(203 P.) satisfaction of the debt, in consideration of which the defendant company released and discharged the indebtedness. There appears in evidence the deed from the plaintiff and his wife to the Simpson Estate Company, conveying the property to the latter, as stated, containing the covenant of the present plaintiff to warrant and defend the property against all incumbrances, except unpaid taxes and the mortgage for $29,695, dated May 27, 1915. At the same time, as part of the same transaction, the defendant Simpson Estate Company executed and delivered to the plaintiff an option in writing giving to the plaintiff the sole right and choice to buy the real property involved upon the payment by the plaintiff to the Simpson Estate Company on or prior to December 31, 1919, the sum of $33,500. It is stated in the option that one of the considerations for the granting of the same is the execution of a lease of the premises from the Simpson Estate Company to Carter and a payment of the rent reserved therein. A copy of the lease also appears in the record, and finally this document, executed at the same time, is admitted by the plaintiff to have been signed by himself and his wife: ence and in force after the absolute conveyance. In this instance the plaintiff freely admits the execution of all of the documents herein mentioned, and their delivery to the defendant. He was asked this question: "Did you receive back your note and mortgage? A. That is a matter that I don't have any remembrance of getting the mortgage back. "Q. Did you receive back that note? A. The attorney might have gotten it, but I do not remember about that. "Q. Do you know whether or not the note was released to your attorneys? A. No; I do not. "Q. Do you know whether the mortgage was released of record? A. I think the record shows that it was released later on." He testifies that he paid nothing after the lease was given except the rent. He also testifies that he made some improvements on the land with the consent of the Simpson Estate Company, the expense of which was deducted from the rent. Although he says his attorney did not turn over to him any papers in regard to releasing the mortgage, when asked if the attorney ever turned over to him any note, he answered, "No, sir; not at that time." On the other hand, the "Know all men by these presents that we, attorney who was conducting the foreclosure Cecil C. Carter and Alta E. Carter, of Coos suit on behalf of the Simpson Estate Comcounty, state of Oregon, for and in considera-pany testifies in substance that in pursuance tion of the sum of one dollar, lawful money of the United States of America, to us in hand paid by Simpson Estate Company, a corporation, organized and existing under and by virtue of the laws of the state of California, have remised, released and forever discharged, and by these presents do, for ourselves, our heirs, executors and administrators, release and forever discharge, the said Simpson Estate Company and also Simpson Lumber Company, a corporation organized under the laws of the state of California, and each of them, from all claims and demands of every kind, nature, and character, which against the said Simpson Estate Company or the said Simpson Lumber Company, or either of them, we or either of us ever had or now have for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of these presents." In its tenderness for debtors, equity has gone to great lengths and has firmly established the doctrine that a deed absolute on its face may be shown by parol to be really and truly a mortgage to secure the payment of a debt from the grantor to the grantee; in other words, for that purpose it is competent to prove by parol a defeasance of a of negotiations to settle the matter, at the request of the attorney for defendant there, plaintiff here, he sent the satisfaction of the mortgage and the note to a bank at Myrtle Point as a depositary, to be delivered to the other attorney on receipt of the first installment of the rent under the lease, which money was to be forwarded to the witness, and that he received the amount afterwards. The effect of this testimony is that the defendant company gave up the note and mortgage. It has no means of enforcing the claim against the plaintiff, having executed and delivered the satisfaction of the mortgage and given up the note. Another circumstance indicating that the instrument denominated an option was really what it purported on its face to be is that at the time of the execution of the option to this plaintiff to buy the land at $33,500 there was due on the note and mortgage the sum of $35,178.68, computing the interest at 6 per cent. per annum on the original note from its date until the date of the option. All of these circumstances indicate the extinction of the debt, so that the company cannot enforce the same against the plaintiff. As to the prima facie absolute deed. On the other further extension of the time to February hand, it is equally competent for a mortgagor 1, 1920, the plaintiff himself testifies that to convey to the mortgagee any real property before the expiration of the option on Decemin payment and discharge of the mortgage debt. In the very nature of the term, there can be no mortgage unless there be also a debt to be secured by such mortgage, and representatives. courts have laid hold of very slight circumstances to show that the debt was in exist ber 31, 1919, he endeavored to get a further extension of time, but that in each instance he was refused by the defendant company's [1, 2] In another aspect of the case, although it is permissible to establish by parol Eugene Ashwill, of La Grande, for appellant. J. W. McCulloch, of Ontario (W. W. Wood, of Ontario, on the brief), for respondents. RAND, J. The plaintiff asserts in a pe tition for rehearing that two of the reasons assigned in dismissing plaintiff's complaint are incorrect and erroneous. As one of these points is in our opinion decisive of the case, we will confine our consideration to that alone. This proposition is stated in the original opinion as follows: "Again, if everything appearing in the record had been included in a written contract signed by both parties, this suit would fail, because there is no sufficient description of the property to be affected by the contract to be found anywhere therein." a defeasance of the deed, or, in other words, to show that it was a mortgage, yet, when the parties themselves put into writing the means by which the effect of the deed may be obviated and the title returned to the grantor therein, those writings supersede any oral understanding. In other words, they contain the terms of the contract, the effect of which cannot be avoided unless the validity of those very instruments is attacked for fraud or mistake. Or. L. § 713. No question is made in this case but that the deed, the option, the lease, and the above-quoted release were all executed by the parties, as appears on the face of those instruments. No fraud or mistake is intimated in the pleadings, and we can do naught else than enforce according to their legal effect the writings which the parties have made. The testimony that the land is much more valuable than what would be due upon the original indebtedness appeals strongly to any one reading the record, but we cannot change the law. In short, it is a case where the debtor has conveyed the property in satisfaction of his debt, and the creditor has discharged the debt. The release given by the plaintiff and his wife is sweeping in its terms. Read in connection with the other documents executed at the same time and as a part of the same transaction, it unmistak-ment was denied by the defendants. To esably discharges the Simpson Estate Company and its assignor from all claim which the plaintiff had against either of them to redeem the property. The record has been carefully read and reread, with a view of ascertaining any basis for the plaintiff's relief, but none can legally be found. The decree must be firmed. af MCBRIDE, HARRIS, and RAND, JJ., concur. (103 Or. 103) WOOLSEY v. DRAPER et ux. (Supreme Court of Oregon. Jan. 17, 1922.) Frauds, statute of 110(1)-Writings referring to vendor's seven lots insufficient as not showing which of his eight lots were meant. In order to make ourselves clear upon this point, it will be necessary to restate some of the facts upon which that holding was based. In substance, the complaint alleged that the plaintiff and the defendants entered into an agreement by the terms of which the defendant agreed to convey to the plaintiff 8 lots in Ontario, Or., in exchange and as part payment for one-half section of land in the state of Montana. The making of the agree tablish the issue thus raised, the plaintiff offered in evidence three documents, consisting of one telegram and two letters, he also testified to what he claimed was signed by M. I. Draper the defendant; and agreed to by himself and Draper at Ontario by parol. Other letters signed by Draper were offered, but they contain no reference to the Ontario property, and therefore can have no bearing upon this question. The first of the two letters referred to was written to the plaintiff by Draper at Custer. Mont., and was dated May 29, 1918, and merely stated that he had "some good income property in Ontario, Or.," which he would like to trade to the plaintiff for the lands owned by the plaintiff in Montana, and that he was going to be at Ontario in a short time, and would like to show the property to the plaintff, who was then at La Grande, Or. The plaintiff replied, and asked Draper for the price and description of the property. No other communication passed between them until June 13th, when Draper, who had gone to Ontario, sent the telegram, copied in the main opinion. Upon its receipt plaintiff' went to Ontario, met Draper, saw the property, and as he testified, entered into a parol contract with him. All of the testimony which he gave as to the parol agreement is copied in full in the main opinion. No other Petition de witness testified concerning the making or the terms of the parol agreement. Writings referring to the vendor's seven lots in a certain town held not sufficient under the statute for enforcement of a contract to sell seven lots, where he owned eight lots therein, any seven of which might have been the subject of the contract. In Banc. from Circuit Court, Malheur County; Dalton Biggs, Judge. On petition for rehearing. nied. For former opinion, see 201 Pac. 730. The second letter referring to the Ontario For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) property is also copied in full in the main seven, and there is no evidence of any kind, opinion. An inspection of the two letters and telegram discloses that in the first letter Draper refers to his Ontario property in these words "some good income property in Ontario, Or." In the other letter his reference is "Less $3,500 value of my Ontario property," and "I will guarantee the house I showed you are the ones I own in Ontario, Oregon." The description given in the tele gram is: "I have four three-room houses and five lots in one block in the best part of town. One four-room house and two lots in another block." In his testimony concerning the terms of the alleged parol agreement the plaintiff did not mention lots at all, but he testified that he was to receive five cottages in Ontario, Or., and a water right covering four of these cottages and the rent of the five cottages from that date. So it will be seen that the only attempt to describe the property which Draper was to convey is to be found in the telegram, and the number of lots is there given as seven, and not eight, as alleged in the complaint. So if we assume for the purposes of this discussion that the telegram which was sent prior to the time when the parol agreement was made and which it is not claimed was ever accepted by parol or in writing, can be used as an aid to take this contract out of the operation of the statute, and if we assume that the phrase to be found in Draper's letter of August 19th, "Less $3,500 value of my Ontario property" with the aid of the telegram fills the requirements of the statute, then we have a writing signed by Draper in which he describes the property he is willing to trade as consisting of seven lots, while, if we abandon the telegram as a means by which we are to determine the description of Draper's property, then we have no description at all. Now it will be noted in this connection that the suit is to compel Draper upon an alleged contract to convey eight lots and not seven. Upon the trial the plaintiff offered and introduced in evidence certified copies of two deeds, one from Carlile and wife, conveying to Draper three lots in the town of Ontario, and one from Plughoff and wife, conveying to Draper five lots in Ontario. The defendant called several witnesses, who testified that Draper was in possession of and was at the time engaged in renting the identical lots so conveyed to him by Plughoff and Carlile. As the case stands, it is undisputed that Draper owns and is in possession of eight lots at Ontario, Or., and that he never signed any writing in which he referred to the sale of any number of lots, except either in parol or by writing, tending to show that he ever contracted to sell eight lots. Hence if the evidence was held to be sufficient to authorize the enforcement of the alleged contract as the contract which the plaintiff attempted to prove only related to the sale of seven lots, and as the plaintiff has wholly failed to offer any proof which tends to establish what lots constitute the seven lots involved, and having proved that the defendant owned eight lots, any seven of which might have been the subject-matter of the contract claimed, there is no possible manner in which the court can determine from the evidence to what lots the alleged contract referred. While if it should be found that there was a contract for the sale of eight lots instead of seven, then such contract is wholly in parol and within the operation of the statute. On August 7th a letter to which reference has not been made herein was written by plaintiff to the Custer State Bank, stating, in effect, that the plaintiff was to receive the sum of $6,400 for his half section of land and a deed for eight lots at Ontario. The eight lots are fully described in the letter by numbers and blocks. In defendant's letter of August 19th above referred to, the defendant complains of plaintiff's instructions to the bank, requiring him to pay $6,400 because of the fact that the acreage of the half section was less than 320 acres. Defendant's letter refers to the instructions given to the bank by the plaintiff, but does not mention or refer to plaintiff's letter at all. On July 27th the plaintiff also wrote a letter of instructions to the bank, in which he made the same statement as to the amount he was to receive for his land, but containing no description of the Ontario property. There is no evidence that the defendant ever saw either of these letters or knew their contents. Defendant's letter of August 19th makes no reference to anything except to plaintiff's instructions to settle with the defendant upon the basis of $6,400 as the price of the land. This information could have been imparted by the bank, either by telling the defendant the amount he would be required to pay, or by showing him the letter of July 27th, or by showing the defendant the letter of August 7th. There is no admission contained in defendant's letter of August 19th bearing upon the question involved, As this question is decisive of plaintiff's right to recover, it is unnecessary to allude to any of the other points raised upon the petition for rehearing, and for the reasons stated, the same will be denied; and it is so ordered. (103 Or. 117) SAVILLE v. SAVILLE. (Supreme Court of Oregon. Jan. 17, 1922.) 1. Divorce 48-"Condonation" defined. "Condonation" is the forgiveness of a matrimonial offense upon condition that the of fense will not be repeated and the offender will thereafter treat the injured spouse with conjugal kindness. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Condone; Condonation.] 2. Divorce 99-Decree may be denied where offense has been condoned, though condonation has not been pleaded. In her complaint plaintiff charges defendant with cruel and inhuman treatment, and, specifying the same, alleges, in substance, that in August, 1919, the defendant, without cause or provocation, grabbed the plaintiff, pushed her up against the wall, and shook her and dug his finger nails into her back, and that on or about December 26, 1919, defendant struck and beat the plaintiff and threw her onto the floor. Defendant in his answer admits that he did upon two occasions, those mentioned in plaintiff's complaint, slap plaintiff in the face. Defendant seeks to avoid the effect of the foregoing admission by an affirmative defense, pleaded as follows: "That subsequent to any of the dates and Where it is clearly shown by the evidence that the matrimonial offense has been condoned, the court may deny a decree of divorce, al-times set forth in said complaint, and subsethough defendant has not pleaded the condona tion. - 3. Divorce 49(2) Condonation Implied from continuance of cohabitation, except where wife cannot leave at once through fear or circumstances. quent to the times when defendant so slapped said plaintiff as hereinbefore expressly admitted, and though having knowledge thereof, plaintiff has many times voluntarily cohabited with defendant, thereby impliedly forgiving defendant of such acts aforesaid." made upon this appeal relates to the issue of condonation thus raised by the pleadings. In the absence of statute controlling the By her reply plaintiff interposed a general matter, condonation of acts of cruelty relied denial to the affirmative matter contained in upon to obtain a divorce will sometimes be im-defendant's answer. The chief contention plied from the continuance of marital cohabitation after the acts were committed, but, since condonation must be a voluntary act, continued cohabitation will not be construed into forgiveness, where through fear or the circumstances surrounding her the injured wife cannot leave at once. 4. Divorce 49 (7)-No condonation, except as to adultery, in absence of express forgive ness. Under Or. L. § 510, condonation of a matrimonial offense, except adultery, cannot be established by implication from the voluntary cohabitation of the parties after knowledge thereof, but to constitute a bar for any causes of äivorce named in the statute, except adultery, the offense must have been expressly forgiven. 5. Divorce 99-Husband to establish de It appears in the evidence that plaintiff and defendant intermarried August 16, 1905, at Vermillion, in the state of South Dakota : that there are three children born of the marriage, a daughter aged 13 years and two sons aged 10 years and 2 years, respectively; that plaintiff and defendant resided in the state of South Dakota after their marriage until the year 1916, when they removed to Oregon; that the parties had separated for a few days a short time before they removed from South Dakota to Oregon; plaintiff testified that at that time defendant applied physical violence to her. However, plaintiff and defendant became reconciled, and removed to fense of condonation of cruelty must plead Oregon and took up their residence near Euand prove express forgiveness. gene, in Lane county, where they have since resided. Wife suing husband for divorce because of cruelty held not to have condoned cruelty, in absence of pleading and proof of express forgiveness, under Or. L. § 510, subd. 4. Department 2. During their residence in Oregon, plaintiff and defendant have had frequent quarrels, but, so far as disclosed by the evidence, such quarrels arose over trivial matters. On these occasions defendant displayed a hot temper Appeal from Circuit Court, Lane County; and a disposition to assault and beat plainG. F. Skipworth, Judge. Action by Nettie Saville against R. E. Saville. Decree for plaintiff, and defendant appeals. Affirmed. Defendant appeals from a decree in favor of plaintiff, dissolving the marriage contract between plaintiff and defendant, awarding the custody of their three minor children to plaintiff, and requiring defendant to pay plaintiff $25 a month for the support and maintenance of the children. tiff. Defendant admitted on the witness stand that in August, 1919, he slapped plaintiff in the face. Plaintiff testified to the same incident, and stated that defendant knocked her down. Defendant also testified that on December 26, 1919, he again slapped plaintiff in the face; while plaintiff asserted that on that occasion defendant knocked her down and beat her, and that her face was black and blue on the left side where defendant struck her. Plaintiff was corroborated in her testimony as to the condition of her face at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) that time, but defendant denied that the in- [ and Separation, vol. 1, § 450; 19 Corpus Juris, jury to her face resulted from blows admin- 83. istered by him. [2] Where it is clearly shown by the evidence that a matrimonial offense has been condoned, the court may deny a decree of divorce, although defendant has not pleaded the condonation. Hill v. Hill, 24 Or. 416, 33 Pac. 809. At that time plaintiff and defendant were residing upon a rented farm about 31⁄2 miles from Eugene. Their dwelling place was situated a mile and a quarter from the main highway, and was reached by a rough road, which in the wet season contained many mud- [3] In the absence of a statute controlling holes and much standing water, and was the matter, condonation of acts of cruelty difficult to travel, even on foot, in the winter relied upon to obtain a divorce will sometimes time. During the winter and spring plain- be implied from the continuance of marital tiff, on Saturday of each week, carried butter cohabitation after the acts were committed and eggs to Eugene and sold the same, pur-(Schouler on Marriage, Divorce, Separation chasing necessaries for the family with part and Domestic Relations [6th Ed.] vol. 2, §§ of the proceeds and feed for the stock with | 1695, 1701; Shirey v. Shirey, 87 Ark. 175, 112 the remainder thereof. The last occasion upon which defendant struck plaintiff was December 26, 1919. Plaintiff continued to reside with defendant and their three children, and to cohabit and sustain the usual marital relations with defendant, until June 9, 1920, when plaintiff left defendant and removed to Eugene, taking with her the three minor children of the parties and most of the household goods and effects; thereafter she commenced this suit. The parties do not appear to have had any serious difficulty between December 26, 1919, and the time plaintiff left defendant. Plaintiff testified that she did not leave defendant sooner after he assaulted and beat her on December 26, 1919, because there was no way of getting out; that she could not carry the baby out that mile and a quarter; that she could not carry the suitcase out there with her butter and eggs; that she was waiting for an opportunity to leave; that she was afraid to leave, because if defendant had known she was going to go he would have knocked her down; he did not want her to McCOURT, J. (after stating the facts as above). [1] Condonation is the forgiveness of a matrimonial offense upon condition that the offense will not be repeated, and that the offender will thereafter treat the injured spouse with conjugal kindness. Eggerth v. Eggerth, 15 Or. 626, 16 Pac. 650; Bishop on Marriage, Divorce and Separation (5th Ed.) vol. 2, §§ 269, 308; Schouler on Marriage, Divorce, Separation and Domestic Relations (6th Ed.) vol. 2, § 1690; Nelson on Divorce S. W. 369); but even in those cases, since condonation must be a voluntary act, continued cohabitation will not be construed into forgiveness, where through fear or the circumstances surrounding her the injured wife cannot leave at once (Hickman v. Hickman, 188 Iowa, 697, 176 N. W. 698, 14 A. L. R. 929, and note, where a large number of cases to the foregoing effect are collected). [4] In this state condonation of a matrimonial offense, except adultery, cannot be established by implication from the voluntary cohabitation of the parties after knowledge thereof. To constitute a bar for any of the causes of divorce named in the statute, except adultery, the offense must have been expressly forgiven. The statute (section 510, O. L.), provides: "In a suit for the dissolution of the marriage contract on account of adultery, the defendant may admit the adultery, and show in bar of the suit * that the act has been expressly forgiven, or impliedly so, by the voluntary cohabitation of the parties after knowledge thereof." Subdivision 4 of the same section provides that, when the suit is brought upon the ground of cruel and inhuman treatment, “the defendant may admit the charge, and show in bar of the suit that the act been expressly forgiven." has The California statute provides that in cases of divorce upon the ground of cruelty: "Cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone." Civ. Code, § 118. It is there held that express forgiveness is essential to establish condonation constituting a bar to a divorce for cruelty, and that the same will not be implied from continuance of cohabitation. Whinnery v. Whinnery, 21 Cal. App. 59, 130 Pac. 1065; Hunter v. Hunter, 132 Cal. 473, 64 Pac. 772; Morton v. Morton, 117 Cal. 443, 49 Pac. 557; Smith v. Smith, 119 Cal. 183, 48 Pac. 730, 51 Pac. 183; Johnson v. Johnson, 4 Cal. Unrep. 446, 35 Pac. 637. |