185 P. 753 | Or. | 1919
Lead Opinion
At the appropriate time counsel for defendant submitted a motion for a judgment of nonsuit and at the close of all the testimony requested the court to direct the jury to return a verdict in favor of defendant. These requests were denied. The proposition thus raised is the pivotal question in the case. Several exceptions were saved to the ruling of the court relating to the introduction of testimony but in so far as they are deemed important they hinge upon the main issue. It is the contention of defendant that the possession of the land in controversy held by the plaintiff and his predecessors was not adverse, but that the entry was made under an executory contract to purchase the premises and that each held in subordination to the title of defendant’s predecessor, and recognized such title. Plaintiff contends that the possession of Brown, Phillips and Geddes became adverse in March, 1906, by virtue of the payment of the purchase price in full, and their possession with their successors in interest so continued until July 18, 1916, thus being in adverse possession for more than ten years.
“But the possession of the vendee of land, under contract to purchase, whether oral or written, after payment of the entire purchase money, is presumptively*280 adverse to that of his vendor from the time that such payment was made. Nor is his possession prevented from being adverse by his knowledge of a defect in the title, or his subsequent demand for a deed; * * ”
It is stated in 2 C. J., page 154, Section 273, as follows:
“While the law seems to be otherwise in some states, the decided weight of authority is to the effect that a vendee of land in possession under a contract of sale by parol or in writing holds adversely to his vendor from the moment of payment or performance of the conditions of the contract, although a deed is not executed, and if this possession is continued for the statutory period the purchaser acquires title by the statute of limitations. However, the vendee may, by express recognition of the vendor’s title, defeat the adverse character of his possession.”
The rule is announced that under an executory contract for the purchase of land where the entire consideration has been paid the vendee is not required to give further notice to his vendor that he holds adversely, the payment of the purchase price in itself being notice: Normant v. Eureka County, 98 Ala. 181 (12 South. 454, 39 Am. St. Rep. 45); Watts v. Witt, 39 S. C. 356 (17 S. E. 822). The knowledge of the members of the partnership, the vendees, that their title was not perfect would not prevent their possession from being hostile, neither would their demand for a deed made in the former suit work such a hindrance. The suit was a solemn assertion in the court that they claimed the right to the land.
In Anderson v. McCormick, 18 Or. 301, 303 (22 Pac. 1062), this court speaking by Mr. Justice Strahan adopted the rule which prevails in most of the states of the Union. The following language was there used about which there can be no misunderstanding:
*281 “The rule seems to be that where a purchaser enters into possession of land under an executory contract which leaves the legal title in his vendor, and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title; and in such case, as also in the case of lessee and other similar cases, where one is under the owner of the legal title, a privity exists which precludes the idea of a hostile or tortious possession that could silently ripen into an adverse possession under the statute of limitations: Core v. Faupel, 24 W. Va. 238; Jackson v. Spear, 7 Wend. (N. Y.) 401; Williams v. Snidow, 4 Leigh (Va.), 14; Gay v. Moffit, 2 Bibb. (Ky.) 506 (5 Am. Dec. 633); Keys v. Mason, 44 Tex. 140; Pratt v. Caufield, 67 Mo. 50. But where the vendee has executed his part of the agreement by the payment of the purchase money, his possession is from that time adverse to the vendor. ’ ’
There has been no deviation from such announcement in this state.
The position of the defendant is in effect that before possession taken by a vendee under a contract to purchase real property, although the purchase price has been paid in full, can be claimed to be adverse the contract must be such that upon performance by the vendee he can in equity compel a conveyance of the land. "We are unable to agree with this claim.
“But after a purchaser from the vendee has paid his purchase money his continued possession is deemed adverse to the vendee and consequently to the original vendor, although the latter has not been paid, * * ”
The testimony tended to show that Smith and Mack bought the land in the belief that the partnership owned the same and without any knowledge on their part that the Sumpter Lumber Company from whom the partnership had purchased had not executed a deed. Smith and Mack were not in privity with the Sumpter Lumber Company and knew nothing about its claim until the deal was closed and they had paid for the property. Under the circumstances disclosed by the testimony the possession of Smith and Mack clearly comes within the rule stated in 2 C. J. 155. See also Montgomery County v. Severson, 64 Iowa, 326 (17 N. W. 197, 20 N. W. 458). The latter case was a suit in
“In each case as we have shown there was a contract for the sale of the lands and the respective defendants, or their grantors entered into the possession and held and improved the respective tracts as the owner thereof. They did not, it is true, hold the legal title or claim to hold it until the deeds to them were executed by the Emigrant Company. Until then they claimed but an equity in the lands which could be enforced upon the payment of the purchase money. It is not necessary for one relying upon the statute of limitations to show a legal title. A claim of right to the land is sufficient and this claim need not be based upon a legal title or a paper title. It may rest in parol. A claim based upon an equity is sufficient.”
From a careful reading of the testimony in the case we find that there was ample evidence to sustain the allegations made by plaintiff in his pleadings. There was no error in denying the motion for judgment of nonsuit, or in refusing to direct a verdict in favor of defendant.
The question of the effect of the decree in the former suit was determined upon the first appeal in this case
10. The defendant complains, of the verdict for $15,000 as excessive. In addition to the buildings and other improvements which the testimony tended to prove were destroyed and for which plaintiff claimed $3,000 and about which there is little dispute, the evidence on behalf of plaintiff tended to show that the land in controversy is located in an old bed of the river, and was dredged to the depth of from 24 to 30 feet; that the different tests made in prospecting in the “old bed” a short distance above the Bessler tract showed approximately that the gravel would yield from 9.52 cents to 27.55 cents in gold per cubic yard. The testimony of Mr. Derby, the manager of the defendant company, in regard to the value of the ore extracted from the land, was as follows:
“Q. Do you know about how much the land in controversy produced?
“A. I know approximately.
“Q. How much?
“A. Approximately a gross of twenty thousand dollars, $20,184.”
The amount awarded by the jury was $15,000 including compensation for the destruction of the buildings and other structures. The question was submitted to the jury under- a charge by the court to which we find no exception on behalf of defendant as to the measure of damages. Under these conditions it cannot be said as a matter of law that the verdict is excessive. Obviously the jury did not deduct as much for the cost of dredging the land as the defendant claimed. They apparently considered that as the defendant was extracting gold from the adjoining land the margin of at
After careful consideration, finding no error in the record the judgment of the lower court is affirmed.
Affirmed,
Rehearing denied February 17, 1920.
Rehearing
On Petition for Rehearing.
(187 Pac. 621.)
On petition for rehearing. Petition denied.
Rehearing Denied.
Messrs. Clifford & Correll and Mr. Thomas H. Breeze, for the petition.
Mr. John L. Rand and Mr. A. A. Smith, contra.
Counsel for defendant files an earnest petition for a reconsideration of this case. The main contention is that “there is manifest error in drawing conclusions of ultimate facts, in diametrical opposition to those drawn by Mr. Justice Harris” in the former suit of Bessler v. Derby, 80 Or. 513 (157 Pac. 791).
In passing we wish to state that we notice no such conflict between the findings in the former suit and the conclusions of the jury in the present case.
"Were it not for the fact that one of the learned counsel for defendant is from a sister state where apparently they do not preserve the distinction between an action at law and a suit in equity, as our Code does, we should not feel disposed to discuss this question. In our f ormer opinion we twice declared, and we again as
“In actions at law, no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”
Therefore, in referring to the facts which the jury found by their verdict, it is only for the purpose of ascertaining whether there is any substantial competent evidence to support the verdict. That is as far as our authority extends, as to conclusions of fact in an action at law. It does not seem to be claimed on the part of defendant, and indeed we do not see how it could be so claimed, that there was no competent evidence to sustain the verdict. There was some dispute it is true, and different conclusions of fact might reasonably be drawn from the circumstances of the case by the triers of the facts, but those matters were set at rest by the verdict.
Complaint is made in regard to the statement in reference to Blanchard, the agent of defendant of whom plaintiff’s predecessors in interest attempted to purchase the land in question. Our discussion of the question of adverse possession of the land in our former memorandum was based upon the proposition that the contract of purchase under which plaintiff and his predecessors claimed was-invalid, and wé attempted to so state. Plaintiff’s right to the land is based solely upon adverse possession thereof for the statutory period, and not upon a contract of purchase.
After a careful examination of the courteous petition for a rehearing, we adhere to our former opinion. The petition is denied.
Affirmed. Behearing Denied.