Hicklin v. McClear

18 Or. 126 | Or. | 1889

Thayer, C. J.

A number of exceptions were taken at the trial by the appellant’s counsel to the rulings of the circuit court upon the admission of evidence on the part of the respondent; but the main question in the case is as to whether the facts found by the court sustain the conclusions of law adjudged thereon. The respondent claimed title to the premises by deed from B. Killen and wife, bearing date November 28, 1873, and through mesne conveyances from Gideon Tibbets and wife, donees of a tract of land from the United States, which included the land in dispute. These conveyances, however, described the premises as lots 1 and 2, in block 3, in the town of “Brooklyn,” and the records did not show that a plat of any such town had been filed or recorded. They did, however, show that a plat of the town of “Brookland” had been filed and recorded. In this condition of the matter, the cousel for the respondent evidently thought it necessary to prove the circumstances surrounding the transaction, in order to render it certain that the premises in dispute were the same premises intended to be conveyed to the respondent by the conveyances referred to. This he had an undoubted right to do, and parol testimony is clearly competent for that purpose. Mr. Gr&enleaf says: “As it is a leading rule, in regard to written instruments, that they are to be interpreted according to their subject matter, it is obvious that parol or verbal testimony must be resorted to, in order to ascertain the nature and qualities of the subject to which the instrument refers. Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it. Whatever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered m the abstract. ” 1 Greenl. Ev. § 286. Again, that author says: ‘ ‘Indeed, there is no material difference of principle in the rules of interpretation between wills and contracts, except what naturally arise from the different circumstances of the parties. The object in both cases is the same,—namely, to discover the intention; and to do this the court may, in either case, put themselves in place of the party, and then see how the terms of the instrument affect the property or subject matter. With this view, evidence must be admissible of all the circumstances surrounding the author of the instrument. In the simplest case that can be put, namely, that of an instrument appearing, on the face of it, to be perfectly intelligible, inquiry must be made for a subject matter to satisfy the description. If, in the conveyance of an estate, it is designated as ‘ Blackacre, ’ parol evidence must be admitted to show what field is known by that name.” § 287, Id. The rule, as above laid down, is declared in this State by positive law. Section 692 of the Civil Code, after providing that where the terms of an agreement have been reduced to writing by the parties it is to be considered as containing all those terms, and that thereafter there can be no evidence of the terms of the agreement, etc., other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue bj^ the pleadings, or where the validity of the agreement is the fact in dispute, declares: “But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 696 (Civil Code), or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term ‘agreement’ includes deeds and wills, as well as contracts between parties.” In case of a deed to x-eal property, it has always been competent to prove the facts and circumstances surrounding the transaction, in order to ascertain the premises intended to be conveyed. The evidence, therefore, as to what Tibbets did in platting the town-site, and in selling lots therein, of there being two plats, and of their similitude in fact, was eminently proper, and the objections thex-eto xnust be regarded as highly technical. Nor did it matter anything whether such plat was ever acknowledged or filed for record; its contents could be proved by parol testimony in event of its loss or destruction. In view of this rule the circuit court properly admitted the said evidence, and its findings of fact thereon must be regarded as conclusive upon this appeal. Hence nothing remains to be considered except the question before suggested,—whether said findings justified the conclusions of law drawn therefrom. When an action at law is tried before a circuit court without a jury, its first duty is to find from the evidence the facts in the case. It must then determine the law as applicable thereto, which becomes decisive of the right of the parties to the action.

In this case the circuit court found, in effect, that the respondent had a correct and complete paper title to the premises in dispute, by mesne conveyances from the United States, and that the appellant was in possession of the same, claiming ownership thereof. These facts would entitle the respondent to a judgment for the recovery of the possession of the premises, unless other facts found by the court would bar him of his right. It must be understood, however, that this court can only consider those findings which the record shows that the circuit court actually made. Whether or not that court was justified by the weight of evidence in making the findings, this court cannot consider. Nor can it consider any failure or neglect on the part of the circuit court to make other findings from the evidence before it, which would be material in the case, unless the point is specially made and brought here. If the findings of the circuit court in such a case are wholly unsupported by the evidence, and that fact is made to appear by a bill of exceptions purporting to contain all the evidence upon the point, this court would disregard the findings. And should the circuit court fail or neglect to make a material finding upon the evidence before it, and the bill of exceptions showed that the court was specially requested to make the finding, and it had refused to do so, this court would doubtless deem an exception to such refusal well taken.

I am induced to make these suggestions because they involve an important point in practice, to which the attention of the profession should be called. The respondent evidently acquired a good legal title to the premises in question under the conveyances referred to, and. the burden of proving that he has since been divested of it,', or barred from asserting it, is upon the appellant. The only ground upon which it can be claimed, with any semblance of reason, that the respondent is precluded from recovering possession of the premises, is that he, his ancestor, prede cessor, or grantor, was not seised or possessed of the same within ten years before the commencement of the action; and in order to establish that fact it must appear that the appellant, and those under whom he claims, were, during that time, in the visible, notorious, and exclusive possession, under a claim of ownership. The possession must have been of such a character as to afford the respondent the means of knowing it, and of the claim.

It can hardly be pretended that any of the findings of the circuit court establish any such possession of the premises by the appellant and his grantors as above indicated. The court found, it is true, that the appellant’s grantor, J. W. Kern, at one time constructed a temporary fence of brush, and poles inclosing the said premises, for the purpose of pasturing his horse and cow thereon, but which was not maintained for any length of time; and that on the twenty-third day of November, 1872, he had platted and recorded a plat styled “Kern's addition to the city of East Portland,” which embraced substantially the lands embraced in the plat of Brooklyn.

, It also appears from the said findings that the appellant's grantors first entered on a tract of land, including the premises in controversy, in 1861, under a parol agreement for conveyances from Clinton Kelly, which conveyance wras made in 1863, and described certain lots and blocks, of which block 12 was one, in the town of Brooklyn; that they actually occupied block 12, and in the years 1872, 1874 and 1877 received conveyances from Love and Tibbets for a tract of land, described by metes and bounds, and which included said block 12, and also the land in controversy. After 1872, and until the commencement of this action, the appellant’s grantors have continuously occupied, by themselves, or by tenants and servants, said block 12, and have claimed an exclusive ownership of the remainder of the tract described by metes and bounds; but have at no time been in actual possession of the land in dispute until about-years ago, when they sold to appellant, who thereafter, and from the-day of --, 1884, has actually occupied the premises until the commencement of the action; that appellant’s immediate grantors have had constructive, possession of the premises in controversy for the period of more than ten consecutive years prior to the commencement of the action, unless the existence of the town-site of Brooklyn, within which the residence of appellant’s immediate grantors and the lots in dispute are situated, has precluded the application of the right of constructive possession in the case.

This is the substance of the facts upon which it is attempted to maintain the appellant’s defense of adverse possession. They amount to about this: The appellant's grantors purchased certain lots and blocks in the town of ‘1 Brooklyn, ” as it was termed, and took up their residence on one of the blocks purchased. They then obtained deeds from the respondent’s grantors to a tract of land, which included said lots 1 and 2, in block 3, but which deeds were subsequent to the conveyances under which the respondent claims title. The appellant’s grantors, however, inclosed the tract to which they had received the deeds by a temporary fence, for the purpose of pasturing their, stock therein; but they subsequently removed the fence, and left the respondent’s lots lying open, although they assumed to be the owners thereof for more than ten years, and deeded them to appellant in 1884, who entered upon and took actual possession of them. The circuit court did not consider that the occupancy of the premises by the appellant and his grantors had been sufficient to constitute adverse possession; that, their being a separate and distinct parcel of land from block 12, where the appellant’s grantors resided, the latter could only at most have had a constructive possession thereof, which, under the circumstances, was not sufficient. It is well understood that there is an exception to the rule which requires a party to be in the actual occupancy of the land under a claim of ownership in order to constitute an adverse possession of it. The exception applies to cases where the party enters upon a tract of land under a deed or written instrument which defines its extent. There the actual possession of the party of a part of the tract will ordinarily be regarded as the possession of the whole of it. The law will deem the possession of the party in such a case to be coextensive with the boundary of the tract, or the limits thereof, contained in the deed or writing. But in this case the condition of affairs was entirely different. The appellant's grantors were owners, and in possession of said block 12, when they received the deeds to the tract before referred to. They made no new entry upon the land after receiving the said deeds, but continued to reside upon said block 12 as they had theretofore been doing. They did no overt act likely to impart notice to the owners of lots 1 and 2, block 3, that they claimed the ownership thereof; but merely attempted to extend their dominion over said lots, and appropriate them without any hostile demonstration. How could the owners of lots 1 and 2, block 3, have known that'said grantors intended to claim the lots as their own property from any act which they did? Inclosing them, with other.adjacent land, by a pole and brush fence, for a temporary pasture, was not calculated to give notice of that character. The lots were probably open commons, and the owners of them would not be likely to make any objection to their use for such purpose by any adjoining neighbor. I do not think, therefore, that the possession by the appellant and his grantors, as found by the court, was sufficient to bar the respondent’s recovery, irrespective of the fact that the said lots constituted a separate and distinct parcel of land from that of said block 12. If I am correct in this, it is unnecessary to consider whether the town-site of Brooklyn had an existence or not. The counsel for appellant contended very earnestly at the hearing that there was no such town-site; that it was never accepted by the town proprietors or by the public, but was superseded by “Kern’s addition to the city of East Portland. ” It became important for said counsel to maintain that position, in order to claim the benefit of a constructive possession of the lots in question under the holding of the circuit court. Their argument was that such town-site never existed. If they are correct in that view, then all the acts of Gideon Tibbets in platting the land, having a plat thereof made, and selling lots and blocks by reference thereto, were a nullity. I had-a] ways supposed that a proprietor of land had a right to lay it off into lots, blocks, and streets, and to designate it as a town-site; and that when he sold lots and blocks by reference to the plat of such town-site he thereby irrevocably dedicated the streets to the public. It would be a strange doctrine, it seems to me, if a land owner were allowed, after platting his land as mentioned, and after selling a number of the lots and blocks so laid out, to annul the whole affair. Tibbets could have done that, if his grantor, Kern, can do what the counsel seems to claim lie lias accomplished. It is sufficient to add that such a doctrine should never be sanctioned by a court of justice.

We bad occasion to examine this subject in Meier v. Railway Co., 16 Or. 500, and we still adhere to tbe principle, there announced.

Tbe judgment appealed from will be affirmed.