White v. Proebstel

130 P. 732 | Or. | 1913

Mr. Justice Eakin

delivered the opinion of the court.

Counsel claims to have offered the decree in the case of Goodsell v. Proebstel in evidence only to show an admission on the part of Frederick Proebstel in allowing the decree to go against him reforming the deed; and, plaintiff claiming no more, it is not necessary to consider whether the reformation of the- deed operated to actually reform the deed, or was only a quieting of the title of the plaintiffs in that suit.

1, 2. Defendants contend that the deeds from Gris-wold to the plaintiffs are void, because the plat to which they refer is too indefinite to identify the property or to connect them with the alleged error in the deed from Frederick Proebstel tó Wendel Proebstel; but the deed and plat, taken together, are not void for failure to identify the property. That is certain which can he made certain: Bogard v. Barham, 52 Or. 121 (96 Pac. 673, 132 Am. St. Rep. 676), where it is said that if a tract or lot has acquired a name-to distinguish it, and by which it is known, the same may be conveyed without reference to the boundaries. This tract is known as “plat of the Griswold tract,” being a part of the City View addition of Albina, in section 21, township 1 north, range 1 east, near Albina, and the deed of dedication describes it as upon a part of the donation land claim of Frederick Proebstel, and lot 5 of said section 21 was conveyed to Griswold: therefore, we now have the “plat of the Griswold tract” located as part of said lot 5. By Proebstel’s deed to Snodgrass, he conveys by metes and bounds the west 406.3 feet of said lot, and “also lots 1, 2, and 8 in block 13 and lots 4, 5, 6, 7, and 8 in block 11 of the Griswold tract.” Thus by Proebstel himself we have further identity of the platted ground as lot 5, section 21. If the 40-acre tract were just 80 rods long, that would make it 1,320 feet in length. The plat includes 950 feet east and west of the Griswold tract, and the part described by metes and bounds in the Proebstel deed to Snodgrass is 408.9 feet, which takes the whole of the said lot 5. First, we have a name that identifies the platted ground as the “Gris-wold tract,” and extrinsic evidence may be resorted to to locate it. Proebstel also is bound by the plat, as he conveyed lots described by reference thereto: Oregon City v. Oregon & California R. Co., 44 Or. 165 (74 Pac. 924); Kuck v. Wakefield, 58 Or. 549 (115 Pac. 428). So far as the identity of the plat is concerned, this case is almost identical with Jaeger v. Harr, 62 Or. 16 (123 Pac. 61). There was no occasion-to locate the several lots of the plaintiffs other than as part of lot 5, section 21, their title being in question only so far as relates to the error in the Proebstel deed; and we hold that the description is sufficient for that purpose. However, there is sufficient extraneous evidence here as to the particular location of the lots of these plaintiffs to locate them, were that necessary.

3. This brings us to the real question in the case, Was there a mistake made in the deed from Frederick Proebstel to’Wendel Proebstel of date September 24, 1857? The deed from Frederick Proebstel to Wendel Proebstel was executed in Portland before a justice of the peace; and by the fact that the description of the property in the deed follows so closely the exact words and expressions of the register and receiver’s receipt, except in using the word “west” instead of “east,” it is plain that the scrivener had the register and receiver’s receipt before him, and attempted to copy therefrom the description. This, taken'in connection with the fact that there is no northwest quarter of the southwest quarter of section 21, in the township mentioned, shows that it was a mistake to include such. There is another circumstance that had great weight in bringing us to this conclusion, namely, on March 9, 1901, the Title Guarantee and Trust Company, with a view to insure the title to the ‘ ‘ Griswold tract, ’ ’ wrote to. Frederick Proebstel, the letter being Exhibit H, as follows:

“ [Letter-head.]

“Portland, Oregon, March 9th, 1901.

“Frederick Proebstel, Esq., Baker City, Oregon—

“Dear Sir: In examining the title to a tract of land within the boundaries of the donation land claim covered by your patent from the United States dated February 11th, 1865, and recorded in this county, we find that on the 24th day of September, 1857, you made a deed to Wendel Proebstel, your brother, for certain property which we think was intended as your entire donation land claim. This deed has been recorded in Book A, page 488, of our records. The description in this deed is evidently erroneous, for part of the property mentioned is in the Willametté river, instead of within the boundaries of your claim. Of course at this time you cannot recall the exact description of the property which you conveyed to your brother, Wendel, but will you write us whether or not it was your intention to convey your entire, claim.

“Tours very truly.”

Proebstel answered:

“La Grande, Oregon, 4-20th, 1901.

“T. G. & T. Co., Portland, Oregon—

‘ ‘ Gentlemen: If the numbers are wrong on the deed I made to the property you mention, I will try and make it right for a reasonable consideration.

“Very respectfully,

“Fred Proebstel.”

This was evidently the first information Frederick Proebstel had of the mistake in the deed, and the first time he attempted to profit by it. His letter must be considered with reference to the letter from the Title Guarantee and Trust Company to him, and, so considered, is a practical admission that it was his intention to convey his entire donation land claim to his brother, and that at that time his only interest in it was to find how much there was in it for him. That feature of the situation seems to have grown on him with time, and the possibilities thereafter developed. This is shown in his own testimony. On October 8, 1908, he conveyed by warranty deed to W. J. Snodgrass the parts of this lot 5 which had not been transferred by Griswold; but in his testimony he says that he made the deed to Snodgrass in trust. “He was going to see that— He was going to take it to law, and see if there was any law against it. * * I sold it to Snodgrass in that-way; that he was to see it through 'and see if they are going to sue it. * * That land was mine. I had never sold it.” Thereafter Snodgrass negotiated with some of these parties, asking $250 a lot to settle. In attempting to make plausible his contention, Proebstel testifies: “I sold him [meaning Wendel Proebstel] what was in the bottom; what land I had in the bottom”—but it appears from the evidence of other witnesses that 40 acres additional of the Proebstel donation land claim is on the bluff. The decree reforming the deed from Frederick Proebstel to Wendel Proebstel in the suit of Goodsell v. Proebstel made the said conveyance include lot 5 of section 21. Defendant Frederick Proebstel was a party to that suit and appeared therein, which also tends to establish that the deed of 1857 was, in fact, a mistake in not including lot 5 of section 21, and that it should be reformed as prayed for. We are well satisfied that the decree of the Circuit Court is an equitable one.

The decree is affirmed. Affirmed.