## Facts

- Ednamae F. Caveny and her husband, Kasper P. Caveny, entered a written “Earnest Money Receipt” to buy residential real property (Lot 3 in Gable Park, Washington County, Oregon) from Gable Park, Inc.
- The purchase price was $28,500; the agreement required Gable Park to complete specified construction/landscaping work and to convey marketable title “free and clear of all liens and encumbrances.”
- The contract made the final $1,000 installment due only after Gable Park completed its obligations, including delivery of clear title.
- The property was subject to a preexisting first mortgage to The Travelers Insurance Company securing a $15,000 note.
- The Cavenys went into possession and made substantial payments toward the price; $11,856.04 of what they paid was, as the trial court later found, money that should have been applied to discharge the Travelers mortgage so the promised clear title could be delivered.
- Gable Park did not pay off the Travelers mortgage and therefore could not tender title free of that encumbrance.
- The Cavenys withheld the final $1,000 and sued in equity for specific performance and related relief.
- The circuit court ordered Gable Park to convey the property with the mortgage released and ordered the Cavenys to pay the final $1,000 to the clerk of court, to be turned over to Gable Park only after proof that the Travelers mortgage had been satisfied.
- By an amended decree dated July 21, 1953, the circuit court added trust relief, declaring that funds received from the purchasers for the purpose of paying Travelers were held in trust and entering relief tied to $11,856.04; the decree treated Gable Park and associated individuals (including Bernard Asheim and William C. Robison, real-estate brokers involved with the transaction) as trustees for that purpose.
- A later amended decree dated September 18, 1953 further revised the trust-related relief.
- Defendants appealed; a companion mandamus proceeding (State ex rel. Asheim et al. v. Peters) arising from the same litigation was consolidated with the appeals in the Oregon Supreme Court.

## Issues

1. Whether purchasers may obtain specific performance requiring conveyance of marketable title free of a prior mortgage when the seller promised clear title but left the mortgage unpaid, and whether equity may condition release of the final installment on proof of mortgage satisfaction.
2. Whether equity may treat purchase payments intended to retire the prior mortgage as trust funds and impose trustee liability (including monetary relief) on the seller and involved agents who received or controlled those funds.
3. Whether mandamus is available to control or revise the circuit court’s handling of discretionary equitable relief in this dispute.

## Decision

- The Oregon Supreme Court affirmed the original decree as amended by the July 21, 1953 decree, but modified it.
- The court reversed the September 18, 1953 amended decree.
- The court dismissed the petition for a writ of mandamus.
- The cause was remanded to the circuit court for further proceedings consistent with the Supreme Court’s disposition.

## Legal Principles

- A seller who agrees to convey marketable title free of liens and encumbrances cannot insist on full performance by the purchaser while a prior mortgage remains unsatisfied in violation of the agreement.
- In specific performance, equity may structure performance so that the purchaser’s remaining payment is protected (including ordering payment into court and releasing it only upon proof that the seller has cleared the agreed encumbrance).
- When the transaction and payment arrangement contemplate that purchaser payments will be applied to discharge an existing mortgage so clear title can be conveyed, equity may treat the recipient(s) of those payments as holding the relevant amount in trust for that limited purpose and may grant relief to prevent the buyer from bearing the burden of an unpaid lien after paying funds intended to remove it.
- Mandamus does not lie to direct or revise a trial court’s discretionary judicial acts in framing equitable decrees where review by appeal provides an adequate remedy.

## Conclusion

*Caveny v. Asheim* holds that buyers who contracted for marketable, lien-free title could compel conveyance free of a prior mortgage the seller failed to discharge, with the court properly protecting the buyers by conditioning release of the final installment on proof of satisfaction; the Supreme Court sustained (with modification) the decree recognizing trust-type accountability for payments meant to retire the mortgage, reversed a later amended decree, and dismissed a companion mandamus petition as an improper substitute for appellate review.


Caveny v. Asheim, 202 Or. 195 (1953)