55 P. 443 | Or. | 1898
Lead Opinion
delivered the opinion.
Action upon a covenant of warranty. The complaint states, in substance, that on July 19, 1893, the defendants, in consideration of $1,200, attempted to convey by deed to plaintiffs certain premises situated in Multnomah County, Oregon, containing eighty acres, which deed contains the following covenant, viz.: “The grantors above named do covenant to and with I. A. Jennings and W. D. McIntosh, the above-named grantees, their heirs and assigns, that the above-granted premises are free from all incumbrances, and that we, our heirs, executors and administrators, shall warrant and forever defend the above-granted premises, and every part and parcel thereof, against the lawful claims and demands of all persons whomsoeverthat at the time of the execution of said deed, ever since, and now, the title to said land was and is in the United States, and the land itself was and now
Trial was had before the court without the intervention of a jury, and findings, among others, were made and filed, in substance, as follows : (1) On July 25,1866,
“When,” says Depue, J., in Kellogg v. Platt, 33 N. J. Law, 328, 335, “a paramount title is asserted by such acts, or under the circumstances mentioned, a constructive eviction takes place, and the covenantee may abandon the possession, or purchase in the adverse title, and retain his remedy upon the covenant of warranty.” As sustaining this view of the nature of the obligation under the covenant of warranty and the requisites attending its breach, see, also, McGary v. Hastings, 39 Cal. 360 (2 Am. Rep. 456) ; Loomis v. Bedel, 11 N. H. 74; Claycomb v. Hunger, 51 Ill. 373 ; Shattuck v. Lamb, 65 N. Y. 499 (22 Am. Rep. 656) ; Sprague v. Baker, 17 Mass. 586 ; Estabrook v. Smith, 6 Gray, 572 (66 Am. Dec. 445). Accordingly, it is said that a constructive eviction arises “if the land be unoccupied, and remain so after the purchase, when the paramount title is hostilely asserted in some public manner, so as to disturb the constructive possession” (19 Am. & Eng. Enc. Law (1 ed.), 994); such as a sale by the state while holding the paramount title
It is insisted, however, that Kiernan’s deed was not recorded, and because of that fact Us pendens attached as against his purchase. The record does not show the fact, bht, conceding it to have existed, the position is untenable under our recording acts. Conveyances are required to be recorded within five days after their exe
There remains but one other question. The plaintiffs having failed to establish defendant’s privity with the government’s suit, the decree therein rendered did not establish a paramount title in the government as against them, and they are free to controvert the allegation of the existence of such title in the present action. The plaintiffs were required to prove its existence, and this they must have shown independently of the final determination of the federal court. In short, the decree there
Rehearing
On Petition for Rehearing.
[56 Pac. 72.]
delivered the opinion.
In consideration of the petition for rehearing filed herein, we have carefully re-examined the record of this cause, but find no reason for disturbing the conclusions reached in our former opinon. It is a rule of law that the findings of fact need only cover the issues made by the pleadings. But sometimes it is necessary or convenient, considering the nature of the case, to find facts in detail to support competent allegations of the probative fact. Thus, an averment that plaintiff is the owner in fee simple of a tract of land would be held good pleading touching the fact, and a finding in the same language would be sufficient to support a conclusion of law that he was entitled to recover; yet the court might extend
Rehearing Denied.