McMinnville, on the brief), for appellants. [ "make the diagnosis of general paresis." At Frank Holmes, of McMinnville, and Chas. L. first he was in a condition of mental exMcNary, of Salem (B. A. Kliks, of McMinn-citement; but when he was released on Febville, on the brief), for respondent. ruary 26, 1898, his condition was much improved, and he had returned to "a comparaHARRIS, J. (after stating the facts as tively sane condition of mind" and "had above). [1] Hattie M. Ditmars asserts that already entered a remission," and, in the the deed which John A. Ditmars and wife opinion of Dr. L. F. Griffith, who has been executed on July 19, 1899, to James H. connected with the asylum, except one year, Shipley was invalid for the reason that her since 1890, and was a member of the medical father was, at that time, mentally incom- staff in 1897 and 1898, "he was capable to petent, and that therefore she is the own- do ordinary things at that time." Soon after er of the land as his daughter and heir. The his return home he resumed the management daughter cannot successfully claim any in- of his farm, going about much as the orditerest in the land unless at the time of the nary person does; and, while he had "spells" execution of the deed her father did not which left him in a stupor on different occomprehend the nature of the business. Men-casions, he nevertheless continued to conduct tal capacity at the time of signing a con- the business of the farm until a comparaveyance sufficient to comprehend the nature tively short time before being taken to the of the business in which the person is then private sanatorium in May, 1900. engaged is the standard fixed by the law for James H. Shipley was a neighbor who livdetermining the competency of the person ed "about a couple of hundred yards from" signing the document. Carnagie v. Diven, 31 the Ditmars home. About ten days before Or. 366, 369, 49 Pac. 891; Swank v. Swank, the sale Ditmars asked Shipley if he 37 Or. 439, 445, 61 Pac. 846; Wade v. North- "wouldn't like to buy a piece of land," exup, 70 Or. 569, 578, 140 Pac. 451. plaining to Shipley that: he could sell that piece of land when he got that "He had a mortgage on his own place, and if he would turn it in on his own mortgage on the farm, and it would help him out to get some tools to farm with and other things he needed on the farm at the time." "The next time I met him down in the river bottom, he asked me, 'What about that trade? and I told him we would go down the next Sunday and measure it off and look it over; so we did." [2] We must now look to the evidence and! ascertain whether, on July 19, 1899, John A. Ditmars knew the nature of the business in which he was then engaged, and fully understood the effect of the transaction. Some years prior to 1897 he contracted a disease which in turn produced general paresis. The Shipley told Ditmars that he would make medical witnesses agree that paresis is incur-up his mind a little later, and the former tesable; and, while it inevitably causes death, tified that: the patient will ordinarily live from two to five years. The mind is never again normal after paresis seizes its victim, and consequently complete lucidity becomes impossible. While a recovery never occurs and rationality never again becomes normal, the patient may nevertheless pass through periods of remission, lasting from several weeks to months and occasionally for a year or more, during which it may be difficult or almost impossible to discover any trace of a deviation from normal mental health, and the patient can return to his affairs. Dr. W. T. Williamson, who was for 17 years a physician at the Oregon State Insane Asylum and has made a study of nervous diseases for about 28 years, when a witness for the defendant, said that he believed "a person suffering from general paresis would be able to do business more or less, and whether he was competent to do any given thing would have to rest upon the proof of his competency at the time, adduced from a series of events." Dr. L. F. Griffith, who was a witness for plaintiff, expressed the opinion that the best method to determine the mental capacity of a paretic is to ascertain "whether he was reasonable in the ordinary affairs of life, his conduct about-going about the affairs of life in an ordinary, reasonable manner." When Ditmars was received at the insane asylum in 1897 the physical signs of the disease had not yet developed, and consequently In company with another person they meassured off the land "about where the line would come to." They agreed upon a price of $1,600, which was to be on terms of $600 cash and a note and mortgage for $1,000. The land was not reasonably worth more Ditmars said the than the agreed price. whole farm was leased, but Shipley told him if he "could get possession, the price and terms was satisfactory." Shipley arranged with the lessee for possession of the land, and then "told Ditmars I guessed we could trade and make the deal," and paid $10 to apply on the purchase price. Ditmars and his wife, accompanied by Shipley and his wife, drove to McMinnville for the purpose of making a conveyance. When they arrived in town Ditmars and Shipley obtained a description of the 80-acre tract from a surveyor who had made a survey for Ditmars and an adjoining land proprietor. After obtaining a description of the land, they went to an office, where the conveyance was prepared. Ditmars and his wife signed the deed and received a check for $590, together with a note and mortgage for $1,000, signed by Shipley and wife. Ditmars cashed the check on the day he received it, and deposited $500 of the question never entered my mind but what he was as sane as any man could be." This witness knew that Ditmars had been in the asylum, and on that account it is fair to as sume that any peculiar or unusual conduct on the part of Ditmars would have been noticed. mortgage were filed for record within two competent to transact business," and "the hours of the time of delivery, and the Ditmars, accompanied by the Shipleys, then returned to their homes. John A. Ditmars neither said nor did anything unusual when going to or returning from McMinnville. The notary public who witnessed the deed and took the acknowledgment of the grantors tes- The evidence shows that John A. Ditmars tified that Ditmars "acted in a rational man- comprehended the business in which he was ner about signing the deed and answering engaged, and understood the nature and efquestions as to whether he made it of his fect of the transaction when he signed the free will and accord," and "was sane and deed. He had a good reason for selling the rational and in good condition to transact land; he went about the business in a reabusiness." The second witness to the deed sonable manner; and he received the full did not notice anything unusual. Shortly be- market value of the land. His mentality fore the sale Ditmars told L. A. Byrd that measured up to the gauge which both medical "he was going to sell that piece of land; that experts applied. He possessed a sufficient would put him out of debt, and he would understanding to meet the test fixed by the have plenty of land left." John Ross work-law, and the deed to Shipley was therefore ed for Ditmars, and heard him say he was going to sell. Ditmars wanted to sell the 80 Although it is not necessary to proceed furacres to Thomas Collinson, but the latter ther with the discussion, yet a better undercould not buy because he had no money, and standing of the surroundings may be had if two or three weeks later Ditmars told him we again look at the record. Some light is that he had sold the property, and was satis- thrown upon the attitude of Tillie Ditmars fied with the sale. Frank Ditmars said that Kirkwood and the position now taken by the his brother was running his own business in defendant when it is recalled that no assault 1899, and that he noticed nothing peculiar was made upon the deed until the commencewith John after he came back from the ment of the action in 1913 to eject Magness; asylum until about two weeks before the and no claim was ever made, or even intimatsecond commitment. Fifteen different wit-ed, that Ditmars was incompetent to sign the nesses, who had either worked for John A. deed until 1911, when, according to the testiDitmars or around him, or had bought live mony of the plaintiff, Mrs. Tillie Ditmars stock from or had sold live stock to him, Kirkwood told him that: testified that he was sane or competent, or that he appeared rational, or that they noticed nothing peculiar about him. Ditmars transacted important business both before and after the execution of the deed to Shipley. On October 12, 1897, Ditmars received the Sawyer deed, and at the same time executed the Hunsaker mortgage. The notary public who witnessed and took the acknowledgment of Sawyer to the deed did not notice anything wrong with Ditmars and the person who acted as the second witness to the Sawyer deed and who also witnessed and as notary public took the acknowledgment of Ditmars to the Hunsaker mortgage testified that: "During this transaction, Mr. Ditmars conducted himself in a rational way. I could see nothing wrong with the man's actions, and we talked over the business." The Forrest mortgage was executed by Ditmars and his wife on October 14, 1899, and at that time, according to the testimony of M. D. L. Rhodes, who acted as notary public and as a witness to that instrument, Ditmars comprehended the business; and Judge E. V. Littlefield, who also witnessed the mortgage testified that Ditmars "was 160 P.-34 valid. the right of way) she would bring this suit "If I went ahead with the suit (concerning against me for the property on the grounds that Ditmars was not capable of making a deed." For a period of 12 years Mrs. Tillie Ditmars Kirkwood, the widow of the deceased, the administratrix of his estate and the guardian of his child, recognized the validity of the deed, not only by her failure to object, but also by her positive acts of approval. She signed the Forrest mortgage which excepted the 80 acres sold to Shipley; she affirmed the deed when she satisfied the Shipley mortgage on December 19, 1901; she did not claim any right to the land as guardian, nor assert any interest in it as administratrix; and she acknowledged the validity of the deed when as an individual and as guardian she signed the stipulation which authorized the decree in the right of way suit for the very basis of the right to a way was the deed itself. She has never questioned the validity of the deeds conveying 253 acres to Ditmars in 1897, nor has she ever claimed that the Hunsaker and Forrest mortgages were invalid. The decree is affirmed. MOORE, C. J., and BURNETT and McBRIDE, JJ., concur. Where the mortgagee and the purchaser from the mortgagor believed that the mortgage contained a clause for the payment of taxes, and the former in good faith had started foreclosure proceedings because of the failure to pay taxes, a settlement of such proceedings is sufficient consideration for a promise made by the purchaser to insure the building for the mortgagee's benefit, though in fact the mortgage contained no clause for the payment of taxes, and there was no right to foreclose, and that promise will be enforced in equity. [Ed. Note. For other cases, see Compromise and Settlement, Cent. Dig. § 40; Dec. Dig. 6(4).] of the mortgagee. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 532-536; Dec. Dig. 201.] 4. MORTGAGES 201-AGREEMENT TO INSURE -ORAL AGREEMENT-AMOUNT OF INSURANCE. An oral agreement to insure mortgaged premises, which does not state the amount to be taken out, ordinarily requires the proper amount of a policy upon the building. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 532-536; Dec. Dig. 201.] 5. MORTGAGES 201-INSURANCE-RIGHT TO PROCEEDS MORTGAGEE. Where an insurance policy is taken out by the mortgagor who had agreed to insure for the benefit of the mortgagee, equity will treat the policy as payable to the mortgagor as his interest may appear. [Ed. Note.--For other cases, see Mortgages, Cent. Dig. §§ 532-536; Dec. Dig. 201.] 6. MORTGAGES 201 INSURANCE MORT GAGEE'S RIGHT TO INSURANCE MONEY. Equity has jurisdiction of a suit to enforce a mortgagee's right to the proceeds of insurance on the premises since he is entitled to have the specific fund held intact for him, and an action at law would not afford an adequate remedy. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 532-536; Dec. Dig. 201.] Department 2. Appeal from Circuit Court, Multnomah County; H. H. Belt, Judge. Suit by John E. Butson against W. H. Misz and wife. Decree for the plaintiff, and defendants appeal. Affirmed. This is a suit to have the defendants declared trustees for the benefit of the plaintiff in the sum of $700. From a decree in favor of plaintiff, defendants appeal. Raymond A. Sullivan, of Portland, for appellants. Geo. F. Brice and W. H. Masters, both of Portland, for respondent. BEAN, J. The record discloses the following facts, the controverted part being amply supported by the evidence: On July 3, 1914, defendant W. H. Misz, acting in behalf of his wife, the other defendant, purchased a tract of 5.64 acres of land, with a house and other buildings thereon, situated at Wilsonville, Clackamas county, Or. Upon this property the plaintiff Butson held a mortgage in the sum of $2,500, executed April 12, 1911, by one Cook and his wife, who purchased the land from plaintiff. The mortgage was given to secure two notes, one for $1,000, and the other for $1,500, due thereafter in five and ten years, respectively. The Cooks conveyed the property to one Adams who deeded the same to defendant W. H. Misz subject to plaintiff's mortgage. Prior to the time Mr. Misz bought the land he met the plaintiff at Wilsonville and informed him he was about to trade for the property. Butson told him he would give him three days to pay the two years' delinquent taxes on the premises, and complained that the buildings had run down, and if the taxes were not so paid he would place the mortgage in the hands of his attorney for foreclosure. In about a week, the taxes not having been liquidated, plaintiff made arrangements with his attorney to foreclose the mortgage. A short time afterwards Mr. Misz went to Butson and informed him that he had made the deal, but plaintiff told him he was too late; that his attorney had the matter for collection. In order that the deal might not be thwarted, negotiations were entered into to settle the controversy, pay the delinquent taxes, and stop the threatened foreclosure of the mortgage. In order to effect this adjustment, Misz agreed to pay the delinquent taxes, pay the plaintiff's attorney his charges in the matter, and take out insurance on the house in his own name, payable to Butson as mortgagee. To this plaintiff assented and Misz paid the taxes and expenses amounting to $48.48, and agreed to send the policy of insurance to Butson. Plaintiff's evidence as to this contract is corroborated by his wife and attorney, and is not successfully refuted. Plaintiff afterwards allowed a policy of $200, which he had on the dwelling house payable to himself, to lapse. The title to the property was first conveyed to Mr. Misz and afterwards he deeded the same to his wife who was the equitable owner thereof. On October 8, 1914, Misz procured a policy of insurance on the dwelling house in the sum of $700, payable to Mrs. Misz. Butson never saw the policy, and in fact could not read nor write. He inquired of defendant about the insurance policy and was told by him that he had it all right in his safety box. Butson states that he trust ed by plaintiff in any manner. The law favors a voluntary settlement of disputes to the end that the energies of the parties may be exercised in the affairs of life other than litigation. There can be no question but that defend ed Mr. Misz in the matter. On March 29, | writing a building with an incumbrance. 1915, the insured building was consumed by Defendants were not deceived nor overreachfire and plaintiff demanded the insurance money which defendants collected. A compromise agreement that defendants would pay plaintiff $200 and build another house on the land was effected, but never carried out by the former, a circumstance which does not affect this suit except to explain why de-ants, purchasing the real estate upon which fendants were permitted to collect the insurance. Plaintiff's mortgage contained no covenant that the mortgagor should insure the building nor for the payment of taxes. No interest was due on the mortgage at the time Mr. Misz purchased the property. [1] It is contended on behalf of defendants that the agreement of Misz to insure the dwelling and make the policy payable to the mortgagee, if made, was not supported by any consideration, for the reason that no condition of the mortgage had been broken at the time of the contemplated foreclosure when Misz negotiated for the real estate, and that plaintiff had no right to foreclose the mortgage and no cause of suit to settle. A compromise and settlement of a bona fide controversy between the parties, where each having equal knowledge or equal means of knowledge of the facts in good faith claims a right in himself against the other, and which claim the parties consider good or doubtful, constitutes a valid binding agree ment and is a sufficient consideration to support a new contract, even though the law and facts were such that a court would not have adjudged such an adjustment. Smith v. Farra, 21 Or. 395, 28 Pac. 241, 20 L. R. A. 115; Thayer v. Buchanan, 46 Or. 106, 111, 79 Pac. 343; Roane v. Union Pac. Life Ins. Co., 67 Or. 264, 135 Pac. 892; McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460. A new contract based upon such a consideration will be enforced in equity. 2 Pom. Eq. Juris. (3d Ed.) $ 850. [2] Consideration is defined as a benefit to the party promising or a loss or detriment to the party to whom the promise is made. 9 Cyc. 308; Visalia Gas Co. v. Sims, 104 Cal. 326, 37 Pac. 1042, 43 Am. St. Rep. 105. The plaintiff in good faith claimed the right to foreclose his mortgage. Both the parties appeared to have believed that it contained a covenant for the payment of taxes on the land, and that its condition had been broken at the time they made the new agree ment. Having an abstract of title of the premises neither examined the mortgage or record thereof. Butson had paid the taxes which were in arrears, and to that extent his demand was valid. Whether the mortgage was then due or not the court will not inquire. The parties have settled that matter between themselves in so far as the new contract is concerned. That the policy of insurance should be made payable to the mortgagee as his interest might appear was the reasonable and usual method of under plaintiff held a mortgage of $2,500 and 309, 316, 29 S. E. 722; Nichols v. Baxter, 5 442, 25 L. Ed. 1055; Cromwell v. Brooklyn Fire Ins. Co., 44 N. Y. 42, 4 Am. Rep. 641; Nordyke v. Gery, supra; Chipman v. Carroll, 53 Kan. 163, 35 Pac. 1109, 25 L. R. A. 305; Hazard v. Draper, 7 Allen (89 Mass.) 267. [4] Counsel for defendants urge that no amount of insurance was fixed by the agreement. It would be understood ordinarily by such a promise that the usual and proper amount of a policy upon the building was intended by the parties. They may not have known at the time the proper figures. [5] However, there is no difficulty upon that score as the amount of the insurance policy was fixed and determined when the same was written. A clause making the same payable to the mortgagee as his interest might appear should have been inserted in the instrument in accordance with the stipulation between plaintiff and defendants. Equity will treat the document as having been so framed. This is upon the principle that equity treats that as done which should have been done. Nordyke v. Gery, supra. [6] Defendants' counsel challenges the jurisdiction of a court of equity in the prem doing the work with knowledge of the rate desigthe list at the rate specified, which neither party. nated, constitutes a contract for the printing of can thereafter ignore. [Ed. Note. For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. 2.] 5. WORK AND LABOR 9-EXPRESS CONTRACT -EFFECT. ises upon the ground that plaintiff's remedy | ceptance of such appointment by a newspaper by was at law. He was entitled to have this specific fund held intact for him. The trial court required the defendants to pay the money into court to await the final determination of the cause. An action at law would not afford plaintiff an adequate remedy. In order to fully protect his rights, equity has jurisdiction and is an appropriate proceeding. So. Portland Land Co. v. Munger, 36 Or. 457, 54 Pac. 815, 60 Pac. 5; Benson v. Keller, 37 Or. 120, 127, 60 Pac. 918; Livesley v. Johnston, 45 Or. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. Rep. 647; Hall v. Dunn, 52 Or. 475, 479, 97 Pac. 811, 25 L. R. A. (N. S.) 193. The decree of the lower court was right, and should be affirmed; and it is so ordered. MOORE, C. J., and BENSON and HARRIS, JJ., concur. (81 Or. 626) COOS BAY TIMES PUB. CO. v. COOS (Supreme Court of Oregon. Oct. 27, 1916.) An ordinary action at law may be brought to recover the amount claimed under a contract with the county which had been rejected in part by the county court, where there are questions of fact as well as of law involved, since on a writ of review the court cannot examine a disputed question of fact, but can consider only facts disclosed by the record. [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 339, 340; Dec. Dig. 210.] 2. COUNTIES 114-OFFICERS PUBLICATION OF TAX LISTS. AUTHORITY— Gen. Laws 1913, p. 576, requires the tax collector to publish in the newspapers selected by the county court to publish court proceedings under L. O. L. § 2902, a notice of delinquent taxes, which publication shall be for a price not exceeding the price prescribed by L. O. L. § 2903. The latter section provides that compensation for the publication of lists and proceedings shall be fixed by the county court not exceeding the limit therein specified. L. O. L. § 937, gives the county court the general care and management of the county property. Held, that the tax collector has no authority to contract for the publication of delinquent tax lists at a rate exceeding that fixed by the county court. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 174, 175; Dec. Dig. 114.] tax list under a contract fixing the amount of A newspaper which publishes a delinquent compensation pursuant to statute cannot recover a larger compensation on quantum meruit. [Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 23-24; Dec. Dig. 9.] County; G. F. Skipworth, Judge. Action by the Coos Bay Times Publishing Company against the County of Coos. Judgment for the defendant, and plaintiff appeals. Affirmed. The plaintiff brings this action to recover compensation for printing the delinquent tax list for Coos county. From a judgment on a verdict in favor of defendant, plaintiff appeals. Peck & Peck, of Marshfield, for appellant. L. A. Liljeqvist, of Marshfield, for respondent. BEAN, J. As developed by the record the case is as follows: On February 15, 1915, in accordance with the mandate of section 2902, L. O. L., the county court of Coos county selected the Coos Bay Times, published by plaintiff, as one of the official newspapers of the county. On the same date, as shown by plaintiff's Exhibit D, the county court entered a separate order fixing the price to be paid by the county for the publication of delinquent tax notices at three cents per line for each insertion. On and between April 5 and May 3, 1915, at the instance of the county, plaintiff published the delinquent tax list and notice of delinquency in five issues of its paper. This was done upon a copy being furnished by the sheriff. The plaintiff claims that a contract was made with the tax collector to the effect that the defendant would pay five cents per line for each publication thereof. Plaintiff duly presented its claim for such services to the county court, aggregating, at the five-cent rate, $1,035. The county court allowed $592.35, the price fixed 3. COUNTIES 114-OFFICERS-AUTHORITY- by it, rejected $440.65 of the amount claimPUBLICATION OF TAX LISTS. The provision of Gen. Laws of 1913, p. 576, that in counties of more than 100,000 inhabitants the county court shall cause the delinquent tax lists to be published at a compensation therein definitely fixed, does not indicate an intention of the Legislature to confer on the tax collectors of other counties the authority to fix the compensation for such publication. ed, and issued a warrant for the sum allowed, which was not accepted by the publishing company, and this action was instituted. Plaintiff alleges a contract for the printing at the rate of five cents per line for each issue of the newspaper. Defendant denies the contract as alleged, and insists that under the statute the county court is the proper tribunal to fix such compensation. Plaintiff also claims that the amount charged by it was the reasonable value of the services. The trial court rejected this latter claim and all evidence in support thereof and also all evi |