118 P. 1026 | Or. | 1911
delivered the opinion of the court.
It appears from the evidence and record that on March 9, 1872, the State Land Board executed a deed to the land in question to one C. Laxton, who on the 18th day of July, 1872, conveyed the same to E. S. and J. T. McComas. The latter, with their wives, on September 1, 1877, in consideration of $560.89, executed a deed thereof to the State of Oregon, J. T. McComas and wife acting by E. S. McComas as attorney in fact. The evidence does not disclose that any power of attorney or authority was given to E. S. McComas to convey the interest of J. T. McComas and wife. On August 21, 1882, the State Land Board contracted to sell the land in question to the plaintiff, together with the N. % of the quarter section, and issued to him a certificate of sale, conditioned upon the payments for the land being made. Plaintiff made a payment of $64.58, and executed two notes, each for $64.58, payable in one and two years, respectively, for the balance of the purchase price, and, as his receipts show, paid interest on the deferred payments until September 2, 1893, when payment was discontinued. He was informed by the clerk of the State Land Board on November 14, 1898, that unless he paid
“In legal language, the intention guides the entry, and fixes its character.”
Ewing v. Burnet, 36 U. S. 41, 51 (9 L. Ed. 624). It is said:
“Adverse possession may best be defined as an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right—either openly avowed or constructive, as arising from the acts and circumstances attending the appropriation—to hold the land against him who was seised. The principle upon which the statute of limitations is applied is not merely that the party pleading it has set up an adverse claim as having existed during the period specified in the statute, but that the adverse claim is accompanied by such an invasion of the rights of the opposing party as to give the latter cause of action, which, hot having been prosecuted within the time limited by law, is presumed to be extinguished or surrendered.” Buswell’s Limitations and Adverse Possession, § 237. “Where the possession commences by the permission of the owner, there can be no disseisin or adverse possession until there has been a disclaimer by the assertion of an adverse title, and notice thereof, either actual or con*253 structive.” Wood, Limitation of Actions, § 256, p. 507; 1 Am. & Eng. Enc. of Law (2 ed.), 798.
It is contended by counsel for defendant that the occupancy of plaintiff under his contract for the purchase of the land inured to the benefit of defendant’s, grantor, for the purpose of perfecting the title of the latter by adverse possession. To this' counsel for plaintiff answers that defendant expressly pleads his title
“When the statute is relied on as a bar to the remedy merely, it must be specially pleaded. * * But, where the title to real estate is in question, the operation of the statute is found to have a higher range. It is capable of conferring an absolute title. Hence it has long been held that a general denial of the plaintiff’s title will suffice for the admission of evidence or adverse possession for the statutory period, because this will not merely bar the'*256 remedy, but may establish a title in the defendant which will conclusively negative any ownership in the plaintiff. In other words, it sustains and verifies the denial of the plaintiff’s title.”
From the record and evidence on the part of plaintiff, as well as that of defendant, we think that plaintiff has failed to sustain the allegation of his complaint as to adverse possession of the land for the statutory period, and, as between the parties of this suit, that defendant is the owner in fee, and entitled to the possession of the whole of the land.