Mr. Justice Benson
delivered the opinion of the court.
1. Defendant’s first assignment of error is based upon the fact that the court permitted an amendment to the complaint after the expiration of the ten days which had been allowed in which to amend. We need only to remark that amendments of pleadings are discretionary, and there is nothing in the record disclosing any abuse of such discretion.
2. It is next contended that the court erred in denying defendant’s motion to dismiss the suit when plaintiffs rested their case in chief, for the reason that they had failed to make a prima facie one. It is needless to go into the evidence upon this point; for, whatever the condition of the testimony may have been at that time, it was subsequently remedied, and this court has frequently held that a ruling on a motion for nonsuit *653will not be disturbed when tbe omission, if any, is subsequently supplied by either party: Caraduc v. Schanen-Blair Co., 66 Or. 310 (133 Pac. 636).
3, 4. Defendant then urges as error that the court ignored the effect of a former decree in the case of Heaverne v. Merryman, as county surveyor, which she insists establishes the boundary line according to her contention, and should therefore estop the plaintiffs from claiming the disputed land. There are two reasons why this assignment is without merit. In the first place, it is an affirmative defense which, in order, to be of any avail, must be pleaded, and defendant’s., answer contains no reference thereto: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513); Gladstone Lumber Co. v. Kelly, 64 Or. 163 (129 Pac. 763), and cases there cited. The second reason for disregarding this contention is found in the fact that the former suit referred to appears to be a proceeding under the provisions of Section 2991, L. O. L., which was instituted by defendant against the county surveyor in August, 1910. It appears from the evidence that in 1883 the boundary line was uncertain and in dispute; that plaintiffs and defendant’s grantor had the line surveyed, and agreed that the line so established should be the boundary line, and acted upon such agreement for many years; that the defendant took the land subject to such agreement. This being so, there was no dispute upon which to base the later proceedings, and as to plaintiffs they would be a nullity: Egan v. Finney, 42 Or. 599 (72 Pac. 133).
5. It is also earnestly contended by defendant that the affirmative matter in the reply is a clear depart-, ure from the cause of suit set out in. the complaint. We cannot agree with this. The complaint alleges ownership generally, and, where the defendant by *654answer denies this and sets np ownership and possession in herself, plaintiffs are undoubtedly entitled to set up facts which disclose the manner in which their title became unassailable. We find no inconsistency in the two.
The,remaining assignments attack the sufficiency of the evidence to sustain the findings of the trial court. The evidence is voluminous, and, in some details, conflicting, and the trial court had far better opportunity than we to determine where the truth lay. It is sufficient to say that in our opinion, the weight of the evidence supports each of the findings so made, and they will not he disturbed.
The decree of the lower court is affirmed.
Affirmed. Rehearing Denied.
Denied January 30, 1917.
On Petition for Rehearing.
(162 Pac. 863.)
Appellant’s petition for rehearing denied.
Mr. Turner Oliver, for the petition.
Mr. Jerry P. Bush and Mr. A. W. Schaupp, contra.
In Banc.
Mr. Justice Harris
delivered the opinion of the court.
A re-examination of the testimony brings us to the conclusion announced in the original opinion: McCully v. Heaverne, ante, p. 650 (160 Pac. 1166). The evidence for the plaintiffs details the circumstances surrounding the survey, explains the setting of the stakes, *655and tells about distributing tbe rails and building tbe fence. The overwhelming weight of the evidence supports the- contention of the plaintiffs that McCully and Roberts agreed upon the line, and that the fence was constructed upon the agreed line except where, •on account of a steep hillside or bluff, it was necessary to depart from the line. A petition for a rehearing urges that permission should be granted to take the testimony of Mrs. Ella Averill, a witness recently discovered by the defendant and who in 1882 was the wife of Roberts. She says in an affidavit that she did not know of any agreement between her former husband and McCully concerning the boundary line, and that .she once heard Roberts say “that some day he would have to move the fence out to the line.” The fact that she did not know of an agreement would have but slight tendency to prove that no agreement was made, especially when it is remembered that there is much affirmative evidence to show that the agreement was made. F. D. McCully testified that the agreement was in fact made; that Vail, who “was the chief surveyor in this section of the country at that time,” ran the line in 1882; that the fence was built; that afterward in 1883 Roberts and McCully “called the county surveyor from Union County, Mr. Eugene Chase,” and “he established this boundary line” in the presence of McCully, Roberts, Vail and probably W. C. Fleener, and Chase located the line exactly as it had been run by Vail; and that “we agreed that this was the comer as established by the county surveyor, and proceeded from that to lay out the town of Joseph, from that work in the fall of ’83.” C. L. Hartshorn stated that he helped to get “the rails out, or a portion of them, for building this fence”; that Roberts and McCully *656“came out to where they had the stakes set up and stones, and they showed me where to put the rails”; and again, that “Mr. McCully and Mr. Eoberts were-present there, both of them, and showed me where to put the rails and I distributed the rails along this, supposed line.”
6. Assuming, but not deciding, that it would be competent for Mrs. Ella Averill to testify that she heard her former husband say “that some day he would have to move the fence out to the line,” nevertheless the statement would not necessarily tend to disprove the existence of the agreement. On account of a steep hillside a portion of the fence was not laid upon the agreed line, and consequently Eoberts might well have said that it would be necessary at some time to move the fence “out to the line.” The declaration ascribed to Eoberts is not necessarily inconsistent with the agreement testified to by McCully.
7. The petitioner contends that she was in the actual' possession of practically all the disputed land. The-suit was commenced in October, 1914. The trial court expressly found from the conflicting evidence that the land “was not at the commencement of this suit in the-actual possession of another, and that the same was-not at that time in the actual possession of the defendant.” It is a noteworthy fact that as late as May,. 1915, or six months after the commencement of this, suit, the defendant was attempting to obtain possession of the land by inclosing it with a fence, and her attempt thus to gain possession is of itself evidence that she did not actually have possession. As we-read the record, the plaintiffs did not make the broad admissions contended for by the defendant. The evidence was conflicting. The .trial court had the some*657times incalculable advantage of observing and hearing the witnesses.
The decree was a just one. The petition for a rehearing is denied.
Affirmed. Rehearing Denied.