Dechenbach v. Rima ( 1908 )

Mr. Justice Eakin

delivered the opinion of the court.

1. Defendant’s answer, in which he tenders the money into court, was filed August 29, 1903, and his contention is that the tender was only a conditional tender as part payment upon the parol contract; but it is not'so alleged. Plaintiff’s right of recovery under the forcible entry and detainer action depends upon the conditions as they existed when the complaint was filed, and it was based upon the expiration of Lake’s lease and the notice to quit, served June 25th, and had no reference to nonpayment of rent by either Lake or defendant. If the circumstances under which the parol lease was made constituted an estoppel, it was such without reference to the tender of the rent money, because the court in a forcible entry and detainer action can only determine plaintiff’s right to immediate possession, and cannot decree specific performance or adjudicate defendant’s rights otherwise than as affecting the plaintiff’s right of possession at the time of the filing of his complaint. But at the time defendant filed his answer he had had the possession of the premises two months, lacking two days, and in effect admits that he owes for these two months, and by the answer deposits the mpney for the plaintiff. This had the effect of placing the money in the custody of the law, and defendant cannot withdraw it without the consent of plaintiff. It does not stand in the position of a tender of purchase money made contingent upon acquiring title in a suit for the specific performance of the sale of real estate.

2. This is money apparently already earned, and tendered unconditionally, and plaintiff’s right to it does not depend upon whether defendant is successful in enforcing the parol contract. Where an unconditional tender of money is made by a party, and the same deposited in court, the money is the property of the party for whom it is so tendered: West Portland Park Ass’n v. Kelly, 29 Or. 412 (45 Pac. 901); O. R. & N. Co. v. Oregon R. E. Co. 10 Or. 444.

Therefore there is no error in the order of the court, and the same is affirmed. • Affirmed.