Caveny v. Asheim

202 Or. 195 (1954)

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Nature of the Case

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Facts

A contract of sale was made on August 18, 1948. It was an agreement for the sale and purchase of residential property. Caveny (P) was the purchaser. P went into immediate possession, notwithstanding that certain work remained to be done by the seller on the dwelling. Gable Park, Inc. (D), a corporation, was the record owner and seller. Bernard Asheim and William C. Robison (Ds) were copartners doing business as Robison Realty Co., and as realty brokers were agents for Gable Park, Inc. (D), in negotiating and closing the sale of the property to P. Asheim (D) of the partnership was also president of Gable Park, Inc. (D); and another defendant, The Travelers Insurance Company (D), a corporation, was the owner and holder of a note executed by Gable Park, Inc. (D), in favor of the insurance company for the sum of $15,000, payable in monthly installments, and secured by a mortgage which was a first lien upon the property purchased by P. The house was sold for $28,500. P paid $3,000 as earnest money. The house was to be completed as per specifications and to include landscaping. An additional $10,000 was to be paid on or before Sept. 10, 1948. Another $14,500 was to be paid upon acceptance of title and delivery of deed. The balance of $1,000.00 was to be paid upon acceptance by purchaser on completion. A title insurance policy from a reliable company insuring marketable title in the seller is to be furnished the purchaser forthwith at seller's expense * * *. The property was to be conveyed by good and sufficient deed free and clear of all liens and encumbrances to date except zoning ordinances, building and use restrictions, reservations in Federal patents, easements of record, and no exceptions. D covenanted to deliver a marketable title free and clear of all liens and encumbrances. All but the $1,000 was paid by P. Gable Park, Inc. (D) failed to secure a release of the mortgage lien of the insurance company or deliver P a deed. P sued for specific performance on October 24, 1952. P also sought to have Robison and Asheim (Ds) declared to be trustees for the sums of the purchase price which were paid which should have been applied by Ds to the extinguishment of the mortgage lien. The court found for P. It directed specific performance of the contract and delivery of a deed. P was required to pay $800 into court for payment by the clerk to Asheim, Robison, and Gable Park, Inc. (Ds), upon receipt by the clerk of a satisfaction of the insurance company's mortgage. On July 21, 1953, the court made an amended decree declaring that Asheim, Robison, and Gable Park, Inc. (Ds) were trustees of the money received from P for the purpose of paying the insurance company. On July 21, 1953, the court made an amended decree declaring that Asheim, Robison, and Gable Park, Inc. (Ds) were trustees of the money received from P for the purpose of paying the insurance company. Ds appealed. Thereafter, the court entered a further or third amending decree. It held that the trust monies held by Ds to be $ 11,856.04. This was the amount due on the insurance company's mortgage. P also got a personal judgment against Ds in the same amount. All the subsequent decrees were entered without notice to Ds. On November 18, 1953, Ds appealed the subsequent decrees. Ds filed a writ of mandamus to vacate the decree dated September 18, 1953, and to quash all writs of execution issued thereunder.