Stark v. Starr

APPEAL from the Circuit Court of the United States for the District of Oregon.

This was a suit in equity, to restrain the defendant from enforcing a judgment recovered by him against the tenants of the complainant, for the possession of certain premises situated in the city of Portland, Oregon, and to compel the defendant to execute a release of his interest to the complainant.

It appears from the record, that on the 22d of March, 1848, and for some time previous, one Francis W. Pettygrove held a claim to six hundred and forty acres of land in Oregon, which was taken up by him under the law of the provisional government, established by the settlers there in 1845, before the laws of the United States were extended over the country. On the land covered by this claim a large part of the city of Portland is built. On the day mentioned, Pettygrove conveyed his claim, with the exception of certain designated lots, to one Daniel H. Lownsdale, of Portland. By the conveyance, the grantor, for the consideration of $5,000, and divers other good causes and considerations, bargained, remised, and released to the grantee named all his 'right, title, interest, claim, and demand at law and in equity, present and in expectancy,' in and to the land claim the boundaries of which were given.

On the 30th of March, 1849, Lownsdale, for the consideration of $6,000, bargained, quitclaimed, and released his interest in the claim, with the exception of certain lots, to Stephen Coffin, designating the interest conveyed, and describing the claim in similar language. With the execution of this conveyance, Low sdale and Coffin entered into a contract by which Coffin agreed to make every exertion to obtain the title of the United States to the claim, divide the proceeds of any sales of lots or other property or privileges on the land claimed; to bear half the expenses of any improvements they might jointly conclude to make; to further the interest of the town site; to divide the profits and the losses; and that Coffin should execute to Lownsdale a good title to one-half of the claim upon the termination of the contract, which was dissolvable by mutual consent.

On the 13th of December, 1849, Lownsdale and Coffin, for the consideration of $26,666, payable by instalments, conveyed one undivided third part of the claim to William W. Chapman, of Portland. From that time the three parties owned the claim jointly, designating themselves as partners.

During this time, the defendant Stark asserted ownership to one undivided half of the claim, by purchase from one Love-joy, who, he contended, had held the claim in connection with Pettygrove.

In January, 1850, Lownsdale went to San Francisco, leaving with Chapman a power of attorney to transact and superintend his business in the Territory during his absence; to do any thing pertaining to his interests in Oregon which he, in his judgment, might think advisable, 'particularly in signing deeds to Portland lots.'

At San Francisco Lownsdale met Stark, and they made a settlement of their respective claims, by which the claim was divided by a line running through what is now called Stark Street; Stark taking the part north of the line, and Lownsdale the part south of it. This settlement was embodied in a deed of release and quitclaim, executed by them on the 1st of March, 1850. By the deed, Stark ratified and confirmed the conveyances of certain designated lots north of that line, made by Lownsdale or his attorney, previous to the first day of January, 1850, and also all grants and conveyances made subsequently to the first day of March, with a proviso that Stark should receive the proceeds of the subsequent conveyances.

During the absence of Lownsdale, Chapman and Coffin agreed to partition off three blocks among the three owners, assigning one to each owner in severalty, at an agreed valuation. In this way, block 78 was assigned to Lownsdale, block 79 to Coffin, and block 81 to Chapman. This partition, making assignment, was made by the following instrument:--

'This indenture, made and entered into this twentieth day of March, A.D. 1850, between Stephen Coffin, D. H. Lownsdale, and W. W. Chapman, proprietors of Portland, of the first part, and W. W. Chapman, of Portland, Washington County, Oregon, of the second part, witnesseth, that the party of the first part, for and in consideration of the sum of $2,000, the receipt whereof is hereby acknowledged, doth release, confirm, and quitclaim unto the said Chapman the following-described property in the said town of Portland, to wit, lots numbers one (1), two (2), three (3), four (4), in fractional block number eighty-one (81), being the warehouse fraction, and situate east of Water Street, to the water north of Oak Street and south of Pine Street, according to the plat of said town.

'In testimony whereof, the parties have hereunto set their hands and seals day and year aforesaid.

(Signed) 'S.C.OFFIN. [SEAL.]

'D. H. LOWNSDALE, [SEAL.]

'By his Attorney-in-fact, W. W. Chapman.

'W. W. CHAPMAN. [SEAL.]'

Chapman and Coffin first heard, early in April, 1850, of the settlement between Stark and Lownsdale. They at once refused to ratify it, unless the agreement or deed of settlement was modified so as to cover the disposition of property made by them during Lownsdale's absence up to the time they were informed of the settlement.

Stark had left Portland in September of the previous year. Before he left, he executed the following power of attorney, and delivered it to John H. Couch:--'Know all men by these presents, that I, Benjamin Stark, merchant, resident of Portland, in the T rritory of Oregon, do hereby make, constitute, and appoint John H. Couch, of Portland aforesaid (merchant, and my mercantile partner), my true and lawful attorney, for me, and in my stead, to do any and all acts, during my temporary absence from this Territory, which I might myself lawfully do were I personally present, hereby ratifying and confirming all and every act which my said attorney shall so perform, and, by these presents, recalling and annulling all authority conflicting with this letter of attorney, which I have previously given to any person or persons whatsoever.

'Witness my hand and seal, at Portland, this twenty-sixth day of September, A.D. 1849.

'BENJ. STARK. [SEAL.]

'Witness: WM. SETON OGDEN.'

With this power, Stark sent the following letter to his attorney:--

'JOHN H. COUCH, Esq.:

'SIR,-With this you have from me a power of attorney of the fullest character, under which, during my absence from the Territory, you can look out for all my interests, particularly with reference to my interest in the Portland town claim.

'As regards the claim, I wish you to notify Mr. Coffin, as soon as he returns, of the true position of things, and, if possible, have the difficulty concerning my undivided half settled. I have spoken to James W. Nesmith, Esq., and to Mr. Pritchard, Secretary of State, and they will both hold themselves in readiness to act as my counsel.

'Should you find, after the return of Mr. Coffin, that the matter can be brought no nearer to a settlement upon just and equitable principles, I wish you to submit to them (Nesmith and Pritchard) all my papers, a part of which you have herewith, and others which you can have from A. L. Lovejoy, Esq., upon application to him, and direct them to pursue such measures as they deem most judicious.

'Mr. Lovejoy can give some valuable hints to my counsel, as he was formerly my agent. It will be necessary for you to advise the public of your appointment as my attorney during my absence. The proper kind of notice to publish, Nesmith or Pritchard can prepare.

'Wishing you may have but little trouble with my affairs, yet trusting that you will battle to the utmost for my rights if necessary, I am yours, affectionately,

'BENJ. STARK.

'PORTLAND, 26th September, 1849.'

Assuming to act under the authority of this power and letter, Couch undertook to obtain from Chapman and Coffin a ratification of the agreement of settlement between Stark and Lownsdale. For that purpose he consented to the modification demanded by them. Accordingly the agreement was ratified by Chapman and Coffin by the following instrument signed by them indorsed upon the agreement:--

'We, Stephen Coffin and W. W. Chapman, partners with Daniel H. Lownsdale, in the town of Portland, hereby ratify and confirm a certain agreement between Benjamin Stark and D. H. Lownsdale, bearing date the first day of March, A.D. 1850, respecting an adjustment of title, hereby placing the disposition of property up to notice of said adjustment upon the same footing with the disposition of property before the first day of January last.

'In testimony whereof we have hereunto set our hands and seals this the thirteenth day of April, A.D. 1850.

'S.C.OFFIN. [L. S.]

'W. W. CHAPMAN. [L. S.]'

Under this instrument the following ratification by the attorney of Stark was executed:--

'PORTLAND, O. T., April 15, 1850.

'I ratify the above agreement as far as my interest is concerned in said property.

'JOHN H. COUCH,

'For BENJ. STARK.'

All other material facts are sufficiently stated in the opinion of the court.

The complainant obtained a decree for the release prayed, and the defendant appealed to this court.

Mr. Jeremiah S. Black for the appellant.

Mr. George H. Williams for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.