80 P. 97 | Or. | 1905
delivered the opinion of the court.
In Murphy v. Sears, 11 Or. 127 (4 Pac. 471), it was ruled that persistent attempts on the part of the defendants therein, to have the real property claimed to be owned by plaintiffs sold on execution constituted the inauguration of an adverse claim to the premises, within the meaning of the statute. If an “adverse claim” to an estate or interest in real property can 'be established in no other manner than by an effort on the part of the claimant to disturb the possession of the alleged owner, either by bringing an action to try the title, or by an attempt to sell the premises on execution, it is quite probable that an infant, without the aid of a guardian, is incapable of instituting such claim. An “adverse claim” to an estate or interest in real property, within the meaning of the statute under consideration, is, in our opinion, the expressed assertion of a right to the premises by the claimant; and the commencement' of an action to try the title, or an attempt to sell, lease, or dispose of the land, by the person out of possession, affords evidence of such
The expressed assertion of an adverse claim to an estate or interest in real property, made by a person out of possession, in the presence of others, necessarily creates a suspicion in respect to the validity of the title of the person in possession of thé land, claiming to be the owner thereof, and such distrust is measured by the credence given by the hearers to the declaration of right thus asserted in their presence. An infant who has attained suitable age and sufficient intelligence and discretion to cause his expressed assertions generally to be believed can probably affect the person in possession of real property, claiming to be the owner thereof, more injuriously, and inflict greater damage, by adversely claiming an estate or interest in the premises, than can ordinarily result from such a claim when made by an adult, for the latter,- having reached his majority, can convey any right or title' thereto by deed, but the infant, in consequence of his nonage, cannot transfer his estate, thereby possibly preventing a sale of the land until he becomes of age, or until, by a suit instituted for that purpose, his
Affirmed But Remanded.