68Q 79i>e:biii befobtbb. ' �ment of May 31, 187^, for the sale and purchase of said land grant to said John Miller, and agreed, in writing, to sell and conrey to him ail of said lands theretofore conveyed by said MiUer to him or his associates, upon Miller's paying therefor the sum of $1.25 per acre, and expenses incurred thereabout, together with interest upon the purchase money, within 90 days, after which the option of Miller was to cease and de- termine. This assignment and option, although nominally made tp Miller, was intended for the benefit of A. T. Green and H. S. Brown as well, and was in faet an arrangement by wliioh they three were authorized to dispose of this land grant at a profit to themselves, if they could, within 90 days — fail- ing in which, the option and assignment were to become null and void. �By November 8, 1876, the remaining portion of the grant was surveyed and patented to the plaintiff, and on May 5, 1877, it executed a deed in due form of law therefor to the defendant, and duly tendered the same to him on July 27, 1877, and demanded payment therefor, which was refused on the ground that he had re-assigned the contract to Miller. The portion of the grant conveyed to Miller, and by him con- veyed to the defendant, is of much more value, probably 50 per cent, more, than the remainder of it. During ail the time of these transactions the defendant, and his associates afore- said, were citizens of California and not resident in Oregon, and were never in the possession or control of the premises, otherwise than according to the foregoing statement of facts, and their legal operation and effoct. �Under these circumstances the plaintiff commenced thia suit in the circuit court for the county of Coos to recover from the defendant the sum of $60,791.63, alleged to be due on the contract of May 31, 1875, and to establish and enforce a vendor's lien upon the whole premises for said sum and the costs of suit, which was afterwards removed by the defendant into this court. �It is alleged in the amended bill that the defendant, by reason of the premises, undertook and promised to keep and perform ail the covenanta in the agreement of March 31, ����
