Remillard v. Prescott

8 Or. 37 | Or. | 1879

By the Court,

Boise, J.:

The appellants claim that their demurrer to that part of the answer of the respondent Prescott which sets up a conveyance of the property from Chapman to Nodine and Bennington, and from them through mesne conveyances to Prescott, should be sustained. As this conveyance from Chapman to Nodine and Bennington was made after the deed from Chapman to Craig and Prescott, we think there is no question but what this part of the answer constitutes no defense, and that the demurrer is well taken, so that Prescott has by the pleadings no further interest in the property in dispute than that which he holds under the deed from Chapman to Craig and himself, which is an undivided half interest.

We will now consider Prescott’s interest under this last named deed. The appellants allege that in March, 1865, A. C. Craig purchased these lots of J. A. J. Chapman; that thereafter, no deed having been made by Chapman to Craig therefor, and Craig being absent from home, “ defendant Prescott, acting for and in behalf of Craig,” on his own motion, procured of respondent Chapman a deed for said lots in fulfillment of said contract of purchase. But “by mistake, inadvertence, or at the solicitation of defendant Prescott, said deed of conveyance was executed by said Chapman to said Prescott and Craig when it should have been to Craig alone.” These allegations are denied and the determination of the case must rest on the discussion of these issues of fact.

It is alleged that the name of Prescott was inserted in the deed by mistake. Craig, who is a witness for the appellant, testified in relation to his purchase of the lots from Chapman that he was to have the lots for improving them. This improvement commenced in February, 1864. He then put up a building in the spring of 1864, twenty by twenty-six feet. There was no particular understanding what the improvements were to be. He then put up an addition, making the building forty feet in length, with a small kitchen attached. He states also that he paid the taxes on the property until he sold it, and collected the rents, and that he was in sole possession. He is corroborated as to the possession and receiving the rents by the appellants, and other witnesses of the appellants. Prescott testifies that the lots were deeded to himself and Craig by Chapman in consideration of their improvement, Chapman, who was the proprietor of the town of Union, being desirous to have these improvements made to build up the town, and thereby enhance the value of his adjoining property; that no consideration was paid for them except one or two dollars which he paid; that he helped Craig to put the improvements on the lots; that he negotiated with Chapman for lot five, and had an understanding with Craig that they were to improve and own the lots in common; and that fearing that Chapman’s property would be attached, he procured the deed and had it recorded. Craig and Chapman are the only witnesses who have personal knowledge as to their understanding of the ownership of the property when the deed was executed. Prescott is the only witness who knows whether or not there was a mistake made by Chapman in executing the deed to Craig and Prescott instead of to Prescott alone, and he testifies that the deed was executed by Chapman to himself and Craig according to Chapman’s, Craig’s, and his understanding at the time; and that they, Prescott and Craig, were to have the lots in common for improving them.

We think from this evidence that it is not proven that the grantor Chapman, made a mistake as alleged when he executed the deed. In order to show a mistake, it should be shown that Chapman, the grantor, was a party to it. (Lewin on Trusts, 201; 33 Beav. 133; Kerr on Fraud and Mistake, 429; 1 Perry on Trusts, 217.) In order to establish a mistake in a deed it is necessary to show it by clear and convincing proof, as the evidence must overcome the strong presumption which exists in favor of written instruments, which should not be annulled by uncertain and contradictory testimony. (Gillespie v. Moon, 2 Johnson’s Ch. 279; Hillman v. Wright, 9 Ind. 126.)

The next question is, did Prescott obtain this deed by fraud? On this subject the testimony is conflicting; Craig and Prescott being the only witnesses who have any personal knowledge, and they disagree. There is some evidence of the acts and declarations of Prescott which tend to corroborate the testimony of Craig, that he alone was to have the deed. He seems to have had the control of the properly after the deed was made, except while he and Prescott occupied it as a saloon. There is on the other hand the fact that Craig, knowing that the deed was made to Prescott and himself, made no effort to get the whole title, and when he sold the property made a quitclaim deed to it, granting simply his right in the premises. He and Prescott were also, at the time the deed was made, partners in business, and in circumstances where they would be likely to embark together in such an enterprise. And there is also the fact that Prescott was at the pains to obtain the deed and paid the nominal consideration therefor.

Prom the whole evidence we think the fact of fraud in obtaining the deed is not clearly established, and that we would not be warranted in finding that the deed was obtained from Chapman by fraud, and that to do so on the evidence before us would be going beyond the rules established in any of the numerous cases cited by counsel.

The only remaining question is as to the estoppel. The appellants claim title by estoppel, and if they intended to rely on such title, they should have pleaded it in the complaint, as they had an opportunity to do so. They made their case in the complaint, wherein they relied on the fact that Craig had purchased the property from Chapman and that by mistake on the procurement of Prescott the deed was made to Prescott and Craig. We think, therefore, that the matter of estoppel as sustaining the claim of the appellant as prayed for can not be considered in the case.

There were some other questions which were discussed to some extent in the argument which are not pertinent to the issues as made by the pleadings, and it is not necessary to consider them here.

We do not find any error in the findings or determination of the circuit court, and its decree will be affirmed by this court with costs.