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ance or other instrument in writing, subscribed (purposes intended by plaintiff, was an incumby the party creating, transferring, or declaring brance breaching defendant's agreement. the same, or by his lawful agent, under writ-(Ed. Note. For other cases, see Vendor and ten authority, and executed with such formali- Purchaser, Cent. Dig. $$ 199, 200; Dec. Dig. ties as are required by law."

112.) It is contended on behalf of the plaintiffs in Banc. Appeal from Circuit Court, that defendant authorized Blatt to make the Washington County; J. A, Eakin, Judge. contract with plaintiffs and that defendant Action by B. M. Lombard against M. B. is estopped from denying Blatt's authority. Kies, receiver of the Commercial Bank of The only basis for this claim must have its Vancouver, Wash., to rescind a contract of foundation upon the testimony and state- purchase of land. From a decree for plainments of Blatt which are wholly unreliable. tiff, defendant appeals. Modified.

The decree of the lower court was right, | On June 28, 1912, M. B. Kies, as receiver and is therefore affirmed.

of the Commercial Bank of Vancouver, gave

to F. C. Malpas an option to purchase a tract MOORE, C. J., and McBRIDE, J., concur. l of 476 acres of farm land, the option (omitHARRIS, J., concurs in the result.

ting the description of the land) reading as follows:

“Know all men by these presents that M. B.

Kies, as receiver of the commercial Bank of LOMBARD V. KIES.

Vancouver, hereinafter called party of the first (Supreme Court of Oregon. Feb. 1, 1916.)

part, for and in consideration of the sum of one

thousand dollars ($1,000) to him in hand paid, 1. VENDOR AND PURCHASER 3_OPTION TO does hereby bargain, give, and grant to F. C. PURCHASE REAL ESTATE-CONSTRUCTION.

Malpas, hereinafter called party of the second Plaintiff's option to purchase real estate part, for the period hereinafter provided, the for which he paid $1,000, provided that upon sole, exclusive, and 17

sole, exclusive, and irrevocable right and privdefendant vendor's procuring good title by deed ilege of purchasing that certain described tract or foreclosure of a purchase contract plaintiff or parcel of land, situate in the county of Washshould make the additional payment on the

on the ington, state of Oregon, to wit, ** upon premises of $4,000 and should pay the balance

the terms and at the price hereinafter provided. of the purchase price in certain installments,

It is understood between the parties hereto that including the assumption of a prior mortgage.

the party of the first part has instituted a proUpon payment of the $4,000, a supplemental

ceeding in foreclosure against Paul H. Reimers agreement was entered into whereby plaintiff

and Grace Reimers, his wife, and B. M. Lommight anticipate the contract by paying for any

bard and Caroline S, Lombard, his wife, for the part of the tract which he should specify in foreclosure of a certain contract of purchase writing, at stipulated prices per acre for the

covering the above-described premises, made and different kinds of land, for which defendant was

entered into between the party of the first part to give plaintiff a good and sufficient deed, and said Paul E. Reimers and Grace Reimers, Held, that the agreement was a unilateral option This wife, on March 16, 1911, which foreclosure under which plaintiff, upon complying with its

suit is pending in the circuit court of Oregon terms, was entitled to a deed to such portion

for Washington county. The party of the first of the land as he might select, free from such

part agrees to carry on and prosecute said proprior mortgage.

ceeding to a successful final determination and (Ed. Note.-For other cases, see Vendor and

to procure title to all of said described premPurchaser, Cent. Dig. $ 3; Dec. Dig. 3.)

ises in himself free from the claims of any and

all of said defendants. In case the party of 2. VENDOR AND PURCHASER m112-OPTION the first part shall procure a deed to said prem

TO PURCHASE LAND-PARTIAL EXERCISE ises he shall immediately notify party of the SUPPLEMENTAL AGREEMENT - BREACH - RE- second part thereof in writing, and the party BCISSION,

of the second part shall, within 15 days after Where plaintiff orally demanded a portion such notification, make an additional payment of the tract under the terms of the supplemental upon said premises in the sum of $4,000, and agreement, but did not specify the land in writ- shall pay the balance of the purchase price of ing, he could not have rescission of the entire said premises as follows: One-third thereof one contract on the ground that defendant refused year from the date of acquiring deed; oneto convey free from the prior lien, since, having third thereof one year later; one-third thereof himself failed to comply with the terms of the one year thereafter: Provided, however, that agreement, he cannot complain of defendant's the payment falling due in the year in which it default.

becomes necessary to pay Balfour, Guthrie & (Ed. Note.-For other cases, see Vendor and

Co.'s mortgage shall not be then made, but shall Purchaser, Cent. Dig. 88 199, 200; Dec. Dig.

be made one year after the date of the last pay112.)

ment as above provided : Provided said mort.

gage is paid by the party of the second part 3. VENDOR AND PURCHASER 112 - OPTION when due. In case deed is not procured, but

TO PURCHASE LAND - Good TITLE – NEW the party of the first part procures title in said HIGHWAY-INCUMBRANCE-PURCHASE.

foreclosure proceedings by strict foreclosure, he Where the parcel plaintiff desired to pur- shall give notice in writing to the party of the chase under such supplemental agreernent was a second part of the fact of procuring title, and 40-acre tract containing a dwelling which plain the said payment of $4,000 shall be made withtiff desired for a summer residence, the location in fifteen days thereafter, and subsequent payof a new highway through the tract within 50 ments shall be made thereafter as above profeet of the dwelling after the option contract vided. The total purchase price shall be the had been made and partially carried out by amount which shall be decreed in said forecloplaintiff's $4,000 payment entitled plaintiff to sure proceeding to be due the plaintiff against a rescission of the contract, since the establish- the defendants, Paul H, Reimers and Grace ment of the highway unknown to the parties, Reimers, including costs, disbursements, and inwhich rendered the premises unsuitable for the J terest and attorney's fees, and the further amount of $16,320.00, with interest thereon at tled to a good and sufficient deed of this receivthe rate of 6 per cent. per annum from and er conveying such portion of the premises as he after May 1. 1912, and the assumption by the shall in writing specify upon payment, as folparty of the second part of the certain mort- lows: For uncleared land upon said premises gage for $7,000 in favor of Balfour, Guthrie & $50.00 per acre; for cleared land $80.00 per Co., now a first lien upon said premises. It is acre, except for the governmental subdivision further understood that the payment of $1,000 of forty (40) acres upon which the dwelling herein acknowledged shall apply as part of said house stands, which shall be conveyed, as aforepurchase price in case all of the purchase price said, upon the payment of $120.00 per acre. shall be paid by the party of the second part. And whereas, the said option provides that the In the event that the party of the first part total price of said pre

t part total price of said premises shall be the amount shall be unable to carry out this agreement or decreed in certain foreclosure proceedings, plus shall for any reason fail to carry out the same, an additional amount therein specified, and the the party of the second part shall, at his option, amount decreed to be due plaintiff, M. B. Kies, be entitled on demand to the return of said as receiver in said foreclosure proceedings, by sum of $1,000 to be paid to him by the party oversight and omission failed to include the of the first part, but the party of the first part sum of $325.00, with interest thereon at the shall not be bound to complete the terms of this rate of 6 per cent. per annum from and after contract in case said property is redeemed with: May 15, 1912, it is understood that said lastin the time limited by law. It is understood named sum shall, for the purpose of said option, and agreed that the option herein granted shall be added to the amount of the decree actually exist in favor of the party of the second part rendered in favor of the plaintiff in said fore. until the expiration of 15 days after written no- closure proceedings, and the consideration or tice by party of the first part to party of the purchase price of said premises shall be insecond part of the deed or obtaining of title by creased in said sum." decree of strict foreclosure, as above provided. It is further understood and agreed that the Subsequently Zollinger assigned the conagreements herein contained shall bind the heirs,

tracts to plaintiff, who, being desirous of makassigns, personal representatives, and successors of both of the parties hereto."

ing full payment for the 40-acre tract upon

which the house stood, in accordance with On December 4, 1912, M. A. Zollinger, hav

the terms of the supplemental contract above ing taken an assignment of the option from

set out, made a proposition to defendant, Malpas, paid $4,000 thereon, and took from though not in writing, to pay therefor as proKies a receipt and supplemental contract vided in the event that he could have the reading thus:

tract released from the lien of the Balfour, “Portland, Oregon, December 4, 1912. The un-Guthrie & Co. mortgage. The parties were dersigned, M. B. Kies, receiver of the Commer- not able to secure a release from the mortcial Bank of Vancouver, Washington, hereby acknowledges receipt from M. A. Zollinger of the Bags

gagors without the payment of the entire sum of four thousand dollars ($4,000) paid to mortgage debt, and, as the defendant was said receiver in accordance with the terms of the unable or unwilling to do this, the deed to certain option and written agreement dated June 28, 1912, between the undersigned and F.

the 40-acre tract was never executed. C. Malpas, covering a certain tract of land in

On April 5, 1912, after the necessary prethe counties of Washington and Yamhill. in liminaries had been observed the county the state of Oregon, known as the 'Aldrich

court of Washington county made and enterplace,' which option and agreement has been assigned to the said M. A. Zollinger by the

ed an order establishing a county road which, said F. C. Malpas, said payment being made in according to the survey, would run practithe manner following: $3,666.35 thereof incally through the dooryard and within 50 cash, and $333.65 thereof by receipt of B. M.

feet of the dwelling house on the 40-acre Lombard for costs, expenses, disbursements, and attorney fees advanced by the said B. M. Lom

tract above mentioned. Neither plaintiff nor bard on behalf of said M. B. Kies, receiver, defendant had any actual knowledge of the in the foreclosure suit of said M. B. Kies, re-establishment of such highway until a few ceiver, v. Paul H. Reimers et al.; and whereas, by the terms of said option it is agreed that days before the commencement of this suit, the said receiver shall prosecute said suit to a at which time they together visited the premsuccessful final determination and to procure ises, and found the county's employés busily title to all of said premises in himself free from the claims of any and all of the defend

engaged in grading the road through the ants therein, and the right of the defendants property. Shortly thereafter plaintiff beto appeal from the decree rendered in said suit gan this suit to rescind the contract and has not expired: It is further agreed and under

recover the payments made thereon, alleg. stood between said receiver and said M. A. Zollinger that in case an appeal shall be perfected ing two breaches thereof: (1) The refusin said suit, the said receiver shall and will, al of defendant to convey the 40-acre tract upon the request of the said M. A. Zollinger or

free from the incumbrance of the Balfour, his assigns, return to the said M. A. Zollinger the amount paid upon said premises, to wit, the

Guthrie & Co. mortgage; and (2) the essum of five thousand ($5,000.00) dollars, except- tablishing of the public road so near the ing said sum of $333.65. In consideration of the premises and of the payment at this time of

dwelling house as to render the premises unthe amounts above specified, and in considera

fit for the purpose for which he was purchastion of payment of one dollar to said receiver ing it, that is, for a suburban home for his by said M. A. Zollinger, receipt of which sum | family. and that therefore the defendant is hereby acknowledged, said receiver further agrees that said M. A. Zollinger, his heirs and I will be permanently prevented from giving assigns, shall have the right and privilege of him a good conveyance free from incumpaying upon the said contract dated June 28, brance. Defendant, answering, denies the 1912, any sum or sums he may desire at any

| alleged breaches of the contract, and by af. time or times before the maturity thereof, and upon such payment being made he shall be enti- | firmative answer seeks a strict foreclosure of the same. From a decree in favor of plain- / question of its effect upon the agreement detitr, defendant appeals.

pends upon the facts of the individual case, Kollock & Zollinger, of Portland, for ap- |

especially in a suit to rescind; for, if the pellant. Flegel, Reynolds & Flegel and H.

prospective highway renders the premises L. Parcel, all of Vancouver, Wash., for re

unsuitable for the purposes intended by the spondent.

vendee, the discovery thereof presents a con

dition which was not in the cortemplation of BENSON, J. (after stating the facts as the parties, and the vendee ought not to be above). The entire problem in this case is compelled to purchase something different based upon the question as to whether or not from that for which he bargained. In the there have been such breaches of the con- case at bar the land was about 25 miles tract as to entitle plaintiff to rescind.

from Portland where plaintiff resided. He [1, 2] It is obvious from an examination of was purchasing the land for the special purthe writing that the agreement is nothing pose of making the 40-acre tract a summer more or less than a unilateral option to buy | home for his family. The possibility of havin which the vendee may or may not at his ing a dusty country road within 50 feet of own pleasure make the payments specified his dwelling house, rendering habitation therein. Scott v. Merrill's Estate, 74 Or. therein disagreeable and the passing of au568, 146 Pac. 99, and cases there cited. He tomobiles and other vehicles so near his home did not assume the Balfour, Guthrie & Co. bringing added dangers into the lives of his mortgage; for the time had not arrived children, presents a condition not contemwhen he would be called to elect as to its plated at the time of entering into the opassumption. Reading the supplemental con- tion agreement and entitled him, we think, tract in the light of this conclusion, it fol- to a decree of rescission. A decree will therelows that if the plaintiff complied with the fore be entered here annulling the contract, terms thereof in seeking a deed to the 40-acre and a judgment in favor of plaintiff as praytract, he was entitled to a good and sufficient ed for in his complaint, except that the taxes deed free from the incumbrance of the mort- paid by him should be offset by his occupagage. However, it is conceded that plaintiff tion of the premises from December 4, 1913, never specified in writing the land that he and that the moneys expended by him in desired to have conveyed, and therefore, hav- putting in a crop should be eliminated, since, ing failed to comply with the terms of the so far as the record discloses, he harvested contract himself, he is in no position to com and derived all the benefits from such crop. plain of a default upon the part of his ad. It appears from the record that pending litiversary.

gation the property was leased for the crop (3) Plaintiff's second contention presents season of 1914, at a rental of $350, of which greater difficulty. There is much diversity $175 was deposited in court with the lease, by of opinion in the authorities as to whether agreement of the parties, to abide the deor not a public highway is such an incum- cision of the court. This money and the brance as to constitute a breach of the cov- lease are to be withdrawn by the defendant, enants in a conveyance. Many of those who will be given four months from the enwbich agree upon the main point differ wide-try of the mandate herein in the lower court ly as to the reasons which lead to the com- | in which to pay the sums so adjudged to be mon conclusion. These authorities are quite paid, and plaintiff decreed to have a lien upfully collated in Sandum V. Johnson, 122 | on the premises for such payment. Minn. 368, 142 N. W. 878, 48 L, R. A. (N. S.) 619, Ann. Cas. 1914D, 1007, and in that opin | EAKIN, J., took no part in the consideraion the result is stated in this language: tion of this case.

"While the decisions are conflicting, the clear weight of both argument and authority is that the existence of a known rural highway does not constitute a breach of the usual covenants in a

SARGENT, Superintendent of Banks, V. deed conveying agricultural land."

AMERICAN BANK & TRUST CO. This court has held that the existence of

OF PORTLAND et al. an open, notorious, and visible incumbrance (Supreme Court of Oregon. Feb. 1, 1916.) upon land contracted to be conveyed, such 1. BankS AND BANKING 49-LEGAL CAas a railroad in operation, is not an incum PACITY TO SUE-LIABILITY OF STOCKHOLDbrance which renders the owner's title un

ERS-CONVERSION.

Under L. O. L $ 4586, as amended by marketable and assigns as the reason for so Laws 1911, p. 244, providing that the superinholding that it is presumed that in fixing the tendent of banks may liquidate the affairs and purchase price the existence of the incum administer the assets of a bank of which he has

taken charge, and do whatever is necessary to brance was taken into consideration. Bar

preserve its assets and business, and enforce num v. Lockhart, 75 Or. 528, 146 Pac. 975; the individual liability of stockholders, the suWetherby V. Griswold, 75 Or, 468, 147 Pac. perintendent of banks representing primarily 388. The inevitable logic of this deduction

the creditors and depositors of the bank had

legal capacity to sue defendant for the value of is that, if the establishment of the highway stock transferred to him in consideration of a is unknown to the contracting parties, the conveyance of realty to which his title was

practically worthless, and for the value of other he gives in exchange is equal to the par value stock alleged to have been wrongfully converted of the stock. by him to his own use.

| [Ed. Note.--For other cases, see Banks and [Ed. Note.--For other cases, see Banks and Banking, Cent. Dig. 88 44-48; Dec. Dig. Banking, Cent. Dig. 88 71-8142, 513, 534, 533; 39.] Dec. Dig. 49.]

8. BANKS AND BANKING 39 - SALE OP 2. BANKS AND BANKING 19ACTION BY STOCK-PAYMENT IN REALTY.

SUPERINTENDENT OF BANKS – DEFENSE - Under L. 0. L. 4571, prohibiting banks FRAUDULENT AND UNAUTHORIZED ACTS OF from purchasing realty except such as is necesBank.

sary for the location of its business, including In a suit by the superintendent of banks other premises in the same building to rent for against a stockholder of an insolvent bank for income not exceeding in cost 50 per cent. of its the value of stock converted by him to his own I paid-in capital, surplus, and undivided profits use, and also stock transferred to him in con- and such as shall be conveyed to it in satisfacsideration of a worthless title to realty, fraudu- tion of debts previously contracted, or as shall lent and unauthorized acts of the bank are not be purchased by it for its protection at judicial available as a defense.

sales, an attempted payment for bank stock in [Ed. Note. For other cases, seo Banks and

realty, not within the exceptions of the statBanking, Cent. Dig. $8 71-8142, 513, 534, 535;

25:ute, was unauthorized and amounted to no pay. Dec. Dig. 49.]

ment at all, except to the extent that the pro

ceeds of the attempted payment went to swell 3. BANKS AND BANKING 39-STOCK-PUR-| the bank's assets. CHASE BY BANK-VALIDITY.

[Ed. Note.-For other cases, see Banks and Under L. 0. L. $ 4569, forbidding a bank |

pank | Banking, Cent. Dig. 88 44–48; Dec. Dig. to buy its own stock except under circumstances

39.] not existing when the stock in question was surrendered, an attempted surrender of bank 9. BANKS AND BANRING 49 INSOLVENCY stock by a subscriber who had given worthless -Suit For VALUE OF STOCK-DEFENSE. assets of another bank in exchange therefor, was In a suit in equity by the superintendent void, and did not vest the bank with ownership of banks for the value of bank stock bought by of the stock surrendered or give it a right to re- defendant, defendant could not be heard to say iesue same.

by way of defense that he had given certain [Ed. Note.-For other cases, see Banks and property in exchange for the stock, where it apBanking, Cent. Dig. $8 4448; Dec. Dig. Om peared that after becoming president of the 39.]

bank he removed such property from the bank's

assets and converted it to his own use. 4, BANKS AND BANKING Om 47-INSOLVENCY

[Ed. Note. For other cases, see Banks and -SUBSCRIBER-LIABILITY, In a suit by the superintendent of banks

Banking, Cent. Dig. $$ 71-814, 513, 534, 535; to recover from a stockholder of an insolvent

Dec. Dig. Om 49.] bank the value of stock for which he had given 10. BANKS AND BANKING 39 LIABILITY a practically worthless title to realty, the fact, OF STOCKHOLDERS-RELEASE-VALIDITY *if it were a fact, that the stock was some which Where a purchaser of bank stock gave in bad been unlawfully bought in by the bank and exchange therefor practically worthless prop reissued to defendant, did not render him any erty, a release, executed in the name of the bank the less a subscriber liable for whatever he had and signed by its manager and cashier, of all not paid on the stock.

claims against such purchaser, was ineffective, [Ed. Note.--For other cases, see Banks and where it was executed without authority of the Banking, ('ent. Dig. 88 62, 64-68, 341; Dec. bcard of directors or of the stockholders. Dig. Om 47.]

[Ed. Note.-For other cases, see Banks and 5, BANKS AND BANKING 49—INSOLVENCY

| Banking, Cent. Dig. 88 44-48; Dec. Dig. Om -ACTION BY SUPERINTENDENT OF BANKS

39.] DEFENSE.

11. BANKS AND BANKING Om 48INSOLVENCY In a suit by the superintendent of banks -SUIT BY SUPERINTENDENT OF BANKS-DEfor the value of stock for which defendant had FENSE. given practically worthless property, it was no An indemnity agreement purporting to be a defense that defendant had caused part of the sale of bank stock to another by defendant, who stock to be issued to a third person.

had purchased same giving practically worthless Note. For other cases. see Banks and l property therefor, was unavailable to protect Banking, Cent. Dig. 88 71-811, 513, 534, 535; defendant from liability for the value of stock Dec. Dig. 49.]

in a suit by the superintendent of banks, where

| it appeared that the transaction was in fact & 6. BANKS AND BANKING Cmw 19-INSOLVENCY retransfer of the stock to the bank and a mere

-SUIT BY SUPERINTENDENT or BANKS-DE subterfuge to circumvent the law which prohibFENSE.

its a bank from purchasing its own stock, and Where in a suit by the superintendent of was adopted to enable defendant to escape liabanks for the value of stock for which defendant / bility. had given a practically worthless title to realty,

[Ed. Note.--For other cases, see Banks and it appeared that the transaction was a fraud

Banking, Cent. Dig. $$ 69, 70; Dec. Dig. Een on the bank, its stockholders and creditors, and that for several months after it took place, defendant acted as president of the bank, and hela | 12. BANKS AND BANKING O 49-CONVERSION it out to the public as being solvent, he could OF BANK STOCK - RESTORATION-RIGHT OF not be heard to say by way of defense that the RECOVERY. bank stock was as worthless as his title to the

Where, in a suit brought by the superinrealty.

tendent of banks in the interest of creditors and [Ed. Note.--For other cases, see Banks and

innocent stockholders of an insolvent bank for Banking, Cent. Dig. 88 71-8142, 513, 534, 535;

the unlawful appropriation of bank stock which Dec. Dig. 49.]

defendant, while president of the bank, unlaw.

fully and without consent of the directors, caus7. BANKS AND BANKING C 39 SALE OF | ed to be issued to himself and for which he paid BANK STOCK-DUTY OF SUBSCRIBER.

nothing, it appeared that defendant had restored A subscriber to the stock of a bank must the equivalent of that which he had thus un. exercise the utmost good faith to see that what I lawfully retained, and that the bank had lost

48.)

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nothing by the transaction, plaintiff was not Suit by S. G. Sargent, as Superintendent of er titled to recover for such conversion.

Banks of the State of Oregon, on behalf of [Ed. Note.-For other cases, see Banks and

the creditors of the American Bank & Trust Banking, Cent. Dig. $8 71–8142, 513, 534, 533; Dec. Dig. 49.)

Company of Portland, Or., insolvent, against 13. BANKS AND BANKING 49-INSOLVENCY

the American Bank & Trust Company of - SUPERINTENDENT OF BANKS – JURISDIC

Portland, Or., a corporation, and L. 0. RalsTION IN EQUITY.

ton. From decree for plaintiff, defendant That the books of an insolvent bank show- | Ralston appeals. Modified. ed on their face a regular purchase and issue of bank stock to defendant and a payment cred This is a suit brought by the plaintiff on it of the reasonable value thereof in realty and behalf of all the creditors of the American stock of another company, when in fact such realty and stock were worthless and such credit

Bank & Trust Company against said bank fraudulent, and that defendant had obtained an and L. 0. Ralston, in which it is sought to apparently regular release of liability signed

secure a decree against the defendant Ralston by the officers of the bank, when in fact the release was unauthorized and fraudulent, author

for the sum of $34,300, with legal interest ized the institution of a suit in equity by the alleged to be due the bank on account of cersuperintendent of banks; it clearly appearing ! tain transactions between him and the dethat a suit at law would not afford an adequate remedy in such case.

fendant bank. The complaint states two caus(Ed. Note.-For other cases, see Banks and es of action. The first of them may be sumBanking, Cent. Dig. 88 71-8142, 513, 534, 535; marized as follows: Dec. Dig. Om 19.]

"The defendant corporation has an authorized 14. BANKS AND BANKING 49 INSOLVENCY

capital stock of $150,000, divided into 1,500 -SUIT BY SUPERINTENDENT OF BANKS-DE

shares of the par value of $100 a share; that FENSE-BOND OF INDEMNITY.

on or about the 2d day of May, 1908, the deIn a suit by the superintendent of banks fendant L, O. Ralston subscribed for 245 shares against a stockholder of an insolvent bank to

of the capital stock of said corporation; that recover the value of stock issued to him in ex-l the said defendant L. 0. Ralston in payment change for practically worthless property, &l of the said 245 shares of said capital stock of bond signed by another stockholder and the said defendant corporation transferred by quitbank, indemnifying defendant against liability I claim deed to the said defendant corporation, to stockholders of the bank, constituted no de- the following described property [here follows fense; the stockholder's undertaking being al description of the property]; that at the same personal matter between him and defendant, and

time, and as a part of the same transaction the the bank's undertaking being void as to its cred

said defendant L. 0. Ralston transferred to the itors.

said defendant corporation, as a part considera[Ed. Note. For other cases, see Banks and tion for the said 245 shares of the capital stock Panking, Cent. Dig. 88 71-8142, 513, 534, 535; of defendant corporation, 23 shares of the capiDec. Dig. 49.]

tal stock of the City Messenger & Delivery Com15. BANKS AND BANKING 49 INSOLVENCY pany; that the said defendant 'L. 0.`Ralston -SUIT BY SUPERINTENDENT OF BANKS

represented to the officers and directors of the PARTIES.

defendant corporation that the real property deIn such suit, it was not necessary to make

scribed in paragraph 5 hereof was of the reason. all the stockholders of the bank parties; the able value of $22,200;

able value of $22,200; that he had a good mer. superintendent of banks having authority to chantable title to said real property; that he bring any suit that the bank or any stockholder would convey the said real property free of all could have brought.

incumbrance and by warranty deed to the said [Ed. Note.-For other cases, see Banks and

defendant corporation, that relying upon these Banking, Cent. Dig. $$ 71–8112, 513, 534, 535;

representations, which the defendant L. O. Dec. Dig. Om 49.)

| Ralston well knew to be false at the time

he made them, the said defendant corporation 16. BANKS AND BANKING 49-INSOLVENCY issued 245 shares of its capital stock to the

-SUIT OF SUPERINTENDENT OF BANKS-DE said defendant Ralston, to its prejudice and FENSE.

injury herein; that the said representations In a suit by the superintendent of banks were false and fraudulent at the time he made for the value of stock exchanged for practically them; that the only title said defendant Ralworthless property, it was no defense that other ston had to the said real property, or any part stockholders had failed to pay in full for their thereof was, by virtue of deed from the sheriff stock,

of Multnomah county, Or., as tax collector; [Ed. Note.--For other cases, see Banks and that the said real property was sold in January, Banking, Cent. Dig. 88 71-81, 513, 534, 535: 1905, to the said defendant L. 0. Ralston for Dec. Dig. 49.]

delinquent taxes of the year 1903; that since 17. BankS AND BANKING O 49-INSOLVENCY

January, 1905, the defendant L. 0. Ralston has

acquired no further right, title, or interest in or -SUIT BY SUPERINTENDENT OF BANKSPLEA IN ABATEMENT-PENDENCY OF ANOTH

to said real property; that the total considera

tion paid by the defendant Ralston to the sherER SUIT.

iff of Multnomah county for said real property In such suit, a plea in abatement alleging was $99.64 : that the title held by the said dethat plaintiff was suing another person for a fendant Ralston to said real property was pracsubscription for the same stock was not avail. I tically valueless, and known by the said defendable, though such fact might be considered as ant Ralston to be practically valueless; that the evidence of an admission by plaintiff that such

said defendant Ralston, though often requested other person and not defendant was the person by the officers and directors of the said defendliable.

ant corporation, has failed, neglected, and re[Ed. Note.-For other cases, see Banks and fused to convey the said real property described Banking, Cent, Dig. 88 71-8142, 513, 534, 535; | in paragraph 5 hereof, by a warranty deed to Dec. Dig. 49.)

the said defendant corporation; that the said

defendant Ralston has further failed, refused, In Banc. Appeal from Circuit Court, Land neglected to pay any other or further conMultnomah County; R. G. Morrow, Judge. sideration for the said 2,5 shares of the capital

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