Miller v. Fisher, 174 P. 1152

Miller v. Fisher

174 P. 1152 | Or. | 1918

JOHNS, J.

1, 2. The deed from James Steel and his wife to Anna Augusta Fisher was executed on November 30, 1883. The ex parte affidavit of James Steel was made on May 19, 1908, more than twenty-four years after the execution of the deed, and five years before the action in ejectment was instituted. It would not be evidence of any fact jbn this case: Section 790, L. O. L.; and neither would the payment of taxes upon either of said lots by any person be evidence upon any disputed fact in this case.

3-5. On November 30, 1883, Anna Augusta Fisher purchased and acquired title to lots 20 and 21 of Block 2 as shown on the original map and plat of Park Addition to Albina filed September 9, 1882. There is nothing in the record which shows or tends to show that as between her and the Steels there was any mistake in the execution of that deed, and a mistake must be mutual or a court of equity will not grant relief. In a suit to reform a contract on the ground of mutual mistake the burden is on the plaintiff to show the mistake and prove that it was mutual: School District No. 4 v. Hartong, 89 Or. 155 (173 Pac. 570). The effect of such conveyance was to vest in Anna Augusta Fisher the title to lots 20 and 21 of Block 2 of Park Addition to Albina and to convey any title which the Steels then had to such lots, and any effort or attempt on their *115part on December 17, 1887, to correct or amend tbe original map or plat by them executed and filed on September 9, 1882, would be null and void as to Anna Augusta Fisher or her heirs.

6. While the deed for lot 17 from the Steels to Mrs. Woodruff, from whom the plaintiffs deraign title, was executed on December 7, 1882, it appears from the body of the deed that it was conveyed as “Lot Seventeen.(17) in Block number Two (2) in Park Addition to Albina.” The same thing is true as to the Johnson deed, which was executed May 10,1884, and at the time of the execution of all of these deeds the original plat of September 9, 1882, was then on file and of record. There is no testimony outside of the deeds, and in the absence of such testimony it must be assumed that these parties bought and acquired title to the lots described in their respective deeds, and as the same appear on the then recorded map or plat thereof.

The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.

McBride, C. J., and Bean and Burnett, JJ., concur.