20 Or. 223 | Or. | 1891
1. It is nowhere alleged in the complaint that at the time Marks made the representations complained of he knew that the farm did not contain 169.09 acres, or that they were made with the intent to defraud the plaintiff. By omitting these allegations, the plaintiff fails to make a case in his complaint which would entitle him to any relief on the ground of fraud. (Rolfes v. Russell, 5 Or. 400; Dunning v. Cresson, 6 Or. 241.)
2. But the plaintiff’s counsel argued that mistake is alleged in the complaint and that of itself is sufficient to entitle the plaintiff to relief. Waiving all questions as to the insufficiency of the pleading on this point, we will proceed to examine the facts briefly. The plaintiff holds under a deed from Marks and Wollenberg and wife, dated the 9th of November, 1883. The consideration expressed in the deed is seventeen hundred dollars. The premises conveyed are described as follows: “The east half of that certain donation land claim of John W. Burch, which entire donation claim is described as commencing at a point 6.14 chains west and 22.30 chains south from the corner of sections 24 and 25 in T. 30 S., R. 6 west (claim No. 61); thence east 23 chains; thence north 58.50 chains; thence west 74 chains; thence south 36.20 chains; thence east 50.80 chains; thence south 22.30 chains, to the place of beginning, containing in township 30 S., R. 6 west, 221.18 acres, and in township 30 S., R. 5 west, 97 acres. Also the north part of the donation land claim of A. J. Tiller, commencing 20.63 chains south and 7.16 east from the northwest corner of section 30 in township 30 S., R. 5 west; thence running east 29.50 chains; thence south 20.34 chains; thence west 29.50 chains; thence north 24.30 chains, to the place of beginning,
These authorities effectually dispose of the appellants contention and require the affirmance of the decree appealed from, and it is so ordered.