from the evidence that said Ambrose delivered to the said John Beard, in pursuance of the bargain, 3,901 bushels and 14 pounds of wheat. The testimony of J. J. Beard establishes that fact very fully. He testified that he and John Beard were partners in the warehouse business. Says: "We commenced about August 15th. I won't be positive; some time in the forepart of August, 1881." He was then asked this question: "Will you please turn to the warehouse-book for the firm for that year, and state how much wheat was left stored there with the firm by Ambrose Beard in the fall of 1881? Answer. 3,901 bushels and 14 pounds. Q. 11. State who sold that wheat when it was sold, and the prices received. A. The first lot of wheat sold was 229 bushels, for 73 cents per bushel, September 23d. On September 24th he sold 1,000 bushels for 76 cents. I have'nt got the price of the other wheat. December 9th, 500 bushels; October 26th, 765 bushels; December 17th, 1,407 bushels and 14 pounds. I think it was 79 cents; wouldn't be positive. Q. 12. To whom was the money paid for the wheat? A. To John Beard; I gave him an order on himself for it. He was the treasurer." These sales, as I compute them, amount to $3,040.69, which was the product of the crop of wheat Ambrose Beard raised from the entire farm in the year of 1881.

It is claimed by counsel for the respondents that John Beard paid out this money by paying off the interest on the mortgage, the $480, and the expenses of working the place. I think evidence shows that John Beard did pay the $480, though Ambrose claims that he repaid it, or that it was paid out of his money. There is no evidence that John Beard paid any of the expenses of the farm that I have discovered. It is also claimed by said counsel that Ambrose Beard, after the deed was executed to him, continued to occupy the place as before; that John Beard remained in possession and controlled the management. I do not think the evidence shows that. It is true, the parties lived in the same house; but that, with the other buildings upon the claim, and the orchard, were on Mrs. Beard's part. J. J. Beard testifies that Ambrose, after the deed was made, seemed to take the management of affairs; "there was an apparent change in the management and control of the place when the deed was executed."

As I view the matter, there was an intended sale of the property to Ambrose Beard. John Beard had grown old and evidently had not been successful in farming, and some time prior to the summer of 1881 had conceived the idea of going into the warehouse business, and probably thought he would sell to Ambrose and take his pay, for the part that would be coming to him, in wheat; that he would be in the wheat business and could dispose of the wheat at a better advantage. The dealings between the parties were very loose. It would not seem by the answer filed in the suit that they had any definite idea as to what their arrangements were. It was understood between them that the old gentleman owed his son 1,000 bushels of

wheat, or for that amount of wheat, and some money, but they could neither of them give an intelligent idea about it; yet they made the bargain upon that understanding, and the land was deeded to Ambrose. That either of the parties actually intended to defraud the creditors of John Beard, I do not think can be maintained from the facts and circumstances of the case. I have no idea that the creditors were considered or thought of. The debts had been standing then a long time, except the portion for the farming machinery, which was only in process of creation. No effort seems to have been made upon the part of the creditors, Crawford and Brenner, to collect them. It was not a case where a debtor was being pressed for payment, and was compelled to make a shift. The claims were drawing interest at the rate of 1 per cent. a month, and the holders were no doubt content to let them run. The interest at that rate, kept up for seven or eight years, would produce an amount equal to the principal. Said creditors never manifested sufficient in their claims to ascertain, before two years and a half, that the said deed had been made, although it stood · recorded during all that time in the record of deeds in the clerk's office in the town where they lived. They seem to have manifested an entire indifference in regard to the payment of their claims, and they are not entitled to any credit for leniency. The creditor who holds a note against a farmer that is drawing 12 per cent. annual interest does not confer any benefit on the latter by a forbearance of the debt, as a general thing. It will ordinarily be only a matter of time when the interest eats up the farm.

But while the appellants may not have intended to defraud the creditors of John Beard by the transaction, yet there are suspicious circumstances as to the amount of consideration paid, and of the business of the transaction. It does not appear sufficiently certain that John Beard owed Ambrose any wheat, or for any wheat, or any money, at the time the deed was executed; nor is it shown satisfactorily that Ambrose furnished the money that was paid for interest on the said mortgage to Thomas,-the $480 and the $300 paid subsequently. It is a well-established rule of equity that a deed obtained under suspicious or unequitable circumstances, or which is only constructively fraudulent, may be permitted to stand as security for any purpose of reimbursement or indemnity. Boyd v. Dunlap, 1 Johns. Ch. 478. I believe this case comes within the principles of that rule. I think that Ambrose Beard should be repaid for the wheat delivered to his father after the deed was executed, the 3,901 bushels and 14 pounds, after making a reasonable deduction for the use of the premises during the four years he occupied them. According to his own testimony, there must have been raised off the premises in question in the year 1881, of the 3,901 bushels and 14 pounds, about 3,000 bushels. Allowing a third of that for the use of the land, it would amount to 1,000 bushels, which, at 78 cents a bushel, would be $780, leaving due to said Ambrose $2,261.69. The rent for the other three years

subsequent cannot be ascertained with any degree of accuracy. It does not appear what the farm has produced during that time. The product of 1881 is probably no criterion, as the amount of the yield in such cases depends very much on favorable conditions. The $2,261.69 should draw interest, which, at 8 per cent. per annum, would be about $181 a year, which for four years would amount to $724, and added to the principal would make $2,985.69. Four hundred dollars a year rent for the three years would be a safe estimate, I think. That would amount to $1,200, which, taken from the former sum, would leave $1,785.69 due the said Ambrose as a charge upon said land. The decree will therefore be-First, that from the proceeds of the sale of said land, made under the decree of the circuit court, the costs and disbursements of said suit, and the expenses of making said sale be first paid; second, that the said sum of $1,785.69 be next paid therefrom to the said Ambrose Beard; third, that the claim of said Crawford and Brenner be next paid therefrom, if sufficient remains; fourth, that the claim of said Flinn be next paid therefrom, if sufficient remains; and the remainder, if there be any, be paid over to the said Ambrose Beard; that neither party recover costs or disbursements upon the appeal.

The chief justice is of the opinion that the statute conferring upon clerks power to enter a judgment in such a case is unconstitutional and void, and that the maxim, communis error facit jus, applies. Pease v. Peck, 18 How. (U. S.) 597.

(12 Or. 488)

POWELL v. DAYTON, S. & G. R. R. Co.

Filed November 17, 1885.

1. VENDOR AND VENDEE-LEASE WITH CONTRACT TO PURCHASE.

Where property is leased for a specified number of years, at or before the expiration of which the lessee agrees to purchase said premises at a specified price, the vendor, when he tenders a deed at the proper time, and keeps that tender good, will be entitled to recover the contract price.

2. SAME-FAILURE TO MAKE TENDER BEFORE EXPIRATION OF LEASE.

But where the lessor fails to make such tender before the expiration of the lease and the time fixed within which the contract of purchase is to be completed, he cannot afterwards make a tender and claim a performance.

3. SAME-DESTRUCTION OF PROPERTY-EFFECT ON CONTRACT.

Where the property is destroyed before the time fixed for the completion of the contract, the vendor cannot enforce his contract.

Appeal from Yamhill county.

E. C. Bronaugh, for appellant.

James K. Kelly, for respondent.

WALDO, C. J. This is an action brought by the vendor of real estate against the vendee for breach of a written contract to purchase the estate.

1. On the first day of July, 1878, the plaintiff leased the premises to the defendant for the term of five years, at the monthly rental of $55, and the lease contained the further provision, and the defendant

agreed, "to purchase of said Powell, and pay the said Powell, on or before the expiration of the said term of five years, the sum of five thousand five hundred dollars, in United States gold coin, for all the said warehouse property," etc. The plaintiff alleges that he made out and tendered a deed to the defendant on the tenth day of November, 1883, and, assuming thereby to have performed all conditions precedent on his part, claimed the entire purchase price. There is good authority for the position that in an action at law the vendor of real estate may recover the contract price if he shall make out and tender a deed at the proper time, and, it should seem, keep the tender good by bringing the deed into court. 1 Sedg. Dam. 386 et seq.; Curran v. Rogers, 35 Mich. 221. Counsel for plaintiff did not urge the point, however, at the trial, and made no objection to the direction of the court to the jury, to the effect that the loss of the bargain was the measure of damages. The court also directed the jury that the washing away of the warehouse before the time for the performance of the contract had arrived did not affect the plaintiff's right to recover, unless the loss happened through the plaintiff's negligence. These instructions are alleged as error. The defendant's counsel do not seem to have taken the position in the court below that the destruction of the warehouse determined the contract. however, is the position here, and must be considered.

That,

In every contract for the conveyance of property there is an implied condition that the subject-matter of the contract shall be in existence when the time for the performance of the contract arrives. That is the contract, the understanding of the parties. If it has ceased to exist when that time arrives, each party is discharged from his contract,—the vendor from his contract to convey, the vendee from paying the purchase price. The rule: "When property, real or personal, is destroyed by fire, the loss falls on the person who is the owner at the time; and if the owner of the house and land agrees to sell and convey it upon the payment of a certain price which the purchaser agrees to pay, and, before full payment, the house is destroyed by accidental fire, so that the vendor cannot perform the agreement on his part, he cannot recover or retain any part of the purchase money. Wells v. Calnan, 107 Mass. 514; Gould v. Murch, 70 Me. 288; Thompson v. Gould, 20 Pick. 134; Taylor v. Caldwell, 3 Best & S. 826; Appleby v. Myers, L. R. 2 C. P. 651; Dexter v. Norton, 47 N. Y. 62; Brumby v. Smith, 3 Ala. 123, cited by counsel in Appleby v. Myers, above.

Several cases in equity were cited by the plaintiff's counsel to show that the defendants were the equitable owners at the time of the loss. Under the terms of the contract this is very doubtful. But if it were true, it would make no difference here unless such an estate were recognized at law, which it is not.

2. The covenants in the agreement are dependent and concurrent where the act of each party is to be done at the same time. A mere v.8p.no.9-35

readiness to perform at such time is not sufficient, but the plaintiff must aver a tender of performance on his part. Williams v. Healey, 3 Denio, 367; Johnson v. Wygant, 11 Wend. 49; Green v. Reynolds, 2 Johns. 207; Adams v. Williams, 2 Watts & S. 228. The plaintiff has, indeed, made a tender of a deed, but not until long after the time fixed by the parties for the performance of the contract. The breach on the part of the defendant, if any, should have occurred at that time. The plaintiff has not the power to keep the contract open, and to tender a deed months after the first day of July, 1883, and then allege a breach as arising at the time of the tender. This would be to alter the terms of the contract. THOMPSON, J., in Bank of Columbia v. Hagner, 1 Pet. 465.

This point was made on the part of the defendant at the argument, though it seems to have been overlooked at the trial. As it must be fatal if the case comes again before the circuit court, it will be useless to direct a new trial. Judgment reversed

THAYER, J. I concur in the opinion delivered in this case that the respondent cannot recover unless the destruction of the warehouse was occasioned by the act or neglect of the appellant. I believe that it is supported by reason and authority, although I was slow in arriving at that conclusion. As to the question of construction of the contract of May 24, 1878, I am unable to concur in the view the majority of the court have expressed. When the case was argued I was inclined to the opinion that the payment of the purchase price for the premises and the execution of the deed were intended to be concurrent acts; but, upon more mature reflection, I have concluded that the appellant was obligated to pay the purchase money absolutely, at all events, unless the respondent, by some act on his part, prevented it. I am satisfied that the latter is not required to execute the deed until the appellant pays the money. By the terms of the contract the respondent agreed to lease to the appellant the premises for five years, commencing on the first day of July, 1878, in consideration of which the appellant agreed to pay the respondent for the rent and use thereof the sum of $55 per month; and further agreed to purchase them of the respondent, and to pay him. therefor, on or before the expiration of said term, the sum of $5,500. The respondent agreed that upon such payment being made he would make and deliver to the appellant a good and sufficient deed to the premises in fee-simple. In pursuance of that contract the appellant entered upon and enjoyed the use and occupation of the premises during the term of said lease and agreement. It is conceded by the authorities that covenants are to be construed to be either dependent or independent, according to the intention and meaning of the parties and the good sense of the case, and that technical words should give way to such intention. In the note to the somewhat ancient case of Pordage v. Cole, 1 Saund. 320, certain rules are laid down by which such in