changes and chances of parol evidence-the him for services rendered and money spent maxim of stare decisis bids us to go back to the old, straight, safe paths, and not to blunder again and again, because we have blundered once."

at her request of the reasonable value of a stated sum, and it was held that plaintiff was not entitled to recover on quantum meruit as he had not elected to treat the conIn Lipscomb v. Adams, 193 Mo. 530, 91 S. tract as rescinded. In that case it appears W. 1046, 112 Am. St. Rep. 500, it appeared from an instruction that the defendant had that a written contract had been executed, agreed to pay $100 for plaintiff's services, acknowledged, and recorded as required by and also promised to reimburse him for all law concerning agreements affecting real sums of money expended on her account, and property, whereby plaintiffs, who were at- further to give him 20 per cent. of her intertorneys, stipulated to prosecute all suits nec- est in a certain estate in case he could esessary to recover for their client certain tablish her right thereto and recover the lands, in consideration of which service, if same for her, and also by a power of attorsuccessful, she was to execute to them deeds ney she appointed him her agent to procure for one-half of the real property secured by such interest. It is impossible to state from decree, or if a compromise were effected they an examination of the facts disclosed whethwere to receive a moiety either of the mon- er or not the estate to which the client's ey or premises obtained in settlement. Pur- claim was to have been established consisted suant to the agreement, plaintiffs began for of personal or real property, but if it be contheir client proper suits, pending which she, ceded that it comprised only the latter class, in consideration of $600, compromised the the power of attorney, which must have been controversy, executed to the parties who as- in writing and duly subscribed, undoubtedly serted titles to the lands deeds of all her inter- afforded a memorandum sufficient to take the est therein except as to 13 acres, and there- case out of the statute of frauds. Though upon dismissed the suit without the consent the judgment was reversed in consequence of of her attorneys. They thereafter brought an erroneous instruction having been given, suits against the persons to whom she had it was intimated that while the plaintiff was executed deeds to recover one-half of the suing for a breach of the contract and askland that was claimed under the contracting for the resulting damages, the action was with their client, which suits were compro- maintainable. mised by the attorneys, who paid to one of the parties a sum of money for a quitclaim deed of his interest, and executed to another party a deed to a portion of the land in consideration of a conveyance to them of the remainder. The attorneys thereafter instituted a suit against Adams who, by mesne conveyances, held the legal title to the 13 acres, which were not included in the compromise, to recover a moiety of the land, and it was held that they were entitled thereto. It was further determined that a contract whereby attorneys, if successful in litigation for the recovery of land, were to receive one-half thereof, the moiety being worth $1,500 or $2,000, was not so unreasonable as to be unenforceable in equity, though the amount of labor actually performed by the attorneys was small because of a compromise of the suit by the client without their consent. In that case the contract having been duly executed and recorded, the parties who purchased any of the real property described in agreement took the title to the premises with notice of the attorneys' claim to an interest in the land, and as the memorandum was in writing, expressing the consideration and subscribed by the party to be charged, the contract was not within the statute of frauds.

In Weil v. Fineran, 78 Ark. 87, 93 S. W. 568, which was an action by an attorney against his client, the complaint averred in the first count the plaintiff's employment to perform services for the defendant, and that she refused to permit him to do so, whereby he was damaged; and also alleged in another count that defendant was indebted to

In Wright v. Kas. City, etc., R. Co., 141 Mo. App. 518, 126 S. W. 517, which was a suit to enforce an attorney's lien for a fee based on a written agreement entered into by the attorney and his client whereby the latter was to pay the lawyer 50 per cent. of any sum that might be secured in consequence of personal injuries which he had sustained, the contract stipulated that the client should not compromise or settle the claim without the written consent of the attorney. The defendant, having notice of the lien, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action because the clause not to compromise the claim for damages rendered the contract unenforceable. The demurrer was sustained and the action dismissed, but upon appeal the judgment was reversed, the court holding that the contract was not void as contrary to public policy, and that the validity of the provision could only be called in question in case the attorney undertook to enforce it against his client. In that case the agreement did not relate to real property, and, as the contract was in writing and signed by the client, the statute of frauds was not involved.

In Davis v. Webber, 66 Ark. 190, 49 S. W. 822, 45 L. R. A. 196, 74 Am. St. Rep. 81, 89, which was a suit to recover a stated sum for services performed by an attorney for his client, in securing a judgment and to declare and enforce a lien upon certain property, it was held that though the written contract. subscribed by the parties, was void because of a stipulation that the client should not

the party rendering the service who may recover the value of the labor on a quantun meruit. 3 Sutherland, Dam. (3d Ed.) p. 2054; Brown, Stat. Frauds (5th Ed.) 125: Mills v. Joiner, 20 Fla. 479; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Tucker v. Grover, 60 Wis. 240, 19 N. W. 62.

settle or compromise the controversy without | the execution of a deed to the premises is the attorney's consent, compensation might refused, the agreement can be abandoned Ly be granted the attorney for his services under the rule of quantum meruit, and the contract might be examined to ascertain what value the parties themselves considered the services reasonably worth. In that case the agreement, being in writing, was not within the statute of frauds. It is fair to assume that the suit was for the recovery of the reasonable value of the services performed by the attorney, for Mr. Justice Wood, in referring thereto, says: "Now, Webber, under the quantum meruit, should receive pay only for the services actually rendered."

In Ham v. Goodrich, 37 N. H. 185, an agreement to convey land in consideration of services to be rendered was held to be within the statute of frauds, yet, upon a quantum meruit to recover the reasonable worth of the services performed it was ruled that the value of the land was not the fixed measure of the damages, though such value was competent evidence to be considered in determining the question of damages. In that case one of the counts in the declaration in as

sumpsit was as follows: "That on the first day of January, 1824, the deceased, in consideration that the plaintiff agreed to live, with his family, with the deceased, take care of him and serve him till his death, promised to pay him so much money," etc.; and alleg. ed that he deserved to have $5,000. It will thus be seen that a quantum meruit was relied upon as a basis for the recovery.

Attention has been called to the case of Ingersoll v. Coram, 211 U. S. 335, 29 Sup. Ct. 92, 53 L. Ed. 208, which in effect overrules the decision in Harris v. Root, 28 Mont. 159, 72 Pac. 429, as sustaining plaintiff's theory. In the principal case referred to the contract stipulating for the payment of a fee in case of a successful termination of the controversy did not provide that a performance of the service by the attorney should have been compensated by a conveyance of real property, and hence the agreement was not violative of the statute of frauds.

An examination of the averments of the complaint in the case at bar will show that the cause of action undertaken to be stated is founded on the contract to recover the damages resulting from a breach of the agreement. It will be remembered, however, that the pleading referred to states that $4,500, the damage sustained, is the reasonable compensation for the services performed. While this clause is expressed in the form of an averment of fact, it would seem to be nothing more than a conclusion of law that was not predicated on any allegation of the complaint.

The rule seems to be well settled that where under a contract, void by the statute of frauds, services have been performed in consideration of a conveyance of land and

The plaintiff, having failed to pursue this remedy, instituted an action for damages which presupposes the enforcement of the contract, and, such being the case, the conclusion of law complained of is deducible from the facts as found, and no error was committed as alleged. It follows that the judgment is affirmed.

(58 Or. 98)

BICKEL v. WESSINGER et al. † (Supreme Court of Oregon. Jan. 31, 1911.) 1. PLEADING (8 398*)-ISSUES, PROOF, AND VARIANCE.

Where the variance between the complaint and the evidence was not substantial and did not mislead defendant to his prejudice, and related only to minor matters, alleged in the complaint by way of inducement, which were not strictly proved, the variance was immaterial.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1338; Dec. Dig. § 398.*] 2. MORTGAGES (§ 497*) - FORECLOSURE - EF

FECT.

A decree foreclosing a first mortgage was rendered in a suit against the mortgagor and against the second mortgagee who defaulted. The second mortgagee purchased the premises fore the confirmation of the sale, the second at the sale for the amount of the decree. Bemortgagee agreed to give the mortgagor three years to redeem or whenever he paid back the money the second mortgagee would return the property. Held to prove an implied promise of the mortgagor to refund the money in consideration of the extension of time in which to redeem.

[Ed. Note.-For other cases. see Mortgages, Dec. Dig. § 599.*]

5. CONTRACTS (§ 71*) - CONSIDERATION-FORBEARANCE.

A forbearance to redeem the property sold under a mortgage foreclosure decree is a sufficient consideration to support a promise to extend the time within which to redeem.

[Ed. Note. For other cases, see Contracts Dec. Dig. § 71.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

6. FRAUDS, STATUTE OF (8 47*)-CONTRACTS- sale and the mortgagor was a mortgage and PERFORMANCE WITHIN A YEAR. not a contract to reconvey the property.

Under L. O. L. § 808, making void an agreement that, by its terms, is not to be performed within a year from the making thereof, only a parol agreement which shows by its terms or within the contemplation of the parties that it cannot be performed within a year [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 73; Dec. Dig. § 47.*] 7. FRAUDS, STATUTE OF (8 49*)-CONTRACTSPERFORMANCE WITHIN A YEAR.

is void.

A parol agreement by a purchaser at a mortgage foreclosure sale to give the mortgagor three years in which to redeem or to return the property whenever he pays back the money paid for the purchase is not within L. O. L. § 808. making void an agreement that, by its terms, is not to be performed within a year, because the mortgagor may redeem at any time prior to the three years.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. § 49.*] 8. MORTGAGES (§ 37*)-DEEDS ABSOLUTE IN

FORM-EVIDENCE.

It may be shown by parol that a deed absolute in form is a mortgage, whether the deed is between the parties to the suit or is procured to be made to the grantee therein by a third person.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.*]

[Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 38.*]

15. MORTGAGES (§ 614*) — FORECLOSURE - RE

DEMPTION-LACHES.

the purchaser at the foreclosure sale to return A mortgagor who obtains a promise from the property on the mortgagor paying back the money paid with interest within three years may rely on the agreement of the purchaser, and, until the purchaser either denies or repudiates the agreement, the mortgagor is not guilty of laches and is not affected by limitations so as to bar a suit to redeem the property on the ground that the agreement is an equitable mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1822-1824; Dec. Dig. § 614.*]

Appeal from Circuit Court, Multnomah County; E. C. Bronaugh, Judge.

Suit by Frederick Bickel against Paul Wessinger and others. From a decree of dismissal, plaintiff appeals. Reversed and remanded.

In January, 1895, the plaintiff, Frederick Bickel, gave a mortgage to the United States Mortgage & Trust Company for $50,000 on block 32 in the city of Portland, the property in dispute, and afterwards on July 26, 1898,

9. MORTGAGES (§ 586*) - FORECLOSURE-DE- he gave a second mortgage on the same prop

VESTING OF TITLE.

The process of devesting a mortgagor of his title in the property is incomplete until the execution and delivery of the sheriff's deed on mortgage foreclosure sale.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 586.*]

10. MORTGAGES (8 599*) AGREEMENTS.

FORECLOSURE

Prior to the execution and delivery of the sheriff's deed on a mortgage foreclosure sale, the purchaser at the sale may agree with the mortgagor to hold the property for him and to extend the time in which to redeem.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1733-1741; Dec. Dig. § 599.*] 11. MORTGAGES (8 38*)-DEED ABSOLUTE IN FORM-EVIDENCE.

To show that a deed absolute in form was intended as a mortgage, the evidence must be

clear.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.*] 12. MORTGAGES (§ 32*)-DEEDS ABSOLUTE IN FORM AS MORTGAGES.

erty to Henry Weinhard for $10,000, evidenced by his promissory note of that date. Also on July 26, 1898, he gave another note and second mortgage to Weinhard for $10,000 on the north half of block 9 in Couch's addition to the city of Portland. In May, 1900, the United States Mortgage & Trust Company brought suit to foreclose its $50,000 mortgage on the property in dispute, making Weinhard a party defendant as a subsequent mortgagee. Weinhard made no answer to that foreclosure suit, and a decree was rendered therein against Bickel foreclosing the mortgage which he had given to the trust company and against Weinhard barring and foreclosing him from all interest in the property by virtue of his subsequent mortgage. The property was sold on execution under that decree June 30, 1900. Prior to that sale and for long afterwards the plaintiff was in financial distress. Even before the foreclosure suit the plaintiff importuned Weinhard either to buy the $50,000 mortgage or loan him the money to pay it, but Weinhard refused and put him off. Under these circumstances, Weinhard attended the execution sale and bought the property for the sum of $55,106.50, being the amount of the decree for the plaintiff in that suit. On July 12, 1900, before the confirmation of that sale, according to the testimony of the plaintiff, he visited Weinhard at his office and said to him: "I heard you [Ed. Note. For other cases, see Mortgages, have bought the property." Weinhard anCent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] swered: "Yes, but I did not buy it for my14. MORTGAGES (8 38*) - EVIDENCE SUFFI- self. I have got more property now than I Evidence held to show that an arrangement care for. I bought it." Bickel then said: between a purchaser at a mortgage foreclosure "Now, the law allows me one year to redeem

The test whether an agreement is an agreement to reconvey property on the payment of a specified sum, or a mortgage, is: Was the preceding debt extinguished, or was it continued? If it was extinguished, the arrangement is at best only a contract for the resale of the property, while, if the debt was continued, the agreement is a mortgage.

[Ed. Note. For other cases. see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] 13. MORTGAGES (§ 32*)-DEEDS ABSOLUTE IN

FORM AS MORTGAGES.

In case of doubt between a contract for the resale of property and a mortgage, the latter will be upheld.

CIENCY.

-

it. What do you say?" To which Weinhard | property in question, giving up the keys and replied: "I will give you three years, or furnishing a list of tenants and rentals. whenever you pay me back the money I will Weinhard died September 20, 1904, and until return the property-with 5 per cent. inter- his death he collected the rent, kept up the est." The testimony shows that the plaintiff taxes, repairs, and running expenses of the and Weinhard had been acquainted on very property in question, and the same has been friendly terms for many years and had loan- continued by his successors in interest. ed money to each other back and forth at different times in the past. The plaintiff claims now as his ground of suit here that he relied on Weinhard's promise, made no effort to redeem after the sale, and allowed the foreclosure proceeding to go to the execution of the sheriff's deed, and contends that the deed is an equitable mortgage, from which he brings this suit to redeem the property in dispute. The circuit court dismissed the suit, and plaintiff appeals.

The witness L. L. Schuman testifies to a conversation with Weinhard soon after the sheriff's sale, in which Weinhard stated that he had bought the property, did not care anything about buying the property of his friend, and that he would prefer not to have it at all. He said that he would sooner not have the property; but, as it was, he had to take it, and that, whenever Mr. Bickel would be in a position to pay him back, why he could have the property back.

The witness Paul Wessinger, son-in-law of Mr. Weinhard, testifies to a conversation oc

H. B. Nicholas, Newton McCoy, and Dolph, Mallory, Simon & Gearin, for appellant. Williams, Wood & Linthicum, for respond-curring between him and Weinhard after

ents.

BURNETT, J. (after stating the facts as above). There are other circumstances in evidence, but the corner stone of plaintiff's case is the conversation of July 12th already quoted. At the outset it is due to the memory of Henry Weinhard to say that the record does not disclose that he ever did an act or uttered a word inconsistent with the statement thus attributed to him by plaintiff. Further, so far as the record reveals, there is no showing whatever, as against any of the parties, of that cunning craftiness and deceit which makes fraud so detestable to honest men. The attitude of all these litigants seems to be that of those who, not having the same viewpoint on account either of interest or prejudice or want of knowledge of the facts, have misapprehended the consequences which in equity follow from substantially admitted facts.

the execution of the sheriff's deed substantially as follows: Weinhard said: "Well, now, I hear from Adolph Burkhardt that Bickel says around town I took his property away from him." Wessinger said: "Well, that is all foolish talk." Weinhard answered: "Well, of course it is. I will give Mr. Bickel another year to pay me back and get his property back, and that will stop that talk"-or something to that effect. It may be remarked in passing, that plaintiff denies making any such statement as that attributed to him by Burkhardt.

The witness D. W. Hoelbing testifies that in the latter part of 1900 or the first part of 1901 Mr. Weinhard told him that he had been induced to allow Mr. Bickel another year for selling this property as his agent, and that he should receive all the proceeds above what he owed him and the expenses of improving the buildings.

Mrs. Louise Weinhard, widow of Henry Weinhard, testifies: "When Mr. Burkhardt told Mr. Weinhard that Mr. Bickel scolded about that we have taken his property away, he says: 'Well, after this one year is passed he can have it another year.'"

It is impracticable to make extended quotations from the voluminous testimony in this case. It will be sufficient to advert to a few of the more salient points. On July 12, 1900, the plaintiff paid the interest to July 10th of that year on both the $10,000 The testimony discloses that at the time notes already mentioned. The note for the of and subsequent to the sheriff's sale for loan and second mortgage on block 32 was several years there was but little demand retained by Weinhard, and so far as the for real property of the kind in question; evidence shows was never surrendered to the that plaintiff tried in vain to effect a sale plaintiff. Indeed, on a subsequent occasion of the property, and so the matter went on when the plaintiff settled the mortgage on until January, 1906, after the death of Weinthe property in block 9, the surrender of the hard, the plaintiff took up with the defend$10.000 note secured by the second mortgage ants the subject of redeeming the property, on block 32 was discussed in a spirit of ad- which defendants declined to consider. Aftjustment of the dealings between the parties; erwards, on April 12, 1907, the plaintiff made but, failing to agree upon such adjustment, a formal written offer to redeem and dethe defendants here retained the note se-manded an accounting of the rents and profcured formerly by the mortgage on block 32, standing upon what they conceived to be their legal rights, and surrendered only the $10,000 note secured by the mortgage on the property in Couch's addition. At the time of paying the interest to July 10, 1900, the

its of the property for the purpose of arriving at the amount necessary to redeem the same.

The defendants here contend in argument that the evidence of the plaintiff does not conform to the pleading. It is true that some minor matters alleged by way of inducement

in by some third party. The line of authorities in Oregon, ample on that subject, begin with Hurford v. Harned, 6 Or. 362, and continue in uninterrupted sequence to Hall v. O'Connell, 52 Or. 164, 95 Pac. 717, 96 Pac. 1070.

Weinhard was willing and able to furnish | or procured to be made to the grantee therethe money; but the evidence in the main, taking the whole case, corresponds to the pleading in its general scope and meaning, so that there is no substantial variance between the pleadings and the evidence which could mislead the defendants to their hurt. Indeed, it was not disclosed, so far as the record shows, that they were so misled.

It is next contended that there is no mutuality in the contract between plaintiff and Weinhard. The plaintiff was seeking the extension of time which he says Weinhard granted. By the foreclosure suit Weinhard's mortgage lien upon the property in question was extinguished on his default. Notwithstanding the sale, the plaintiff had an equity of redemption at all times prior to the execution of the sheriff's deed. Thus equipped with an asset freed from all claim except the sale price, he approached Weinhard and secured from him the extension of time disclosed by the conversation already quoted. These circumstances disclosed by the evidence are competent to prove the implied promise of the plaintiff to refund the money in consideration of the extension of time. Moreover, a forbearance to redeem the property was a sufficient consideration to support the promise to extend the time. Beebe v. Wisconsin Mortgage Loan Co., 117 Wis. 328, 93 N. W. 1103.

The authorities are abundant that at any time prior to an execution sale a debtor may make a parol agreement, even with the creditor, that the other party to the agreement shall take the title in his own name and hold the same as security for the debt and extend the time for payment. The situation is not different in principle after the sale and prior to the execution of the sheriff's deed. The process of divesting the judg ment debtor of his title in the property is incomplete until the execution and delivery of the sheriff's deed, so that it matters not whether the parol agreement was made before or after the sheriff's sale, provided it is made prior to the execution of the deed. Equity regards the rights of a distressed debtor with almost guardian like care, and, while, it requires clear proof of a parol defeasance of a deed absolute in form, yet, when the defeasance clause is once shown, equity will go to the utmost in affording relief, and in cases of doubt between a mortgage and a conditional sale will almost always decide the question in favor of a mortgage. Plummer v. Isle, 41 Wash. 5, 82 Pac. 1009, 2 L. R. A. (N. S.) 627, 111 Am. St. Rep. 997.

It is further urged that the alleged contract is not in writing, is not to be performed within a year, and is therefore void within the statute of frauds. Section 808, L. O. That some arrangement looking to the exL, makes void "an agreement that by its tension of the time and the restoration to terms is not to be performed within a year plaintiff of the property in dispute existed from the making thereof." It is only where is manifest from the evidence already alludthe agreement shows by its terms or within ed to. It is true that plaintiff is the princithe contemplation of the parties that it can- pal witness in his own behalf, and stands not be performed within a year that the alone as to the principal testimony in the statute intervenes. It was possible for Bick-case; but by law he is a competent witness. el, so far as the terms of the contract are He submitted to searching cross-examination. concerned, to have redeemed this property No successful effort is made directly to disthe next day after the agreement was made. credit him by any witness, and no attack No restriction appears to have been made in is made upon his reputation for truth and that respect. The time was extended, but veracity. He is corroborated by the testiit was competent for him to redeem without mony of disinterested witnesses and by adsuit at any time prior to the expiration of missions of at least one of the defendants. the three years mentioned. Devalinger v. The testimony is convincing, as before statMaxwell, 4 Pennewill (Del.) 185, 54 Atl. 684; ed, that some arrangement existed between Durham v. Hiatt, 127 Ind. 514, 26 N. E. 401; Weinhard and the plaintiff. It is urged that Southwell v. Beezley, 5 Or. 143, 459. the agreement is one not likely to have been made by Weinhard; that he would not extend the time and take for security a property which he had bought at a sheriff's sale and upon which he had allowed his lien by mortgage to be extinguished by default. The agreement might be improvident from the standpoint of a miser, but not from the standpoint of a generous and munificent friend. The testimony shows that Weinhard was taciturn and reserved, but underneath that grave exterior he was large-hearted and magnanimous. What is more natural than that such a man would go to the ut

It is further contended that this suit, being based upon the alleged contract for the sale of land, is void because it is not in writing. This is not a suit for the specific performance of a contract for the sale of land. It is a suit in equity to declare a deed absolute on its face to be a mortgage and to be allowed to redeem the real property therein described. This contention may be dismissed with the statement of the wellestablished principle that it is competent to show by parol that a deed absolute on its face is intended to be a mortgage, whether