PAILT CAFTTAX JOrSSAL. &ALEM, OREGON, FIUDAr DgCT.VEJJt, 8, 1911.
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ty every member
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NATIONAL BISCUIT
COMPANY
OREGON SUPREME COURT DECISIONS
rU Text PmbU.... b, Ceirtety .f , i Tamer, Bep.rt.r , U,
8apra Peart
Stephenson Van Bloklaad, t nlon
Decided Not. IS. 1911.
Thomas Stephenson, respondeat,
r. Andrew Van Blokland. appellant.
Appeal from the circuit court for
Union county. The Hon. J. w.
Knowles, Judge. Argued and sub
mitted November 1, mi, at Pen
dleton. J. D. Slatr for rPrvinHnf
. -vi'WMUCUh.
Jno. S. Hodgln for appellant. Bean.
J. Modifled.
This g , gUlt to quiet title to
the south half of northwest quarter
of section 19, In township 3 south
of range 38 E. W. M., Union coun
ty, Oregon. Froma decree awarding
one-half of the land to each party,
defendant appeals.
The plaintiff alleges that he Is
owner In fee. In the possession of
theland, and entitled to the posses
sion of the same: and that defen
ded Van Blokland claims some In
terest therein, adversely to plain
tiff. Defendant Van Blokland, by his
answer, denles the main allegations
of the complaint, and alleges that
he Is the owner of the land by vir
tue of a deed from the Btate of Ore
gon, and In possession thereof.
Plaintiff repiea, denying the new
matter of the answer, and avers
that on August 21, 1882, he went
into actual possession of said prem-
s,-claiming to own the same
against all the world except the state
of Oregon, and so continued until
the state land board refused to
grant him title to the lands; that
since that time he has been in ad
verse possession of the land, and ny
reason thereof, defendant Is es
topped from claiming said land un
der his deed from the state, and
pleads title to the land by prescrip
tion. The members of the state
land hoard were made parties de
fendant but the complaint on motion
of plaintiff, was dismissed
them.
Bean, J. It appears from the evi
dence 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, exe
cuted a deed thereof to the state of
Oregon, J. T. McComas and wife act
ing by E. S. McComas as attorney In
fact The evidence does not disclose
that any power of attorney or author
ity 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 north half of the
greater 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 re
ceipts Bhow, paid Interest on the de
ferred payments until September 2,
1893, when payment was discon
tinued. He was infrmed by the
clerk of the state land board, on No
vember 14, 1898, that unless he paid
the amount then due, his certificate
Xo. 122 would be cancelled. About
this time Mrs. M. R. Stephenson, the
plaintiff's wife, applied for the pur
chase of tie land, and both Mr. and
for the reason that the same had been
conveyed to Laxton a long time be
fore. Plaintiff requested the state
land board credit the amount he
had paid for the south half of the
quarter section upon the payment
of the north half and Informed the :
board that If they would not do so.
,they could canoel.his certificate. In
hla testimony, referring to his claim
to the land, he Mid, "I threw It up.'
After notice oad been duly given
him, the at ate land board, on De
cember 27, 1898, cancelled his cer
tificate tor non-payment, notifying
him to that effect, and Mrs. M. R
Stephenson applied for and pur
chased the north half of the quar
ter section.
Ill I Ml Ml IM M I I I I MIMIIIIIM'
Red Croc3 Stamps for Sale Hero:
Deceihte Sale of Wcmon'o
and Misses Coats and Suits
It appears that plaintiff, while
holding this certificate of sale, cut
from the land large quantities of
wood, about a thousand cords;
built a cabin on the tract and culti
vated a garden of about one acre
fenced separately. By connecting a
fence with fences on adjoining
lands, he enclosed the quarter sec
tion, using a portion thereof for
pasture. Formerly the land was
timbered, and now It Is partially 1
covered with brush, "being suitable
for pasture, about five acre, of
which Is tillable.
Defendant Van Blokland,' In con
sideration of $400, purchased the
land In question about December
14, 1909, and obtained a deed
therefor from the state on May 3,
1910, which was duly recorded In
Union county on May 7, 1910.
It therefore appears that the
plaintiff claims title to the tract, by
adverse possession thereof for the
statutory .period, while the defen
dant, Van Blokland, claims title by
virtue of his deed from the state of
Oregon.
Plaintiff's contention la that after
ag t0' obtaining a certificate of sale from
the state in 1882, he had been in
the actual, exclusive possession of
the land, claiming to own the same
I against all the world except the
'state of Oregon, Until the state land
board Informed him that It could
not convey the land, and plaintiff's
counsel argues that the case comes
within the rule announced 1n Boe
v. Arnold, 54 Or. 52. In other
words, It is not claimed that the
statute commenced to run as against
(the state or Its grantee, until De
cember, 1898. ' The plaintiff, .dur
ing all that time, recognized the
title of the state, and held posses
sion of the premises In subordina
tion thereto, attempting for a while
to obtain title from the state. At
the time of the cancellation of his
entry and the purchase of the north
half of the quarter section by his
wife, the plaiuttff appears to have
abondoned all claim of right to pur
chase from the state, and the whole
matter In regard to his application
to purchase from. .the state was at an
end.
In the case of Boe v. Arnod, It
was held that, "One claiming title
to land by adverse possession for
the period of 10 years as against
all persons, but recognizing the su
perior title of the United States gov
ernment, and seeking in good faith
to acquire that title, may assert
such adverse possession as against
any person clnlming to be the own
er under a prior grant."
. In that ense, one Chandler, who
was' the predecessor in Interest, arid
lessor de-appl'catlon
mm
ill
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You all know lie splendid vah:
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Every Coat and Suit we offer are late Fall and Winter
models of excellent materials, made by men tcHors and
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Suits, plain serges and novetly suitings in greys,
uiuwiioi navy, uiauNi unu lunuy mixtures. '
Our regular prices $8.50 to $10,00, Special $5.00.
Our regualr prices $12.50 to $15,00. Special $7.50
Our regular prices $17,50 to $20,00, Special $10.00.
Our regular prices $27,50 to $35.00, Special $17.50
Coats, Polo Coats, Box Coats, Plaid Back and Novelty Ma-
tannic. ' v T
Our regular prices $8.50 to $10.00, Soccial -$5.6(1
Our regualr prices $12.50 to $15.00. Special $7.50
Our regualr prices $1 7.50 to $20,00. Special $10.00
HAIR GOODS We have arraneed with Mrs. Overtroots. of Pnrti
to conduct a special sale of fine hair goods at our store. Puffs, Trans-
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Una balr goods. An expert Is In charge and she will e pleased to talk ','
witn you. on this subject.
t Quality
S
i Merchandise
U,6.
; 145-147 North Lbcrty.Street
Between State and Court Streets
Popular i
Prices '"-i.
Mrs. Stenhenson wire Informed by
the clerk of the state land board that , from whom defendant's
th te could not execute a deed to ralgned title, filed his
the south half of the quarter section,
ft
if :2h Tf (P
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Satel Laundry Co.
136-1 66 S. Liberty St
Telephone Main 25
for a homestead mUry on the land.
February 18, 1893, alleging contin
uous settlement since iiSl, and af
ter a contest In the local land office
the derision being In favor of Chan
dler, final certificates was Issued to
htm on December 26, 1904, and a
patent to the premises Issued to the
heirs of Chandler, March 6, 1906.
In the case at bar, plaintiff, attempts
to assert adverse possession as
again a subsequent grant, defen
dant claiming title as grantee of the
state of Oregon, and standing In the
shoes of the state as to the very
title to the land, which the plaintiff
at all times recognized from 1882
uatil 1 890, differing entirely from
the facts In the case of Boe v. Ar
nold. ,
The statute of limitation does
not commence to run until a cause
of action accrues; and It Is riot
claimed In this case, that, as against
the state, the possession of plaintiff
was adverse, or that the statute was
set In motion until December, 1898.
U Is conceded that the statute did
not run after the passag of the act
of 1903: L. O. L. Sec. 13; State r.
I Warner Valley Stock Co. 56 Or.
; 283; 108 Par. 861,
I "In legal language, the Intention
i guides the entry, and fixes its char
iarter." Ewlng v. Burnet. 38 V. S.
!40, 51.
It is said, "Adverse possession may
bfst be defined as an actual, visible,
and exclusive appropriation of land,
commenced and con'lnued under a
claim of rght either openly avowed
or constructive, as arising from the
acta and circumstance attending tr
appropriation to hold the land
against him who was seized. The
principle upon which the statute of
limitations Is applied is not merely
that the party pleading It haa set up
an adverse claim as having existed
during the period specified In the
Btatute, but that the adverse claim
Is accompanied by such an Invasion
of the rights of the opposing party
as to give the latter a cause of ao-'
tion, which, not having been prose
cuted within the time limited by law
Is presumed to be' extinguished or
surrendered." Buswell'i Limitations
and Adverse Possession &K. 237.
"Where the possession commences
by the permission of the owner, there
can be no disseisin or adverse pos
session Until there has been a dis
claimer by the assertion of an ad
verse title, and notice thereof, either
actual or constructive.' : Wood on
Limitation of Actions, Sec 256, p.
507; 1 Am. ft Eng. Eno. of Law, 7!U.
The plaintiff entered under an ex
ecutory contract of purchase and
thereafter In no way notified the
state that he claimed the land In hot
tltllty to Its title, and there was no
overt act on his part which would
amount to constructive notice there
of. In 1882 he entered and held the
land under the defendant's grantor,
by virtue of his certificate of sate or
contract to purchase, until 1898. His
posHesslon appears to have been suf
ficient to set the statute In motion,
It bis possession had been hostile to
the state. Since that time he has
shown no different claim except that
he abandoned his right to purchase,
allowed the cancellation of his entry,
and permitted his wife to purchase
the remainder of the quarter section.
Plaintiff does not show that he
claimed ownership In any way since
that time or before, except in subor
dination to the tltlo of the state, and
It Is njt shown that he ever asserted
any title. He appears to claim some
right by virtue of his contract with
the state, and Introduces evidence
of payments' thereunder.
It wag said by Mr. Chief Justice
Eakln in Bayne v. Brown, (Or ) 118
Pac. 282: "It is the adverse posses
sion under a claim of ownership that
establishes the title. " Plaintiff's
possesion was not hostile to the state
nor under claim of ownership.
It Is urged by counsel for plaintiff,
that on account of the letter uf the
clerk of the state land hoard to the
effort that the state could not con
vey the land, that thereby tho pre
sumption of the delivery of the deed
from E. 8. McComas et al. to the
state, was contradicted. It Is not
shown by any testimony that the of
ficers of the state did not have full
cognizance of the deed referred to,
at the time of Its execution and for
many years thereafter.
The fact that the clerk of the state
land board, at one time, did not have
the land In question listed, and di'l
not know that the same had been
deeded to the state, and the Instru
ment duly recorded In 1877, would
not, In our opinion, In the absence
of proof tending to show that there
was no delivery of the ded, and
without the assertion by plaintiff of
a valid claim of title to tho land,
defeat the title of the state or change
the erfect of the deed to the state,
or overcome the presumplon of de
livery of the deed arlHlng from the
recording of the same. If
title of the state to Its land( while
ltB officers and agents are periods
lcally changing, would be of but lit
tle force or value. Tho conveyance
was apparently executed at the In
stance of,' and accepted ' by, ' some'
agent or attorn of the state. The
clerk of the state land board had
no authority to disclaim title to the
tract of land for the board or for the
tate-
'The mere . parol declarations,
against hid own Interest,' of the owner
olthi 'record 'mid' are nWtiot '6W
dence to 'defeat such" title-, as being
Inadmissible under the statute of
frauds." . Buswell'a Limitations and
Adverse Possession, See. 236, citing
Jackson v. Gary, 16 Johns. 303. On
the other hand, under L. O. L., See.
799, subcllv. in, creating the pre
sumption that official duty has- been
regularly performed, It . should, we
think, be assumed that the deed re
ferred to, recorded In 1877, was reg
ularly accepted, pursuant to law, by
the proper officers -of the state: Mo
Leod v. Lloyd, 43 Or. 260. ,
CoaLlaued'on Page 6.)
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