Sears v. Murdock, 117 P. 305

Sears v. Murdock

117 P. 305 | Or. | 1911

Mr. Justice Burnett

delivered the opinion of the court.

Taken in its entirety, considered with the fact that the defendant offered no evidence at all at the trial, 'the answer amounts to a confession and avoidance of the plaintiff’s cause of action. The defendant asserts, affirmatively, that the plaintiff was the owner of the property, and, until the contrary is shown, it is presumed that the plaintiff continues to be such owner.

1. It is of course axiomatic in trials of title to land that a party must recover on the strength of his own title rather than upon the weakness of his adversary’s holding; but when, as in this case, a defendant admits that the plaintiff was the owner in fee of the property and deraigns his own title from the latter, it is for the defendant to establish his title in the first instance. By his further and separate answer, the defendant assumed the task of showing that the plaintiff’s title once in existence had afterwards been defeated. He assumed the laboring oar; but, when the issue was presented, he refused to go forward, and a judgment should have been rendered for the plaintiff at that juncture upon the motion of the latter for that purpose. The plaintiff, however, took it upon himself to show affirmatively the defects in the defendant’s title, and it remains to be seen whether by his action in that respect he proved the defendant’s case.

2. The description of the property appearing upon the assessment rolls of Washington County for the years 1897 and 1899 is as follows: “N. W. Vi of S. W. Vi, section 33, township 2 S., range 1.” It is not stated in this description whether the property is in range 1 west or 1 east of the meridian. The variation of six miles thus left indefinite is sufficient to nullify the attempted description of the land. Such an assessment is void in the face of the statute requiring a full and precise description of the lands owned by each person. Jory v. Palace *214Dry Goods Company, 30 Or. 196 (46 Pac. 786); Martin v. White, 53 Or. 319 (100 Pac. 290).

The evidence thus offered by the plaintiff disclosed an incurable defect in the defendant’s title, so far as the same rested upon the tax proceedings alleged in his answer. No proof whatever of the other allegations of the answer having been offered, it was error to refuse the plaintiff’s motion for judgment.

The judgment will be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

Reversed.