Wilson v. North Powder Milling Co. , 98 Or. 364 ( 1920 )

JOHNS, J.

1. The execution of the notes and mortgages being admitted, the important question here is whether, in obtaining the deed in blank from the Arkells and inserting the name of the plaintiff as grantee therein, Hill was acting for and as the agent of the plaintiff, and whether his acts were ratified and approved by plaintiff. The quitclaim deed executed October 29, 1918, recites that it conveys the premises “subject to all indebtedness against the land.” It is claimed that the acceptance of the deed by Wilson operated to satisfy the Arkell mortgage and extinguish their debt. As to those questions, the burden of proof was upon the Arkells.

On October 28, 1918, Arkell, who then held the record title, gave to H. T. Hill a three-day option to purchase the land, on condition that “the purchaser assume all indebtedness against the land and crop,” and that he should pay $500 down and $500 in ten days. Under this option Hill interested Eodger Eicks and Ezra W. Eicks, known as “Eicks Brothers,” and they advanced the first $500, later paying the other $500. On October 29th, at the instance of Hill,- Arkell and his wife for such consideration executed a quitclaim deed to the land, in which the name of the grantee was left blank. Hill testified as follows, regarding this feature:

“Q. Now what arrangement, if any, did you have with them in regard to inserting the name of the purchaser ?

“Á. I told Arkell at that time, that I didn’t know how that deed was going to go, to both of these boys or one of them, and I didn’t know their first names, and I didn’t know just where the deed was going to go, and I wanted the deed made in blank, and fill it in afterwards.

“Q. And he assented to that?

“A. Yes. * *

“Q. Now, then, did yon afterwards insert in the deed the name of the purchaser?

“A. Some time afterwards I inserted in the name, yes. I don’t know just how long it was afterwards, some few days though. * * I put Mr. Wilson’s name in the deed. # * I recorded it. * *

“Q. You still have the deed?

“A. I think I have. * *

“Q. And did you tell Mr. Wilson that you would put his name in the deed and put it on record?

“A. Well, I think some little time afterwards, I met Mr. Wilson on the street, and I told him I was afraid somebody might attach the land, and I had part of the boys’ money, and for the protection of all of them, I put his name in the deed and filed it.”

Later, Hill drew a contract between Ricks Brothers and the plaintiff, which was signed by the former, but never signed by the plaintiff. Concerning this agreement Hill testified:

“Yes; he said he didn’t want to sign a contract until the matter was finally settled, and Arkell would give possession and everything, and he knew just exactly where he was, and I think he said there was some jangle in regard to the crop or something, and he didn’t want to sign a contract until everything was settled, and he had perfect authority to sign one, and then he said he would have Cochran look over it or something like that, when he got ready.”

After he inserted the name of Wilson as grantee in the deed, Hill took that instrument to the county clerk’s office and filed it for record. After it was recorded it was returned to him. He further testified:

“Q. Now in those conversations, what, if any, arrangement or agreement was made between you and him, whereby you were employed by him to obtain from Arkell the legal title to this land?

“A. I don’t know whether I was ever employed to secure that title for Wilson or not. Wilson said if Arkell would get out of the road, and these young fellows were good workers, he would be willing to give them a chance. That was about the substance of the conversation.”

2. It also appears that Arkell had some pressing creditors, and Hill became uneasy, thinking they might make trouble; that he deemed it advisable to put the property in the name of Wilson to facilitate the deal and avoid complications. It is apparent that it was the original intention of both Arkell and Hill that the deed should be made to Ricks Brothers; that they were the intending purchasers; that they furnished the $1,000; that the only reason why the deed was not made out to them when it was executed was because Hill “didn’t know their first names”; that it was for such reason Arkell assented to executing the deed with the name of the grantee in blank. In other words, at the time the deed was executed, it was the purpose of both Hill and Arkell that the land should be conveyed to Ricks Brothers, and it was to such a conveyance that Arkell gave his consent and authorized Hill to insert their names as grantees. Hill does not claim or testify that in the procuring and execution of the deed he was acting for the plaintiff. The record shows that at that time he was representing Ricks Brothers, and that he inserted plaintiff’s name as grantee on his own motion, without the knowledge of either Arkell or the plaintiff. The plaintiff testifies fully and in detail that Hill was never his agent, and was never authorized to represent him; that the plaintiff had nothing to do with procuring the deed and never saw it; that he never authorized Hill to insert his name as grantee therein; that the first time he knew that this had been'done was when Hill told him about it, after the deed had been filed for record; and that he never accepted, approved, or ratified that instrument. The testimony is conclusive that Hill was not at any. time the plaintiff’s agent, and that the latter’s name was inserted in the deed without his consent; that he never accepted, ratified, or approved the deed.

3. It appears that after a conference between the plaintiff and the defendant milling company there was an agreement, in effect, “that the expenses connected with the sacking of said wheat and the making of said sale amounted to $520.01,” which should be deducted from the proceeds of the sale of the grain; and that the company should pay the plaintiff the balance of $4,861.41. Pursuant to that agreement, the company prepared and mailed from North Powder a check for that amount to the plaintiff, and while the check was in transit Laughlin claimed his bill of $800 for threshing the grain, as a result of which the milling company recalled the check. In other words, if Laughlin had not appeared and pressed his claim for payment when he did, the plaintiff would have received the check and the milling company would have paid him the full amount agreed upon in their mutual settlement.

4. The company now claims that the sacking, hauling and shipping charges totaled $642.61, which amount should be deducted from the proceeds of the sale of the wheat. In the absence of an agreement on his part to pay, it might be questioned whether all of such charges would be a prior claim on the grain, as against plaintiff’s chattel mortgage. Having made a settlement in good faith, the milling company should be bound by it, especially where it was acted upon by one party and relied upon by the other, and is fair and reasonable.

5. Sections 10,230 et seq., Or. L., provide for a thresher’s lien and that — ;

“The lien hereby created shall have priority over all other encumbrances or liens upon such grain, save and except only the lien of laborers for labor performed in heading, harvesting and threshing said crop.”

There is no claim that any such lien was filed by Laughlin. At the time the grain was threshed the chattel mortgage was in full force and effect, and was a valid lien upon the grain. Although there was an agreement between Arkell and Laughlin to the effect that the latter should have his money out of the sale of the grain, there is no evidence that the plaintiff was ever a party to that agreement, or that he is bound by it. •

The decree of the Circuit Court is affirmed.

Affiemed.