, but are joint cestuis que trustent, subject to joint liabilities and possessing joint rights to the performance of the trust.

3. This property is mining land, and it is evident, both from the contract and from the testimony, that it was purchased for the purposes of sale. Again, it is stipulated that in case of sale Eose is to be repaid his advances. Under. these circumstances we think a power of sale is implied, and to say that such sale cannot be made until all the cestuis que trustent consent would be to say that any one of them could prevent him indefinitely from collecting his advances. We do not think the parties contemplated any such an absurd thing when they made the contract, and that the trustee has a right to sell for a reasonable price, but that under the circumstances that matter should be subject to the supervision of the court. The price of $11,000, less $1,000 commission, for which the property was contracted appears to us under all the circumstances to have been a fair price at that time; and if that offer still stands, and the plaintiff cannot produce a buyer offering more, the trustee should be permitted to accept it. In that case the plaintiff should be allowed sixty days after the mandate of this court reaches the lower court in which to produce a purchaser willing and able to pay more.

The claim that defendant had denied plaintiff’s interest in the property has some plausibility; but a perusal of his testimony indicates that the letter was simply the writer’s opinion of the legal effect of the contract, and there is nothing in it or in the testimony to indicate that he will attempt to defraud the plaintiff in any way. He seems to be the only man who has put a dollar of cash into the investment, and he cannot be blamed for being desirous of getting his money out of it.

However, as the rights of the parties have here been defined and may be known hereafter, the decree of the court will be modified and a decree entered that the defendant holds the land described in trust for himself, this plaintiff, Mapes and Kendrick, jointly, with power to sell the same for the joint benefit of all the parties. Let it be further ordered that no sale will be consummated without twenty days’ notice to each of the parties or a waiver of such notice, and that within that time any party may apply to the Circuit Court in this cause, which shall remain open for the purpose of such application by an appropriate supplemental pleading for a hearing as to the reasonableness of the price to be obtained at such sale; and, further, in case the former offer of $11,000 still stands, that defendant Rose shall be authorized to accept it, provided plaintiff shall not, within sixty days from the entry of the mandate in the Circuit Court, produce a purchaser who will pay a greater sum. Nothing in this opinion is to be construed as denying the right of any of the cestuis que trustent in case the trustee shall arbitrarily or capriciously refuse to apply to the court by an original suit to compel him to sell. Such right is undoubted. Neither party will recover costs in this court nor in the court below.

Modified.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.