2 Or. 288 | Or. | 1868
The pleadings in this suit are the second amended complaint, the answer thereto and the replication to the answer. The complaint and answer raise two main issués: 1st. Did the appellants, on the 18th day of February, 1860,
The second error assigned is as follows: Admitting no error on the first point, the court erred in not decreeing and awarding the property in said lots 7, 8 and 9 to appellants, .by virtue of their purchase from Charles W. Shively, who in turn purchased them from Ezra Fisher, respondent’s vender of said lots in said block. From the evidence submitted this court finds that the respondent did, in 1816, enter into a contract with Fisher to make him a quit-claim deed to the lots referred to, when he should acquire a title from the United States government; that Fisher did attempt to sell and convey said lots to Charles W. Shively on the 30th day of June, -1855 ; that in April, 1861, Charles W. Shively attempted, by deed, to convey them to John M. Shively, appellant.
It is admitted that John M. Shively became possessed of Ihe legal and equitable title of the United States to the lots in dispute, and had the title when the appellants made the deed of 1860. Welch’s contract with Fisher only bound him to make a quit-claim deed to the contested lots when he had received a title from the United States government. But the title of Welch to the lots was not acquired by him from the United States government, but from the appellants, and is not within the agreement with Fisher, nor in any manner
Finally, it is assigned that the court erred in overruling the-motion, by appellants, for a modification of the decree in this-suit, so that the same should be without prejudice to any other subsequent suit or proceeding, for or concerning said lots 7, 8 and 9 in block 114.
We think the court did not err in overruling the motion,, first, for the reason that the lots named were not inserted in the deed of 1860 by mistake; secondly, becausé John M. Shively, appellant, was the grantee of the United States, and had the legal and equitable title, when the appellants made the deed of 1860.
Decree is affirmed.