60 P. 709 | Or. | 1900
delivered the opinion.
•This is a suit to remove a cloud from the title to lots 1, 2 and 4, in block 7, Town of Eola, Polk County, Oregon. The plaintiff deraigns title from one William Duran and Jane C. Duran, his wife, who conveyed them by warranty deed to Thomas J. Riggs, September 22,1855. Riggs having died, his heirs, conveyed them to Williams, England & Co., as mortgagees, for the use and benefit of O. J. Beardsley, with the condition that the deed therefor should be held as a mortgage to secure the payment of the purchase price thereof, and for other funds advanced and to be advanced by said Williams, England & Co. for her use and benefit. By due assignments and transfers subsequently made, the Williams & England Banking Co. became the owner of all the interest of Williams, England & Co. in and to said mortgage and premises. The property of the banking company having gone into the hands of a receiver, a suit was instituted, and on the-day of June, 1896, a decree rendered foreclosing said mortgage, and directing the premises in controversy to be sold, with other lands, to satisfy said indebtedness of O. J. Beardsley to the receiver. There was no sale uhder the decree, but O. J. Beardsley and her husband, O. P. Beardsley, executed to said receiver a confirmatory deed, for the consideration of $12,000, to the premises in dispute, and other lands therein described. It is alleged that plaintiff and his grantors have been in adverse possession of the lots since the twenty-second day of Septem
Three questions are presented: (1) Was plaintiff in possession at the time of the institution of this suit? (2) Have he and his grantors been in the adverse possession for more than ten years, it being conceded that defendant has the better paper title? (3) Did the said grantors intend that the premises in dispute should be included in the confirmatory deed?
Over against this testimony, it appears that Mrs. Beardsley, through her husband, who acted as her agent in the transaction of much of, if not all, her business in connection with the property, had these houses insured from year to year, making the loss, if any, payable to Williams & England Banking Oo. as its interest might appear. In the application for such insurance she represented that the property was covered by this mortgage ; that she was the sole and undisputed owner of the land and property to be insured, and that the title was in her name ; that she enjoyed the property, and had a bond for a deed; and that the property was occupied by the owner. These houses were built at an expense of about $500 each, a portion of the money being advanced by the banking company for the purpose; and they were constructed upon these lots, when it would have been just as convenient to have constructed them on the adjoining land. In these acts there was not only an exercise of absolute ownership, but an assertion of absolute title under the deed held by the banking company for her use and benefit. The defendant is the son-in-law of the Beardsleys, and it is a significant fact that he did not procure this deed until he had been informed by Beardsley that there was a prior outstanding deed, which information the latter had obtained from Mr. Slater while he was preparing the complaint for foreclosure proceedings ; and it is quite probable that, if it had not been for this disclosure, Reed would never have procured the deed under which he claims title. So that there is a strong motive present for the Beardsleys now to disclaim any ownership of these
There is some contention that the plaintiff recognized the defendant’s title by offering to rent the houses from him. But plaintiff had no such purpose. There was an attempt on his part to obtain defendant’s consent to the use of the houses by the tenants pending a settlement of the dispute, under a proviso that whatever arrangement was then made or entered into in that particular was not to impair the rights of either party to the controversy in the meanwhile. The arrangement was not agreed to,- and the negotiations did not amount to an acknowledgment of Reed’s title.
We come now to the, last question, which is not difficult of solution. While Mr. Slater was preparing the complaint for the foreclosure, he became cognizant of an outstanding deed to Shaw, and that he had conveyed it to Downer and others; and, having consulted with Beardsley touching the matter, the latter became cognizant of the fact, also. The complaint comprised in its general description of the premises the lots in dispute, but did not designate them specifically. The decree, however, went further, and specified in the description “all of block seven.” The confirmatory deed was prepared in July, 1896, by Mr. Slater, the bank’s attorney, but was not executed by the Beardsleys until November 13, 1896. Mr. and Mrs. Beardsley both testify that they