Manaudas v. Heilner , 29 Or. 222 ( 1895 )

Opinion by

Mr. Justice Moore.

The only question presented by the appeal is whether the facts stated in the complaint are sufficient to constitute a cause of suit. The plaintiff having set forth the terms of the decree in Manaudas v. Heilner and Cohn, 12 Or. 335, an examination of the opinion of the court in that case becomes necessary. It was there decided that the defendants were trustees, and held the legal title to certain property for the plaintiff, and it was decreed that they should reconvey the same to him. Thayer, J., in speaking of the property transferred by Manaudas to Heilner and Cohn, which was the subject of that suit, says: “A good deal of. the property included in the instrument by which the transfer was made to the appellants was never delivered to them, nor did they have possession thereof. That property, of course, should not be included in the decree for a reconveyance.” And speaking of the property which had been sold to Benson, the learned justice says: “ Nor should the property that has been sold by appellants, where the respondent has been credited with the price, be decreed to be reconveyed, except upon condition that respondent pay such price.” The repayment of this purchase price thus becomes a condition precedent to the maintenance of this suit, and, since the plaintiff has not alleged such repayment, his complaint fails to state facts sufficient to constitute a cause of suit, and the court committed no error in sustaining the demurrer. It follows that the decree is affirmed, and the suit dismissed. Affirmed.