Suit by D.H. Hackett and his wife against C.F. Jones and his wife, and Vera Ramsey, for strict foreclosure of a contract of sale covering a city lot. From an adverse decree, Vera Ramsey appeals and plaintiffs cross-appeal.
REVERSED. REHEARING DENIED. *Page 519 This is a suit for strict foreclosure of a contract of sale covering Lot 11, Block 8, Englewood Addition to the city of Salem, in Marion county, Oregon.
Plaintiffs allege that on April 13, 1940, they entered into a written contract with Jack Crook and Vera Crook (now Vera Ramsey) wherein it was agreed to sell the above mentioned property to the Crooks for the sum of $1,384.48, payable in monthly instalments of $15.00 each. It is alleged that, for the past four years, the purchasers have defaulted in the payment of taxes levied against the property aggregating on June 15, 1944, the sum of $128.24, and that they further defaulted in keeping the property insured against loss by fire, thereby causing plaintiffs to spend the sum of $5.60 for this purpose. It is not charged that the purchasers defaulted in making the monthly payments. Plaintiffs allege that there is due $1,084.00, together with interest thereon at 6% per annum from December 1, 1943, until paid. C.F. Jones and his wife were made parties defendant by reason of some interest asserted by them in the property, either as tenants of the vendees or as assignees of their interests — the true relationship being allegedly unknown to the plaintiffs.
Subsequent to the execution of the contract in 1940, the Crooks were divorced and in the property settlement the husband executed a quit claim deed conveying *Page 520 to his wife, now known as Vera Ramsey, his interest in the property. In this deed, dated November 3, 1941, the property was erroneously described as Lot 2, Block 8, Englewood Addition, City of Salem, Marion county, Oregon.
The contract upon which this suit is based is a modification of a contract executed by the same parties on May 16, 1938, relative to the same property. In the original contract the purchase price was stated as $1,650.00, $82.50 being paid at the time of execution thereof and balance in instalments of $15.00 per month. In the modified agreement, the property was erroneously described as in the quit claim deed above mentioned. The error in description, however, is not material, since all parties concerned stipulated on the trial that Lot 11, Block 8, and Lot 2, Block 8, were intended to refer to the same property. Hence, there is no question about the intention of the parties in dealing with the property involved herein.
On December 12, 1938, the defendants Jones went into possession of the property which they assert was under and by virtue of an oral agreement with the Crooks assigning their interests in the contract of sale. The defendant Vera Ramsey — the vendee who acquired the interest of her former husband — contends that the contract of sale was not sold and assigned to the defendants Jones but that the property was rented to them at $15.00 per month.
The circuit court found: (1) That the defendants Jones occupied the premises as "caretakers on behalf of the defendant Vera Ramsey, but have no further interest in said premises"; (2) that "the amounts due plaintiffs on account of said conditional sales contract is the sum of $1,384.48, together with interest thereon *Page 521 at the rate of 6% per annum from April 15, 1940 until paid, plus the sum of $64.20 paid by plaintiffs on account of taxes and insurance"; (3) that said contract obligates the said Vera Ramsey to pay the sum of $46.50 to H.P. Grant, plus the sum of $41.25 to Charles Sanders" (contract provided that the Crooks would pay H.P. Grant principal and interest on note amounting to $46.50, and would pay Charles Sanders $41.25, being one-half of brokerage fees); and (4) "that plaintiffs have collected from defendants Jones the sum of $690.00, which they should be required to refund to said defendants * * *."
Based upon these findings, it was decreed that defendant Vera Ramsey, within a period of 90 days, pay to plaintiffs the sums above specified and, upon default thereof, that her interests in the property be strictly barred and foreclosed. It was further decreed that plaintiffs be held to account to the defendants Jones in the sum of $690.00, representing money paid by them to the plaintiffs.
From this decree, the defendant Ramsey appeals and plaintiffs have cross appealed. Defendants Jones attempted to prosecute a cross appeal but failed to file notice of appeal within the statutory period of time.
We think the record discloses that the defendants Jones occupied the premises merely as tenants. There is no evidence to support the finding that the Joneses were "caretakers". It is true that there was "talk" by them about buying the property from the plaintiffs but the contract was never executed. The plaintiffs, however, were in no position to sell to the defendants Jones while the interests of the Crooks had not been foreclosed. *Page 522
After Mr. and Mrs. Jones went into possession, payments of $15.00 per month were first made to the vendee, Vera Ramsey. Then, upon request of plaintiffs, such payments were made by the Joneses to them. These payments to the vendors were made with the knowledge and, at least, acquiescence of the defendant Ramsey. True, the plaintiffs had no right to demand that such payments be made by defendants Jones to them but, nevertheless, it was so done.
Mr. and Mrs. Jones claim to have purchased the interests of the Crooks in 1938, yet the modified contract of sale was executed by the plaintiffs and the Crooks in 1940. The defendants Jones had knowledge of such contract but did not object thereto nor assert that they were sub-purchasers. Furthermore, as indicative of their true status, they were allowed three months' rental for certain improvements made to the property.
Relative to the 1940 contract, Mrs. Jones thus testified:
"* * * Why, I thought everything was all right, and then I was surprised when along came Mr. Crooks and Mrs. Crooks, and Mr. and Mrs. Hackett one day, and they said they had made the second contract, because they had never said anything to me about making a contract until they had all four came into the house; and when they did I was a little surprised, but I thought, Well, I hadn't been there so long, and I thought, well, if they had made a go of it, why, all right. * * *"
Concerning the same matter, Mr. Jones testified:
"Q. Now, did you see Mrs. Crook after the second contract was made? A. The contract wasn't made on that property whatsoever, so I didn't worry about it. The contract was made on Lot 2, *Page 523 Block 8, and that had nothing to do with me, or didn't bother me whatsoever.
"Q. And that contract didn't affect you? A. It wouldn't have affected me at all because it wasn't on my property. * * *"
The money order receipt introduced in evidence by the Joneses reads as follows:
"Money Order Receipt Sent to Vera Crook Address 1164 E. 10th Ave. Rent of House 655 N. 17th Salem 4/15 to 5/15 — 40."
The monthly payments specified in the contract were equivalent to the reasonable rental value of the property. Mr. and Mrs. Jones received credit for the improvements made. They have not paid anything except rental. There is no reason why plaintiffs should account to them but such payments made by the Joneses should be credited on the purchase price.
No question concerning the sufficiency of the pleadings has been presented here or in the lower court by the parties. Hence we see no reason to discuss it.
The decree is reversed and the cause remanded with directions to determine the amount due under the contract after crediting the payments above stated. If the record is incomplete so that the balance can not be definitely ascertained, additional testimony should be taken. Defendant Ramsey should be allowed 90 days from date of decree fixing the sum due, in which to pay the same, and, upon default thereof, her interests should be decreed to be foreclosed. It should also be decreed *Page 524 that none of the other defendants have any interest in the premises.
Each party will pay his own costs and disbursements here and in the circuit court.
HAY, J., concurs in the result.