Wilson v. McEwan

By the Court, Kelly, C. J.: This was an action of ejectment brought by respondents against tli6 appellants, W. G. McEwan and Jessie McEAvan, his Avife, to recover the possession of block number 11 in Shively’s, Astoria. The respondent, Ann B. Wilson, claimed to be the owner of a life-estate in said block, and respondent, Mary E. Wakeman, claimed to be the owner in fee of the same property, subject to the said life-estate. McEwan and his Avife answered that they Avere in possession of block 11, claiming lot 7 as the property of Jessie McEwan, and holding as tenants of A. J. Welch for the lots in said block, and as tenant of James Welch’s heirs for the remaining lot. The landlords Avere admitted to. defend, and all the defendants denied title in respondents. Nancy Welch, the Avidow of James Welch, deceased, claimed dower in lot 1. The defendants further set up twenty years adverse possession by themselves and their grantors. The case having been submitted to the court for trial without a jury the following facts were found by the court. — 97 — 1. That on and prior to the eighteenth day of April, 1845,. James Welch and John M. Shively were jointly occupying and claiming a tract of land in the Territory of Oregon, and in what is now Clatsop County, Oregon. 2. That before said eighteenth day of April, 1845, John M. Shively had laid out the larger portion of said tract on paper, and partly laid out and surveyed on the ground a town, leaving blocks subdivided into lots, along with streets and alleys, and called by him Shively’s Astoria. 3; That on the eighteenth of April, 1845, said James Welch executed an instrument of writing, by signing with his own hand and sealing the same with a pen scroll, having only one subscribing witness, andnotacknowledged, whereby and wherein he authorized, constituted and appointed John M. Shively his true and lawful attorney, for him and in his name and behalf, to bargain, sell or dispose of, in any way he, said attorney, may see fit, to any person whatever, any lot or lots owned by him and said Welch jointly in the town of Astoria, as fully and effectually as said Welch might or could do if personally present; and binding himself, his heirs, executors and administrators, to ratify the same, which said power of attorney was delivered to said Shively by said Welch. 4. That said Shively afterwards having said power of attorney, and the same being unrevoked, and having such force and effect as it had, if any, on its delivery, afterwards, to wit, on the third day of June, 1846, at some place outside of the Territory of Oregon, but where does not appear, executed an instrument of writing, in his own name and in the name of James Welch, and as attorney in fact for said Welch, whereby the said John M. Shively and James Welch, as grantors, according to the terms of said instrument, for the “consideration of five hundred dollars, have granted, bargained, sold, and by these presents do convey,” unto General John Wilson, of the town of Fayette, Howard County, State of Missouri, land described thus: The following described tracts or parcels of land, in the town of Astoria, in the said Territory of Oregon, being part of the settlement right of the said John M. Shively, on which he — 98 — lias laid out and surveyed the said town of Astoria, viz.: Lots Nos. 1, 2, 8, 4, 5, 6, 7, 8, 9, 10, 11, and 12, forming Block No. 11, which block is bounded north by Water street, east by Spruce street, south by West First street, and west by Pine street; which lots are each fifty feet front, and one hundred and forty-two feet and one half foot back, bounded on an alley fifteen feet wide, which runs through the center of said block, nearly east and west, which will more fully appear by reference to the plat of said town of Astoria, so laid out as aforesaid, which said plat has been lithographed by E. & J. Hutawa, of Saint Louis, Missouri, to which reference is here made;” and covenanted as grantors with said grantee, his heirs and assigns, to warrant and forever defend the fee-simple title to the said premises, free from the claims of all persons whatsoever; and covenanted also for a new and further deed for said premises, if it should be required to vest a fee-simple title; which paper purported to be sealed, but was signed by John M. Shively in his own name and hand, and by James Welch, by J. M. Shively, his attorney in fact, and had, instead of an impression on wax, or any adhesive substance, for a seal only devices made in ink, by the printer, of circular shape, with the letters “L. S.” in the middle; it was witnessed by three witnesses, who signed it as such, and was not acknowledged; this instrument was delivered at the date thereof to said John Wilson. 5. That the said block 11 in said deed mentioned was within the town laid out and surveyed as aforesaid by John M. Shively, prior to the eighteenth day of April, 1845, and was and is within the donation claim or tract patented to Susan M. Shively, the wife of said John M. Shively. 6. That in the year 1850, said John M. Shively being an occupant of the tract of land occupied as aforesaid, in 1845, by Shively and Welch jointly, set up a claim to said tract of land under the act of congress called the Oregon donation law, for himself and his wife Susan M., and so complied with the provisions of said act, as that in the year 1866, patent issued under said law to said John M. Shively and — 99 — Susan M. Shively to the west half, which includes said block 11, being patented to said Susan M. 7. That on the eighteenth day of February, 1860, after full compliance by said John M. and Susan M. Shively with said act of congress, the said John M. and Susan M., by deed, duly executed, witnessed, acknowledged and recorded, conveyed with covenants of warranty to said James Welch, among other real property, all of said block 11. 8. That said Welch, as early as 1847, had notice of the deed made by said Shively for himself, and as agent for said Welch to said John Wilson, of date third June, 1846, and took the deed aforesaid of February 18, 1860, from John M. and Susan M. Shively, with knowledge of the said deed for said block 11 to said Wilson. 9. That since 1855, until the commencement of this action, said block 11 has remained open, unimproved and unoccupied, with the exception of a fence put about it by one Munson about 1875, and a building put on lot 7 in said block by the defendant MpEwan; but the entry on said block 11 and fencing thereof were, after Jessie McEwan and her husband, W. G. McEwan, had entered into possession, under the deed from James Welch and wife to Jessie McEwan; and said W. G. McEwan was, at the same time, claiming to hold and occupy, and was in possession, as tenant of James Welch, of all of said block 11 except said lot 1; and the right of said Munson to fence said block or any part of it was disputed by said Jessie McEwan, under her claim as owner of said lot 1, and by said McEwan as tenant of said James Welch; and the said McEwan and Welch, before the commencement of this action, had said Munson ejected from said block. 10. That from 1850 to February 18, 1860, said block 11 was in possession of Susan M. Shively, and claimed by her by virtue of her title and proceedings had under the donation law of congress. 11. That after February 18, 1860, and until the death of James Welch, he claimed the said block and exercised acts of ownership over it by warning off trespassers going over it, and paying taxes upon it; and since the death of said — 100 — Welch, hi3 heirs anti residuary devisees have likewise exercised acts of ownership over and claimed said block. 12. That in 1856 said block was assessed to John Wilson by the assessor of Clatsop county, and in 1857 was sold for such taxes by the auditor of said county, and bid off by one Munson; but whatever interest said Munson acquired was, about the date of the commencement of this action, released to plaintiffs; but the proceedings upon said sale were irregular, and said Munson had no valid deed from the public officers by whom the alleged sale was made, and acquired no title by said sale and proceedings; and, except in the year 1856, said block does not at all appear to have been assessed to John Wilson, nor does he appear at all to have paid any taxes thereon; and neither said John Wilson nor the plaintiffs have been in actual possession of said block 11 or any part of it, except such seisin or possession as may have been acquired by deed aforesaid of June, 1846. 13. That said block 11, since 1856, has been variously assessed to Munson, to James Welch and to J. M. Shively, and several times doubly assessed, James Welch, during the greater portion of the time, having paid taxes on the same. 14. That on the nineteenth day of May, 1875, James Welch, for a valuable consideration, conveyed by deed in due form and duly executed and acknowledged, and recorded to the defendant Jessie McEwan, wife of W. G-. McEwan, lot 7 in said block 11; and James Welch having died on the -day of-, 1877, his heirs and widow, the defendants herein, duly conveyed by their deed, dated the eighth day of June, 1877, duly executed, and acknowledged all of said block 11, except lots 1 and 7, to the defendant A. J. Welch. 15. That the deed of Shively and Welch to John Wilson, of date third of June, 1846, was, upon proof thereof, duly recorded in the record of deeds of Clatsop county on the twenty-ninth day of December, 1875. The power of attorney aforesaid of James Welch to John M. Shively, of date eighteenth April, 1845, was, upon proof thereof, duly recorded in said records on the fourteenth- day of August, — 101 — 1877. The deed of John M. Shively and wife to James Welch, of date eighteenth February, 1860, was duly recorded in said records on the fifth day of March, 1860. The deed of James Welch and wife to Jessie McEwan, of date nineteenth May, 1875, was duly recorded in said records on the twenty-second day of June, 1876. The deed of the heirs and widow of James Welch to A. J. Welch was duly recorded August 16, 1877. 16. That said Jessie McEwan had no actual notice herself prior to the execution of her said deed, of the deed to or of any claim by said John Wilson to or upon said block 11 or any part of it, but the purchase was made for her and the deed obtained by her husband, W. Gf. McEwan, who was therein her agent; and the said W. G. McEwan was put upon inquiry and notified, and had reasonable cause to believe and know, that said Wilson had the deed under which he claims and did claim said block; and said A. J. Welch, before the said deed to him was executed, had beside such notice as may have been imparted by the record of the deed from Shively and Welch aforesaid to said Wilson, recorded as aforesaid December 29,1875, information concerning the said deed to said Wilson, and notice thereof sufficient to put him upon inquiry, and he had reasonable cause to believe that such deed had been made; and it does not appear from any evidence in the case, except the recital in his deed, that said A. J. Welch paid any consideration for said block. 17. That said John Wilson died February 2, 1877, leaving a will, which has been duly proven and recorded in Clatsop county aforesaid, and the plaintiff, Ann It. Wilson, is his widow, and the plaintiff, Mary E. Wakeman, is his devisee, entitled to all, the interest or estate of said John Wilson in said block 11, subject to the dower of the widow. 18. That when the deed to said John Wilson above described was made there was before the parties to said deed and the witnesses a lithographed copy of what was then and there represented by J. M. Shively as the plat of the town of Astoria, as it was laid out and surveyed by him, from which said Wilson selected said block 11, and the original — 102 — plat was not there, nor any plat that was in all respects a copy of the said original, and the only plat referred to by the plaintiffs in this case and offered in evidence is a record in Book of Deeds of Clatsop county, which record was made in the year 1854, which purports to be a true copy of the original plan of the town of Astoria, as laid out by John M. Shively, and the lithographed copy referred to in Wilson’s deed is lost, and, for that reason, cannot be exhibited. The streets around said block 11, as set forth in said deed, are not found on the original plat made by said Shively, nor in the copy found in the Book of Deeds aforesaid, and in so far as the streets named in the deed go to make up the description of the property, the said description is erroneous and impossible. (But the location and representation of block 11, in all particulars except as to streets, was and is the same on the lithograph as on the plat laid out and surveyed by John M. Shively.) 19. That said James Welch having knowledge of the. said deed to John Wilson and possession, as is above in these findings described, during his life-time invariably denied and disclaimed orally the title of said Wilson set up in thisjaction. And as conclusions of law from the facts so found the court finds: “1. That James Welch had no estate orinterestin the land in controversy until the eighteenth day of February, 1860, when the same was conveyed to him by Susan M. Shively and her husband, and on that day and by virtue of said conveyance from Susan M. Shively he (said James Welch) took and had a fee-simple estate in said land. “2. That by virtue of the deed of June 8, 1846, by Shively and Welch aforesaid to John Wilson, the title acquired by JamesWelch on said eighteenth day of February, 1860, inured to the benefit of and invested in his grantee, said John Wilson. “ 3. That as between said James Welch and his heirs and devisees, the possession of said James Welch found above, of said block 11, was not and is not adverse to John Wil — 103 — son, and liis representatives are not barred by the statute of limitations. “4. That the deed of James Welch to Jessie McEwan for lot 7 in said block, and the deed of Welch’s heirs and widow to A. J. Welch, are each, as against the plaintiffs, void and without effect. “5. That by reason of the deed by James Welch of June 3, 1846, to John Wilson, and the inuring of title to said Wilson as aforesaid, said Nancy Welch had and has no estate for life in said lot 1 in said block or in any part of said block as against the plaintiffs. “ 6. That the plaintiffs are entitled to the possession of the property described in the complaint, and the plaintiff, Ann B. Wilson, has therein an estate for life (during her own life); and the defendant, Mary Elizabeth Wakeman, has therein an estate in fee in remainder after the expenditure of said estate for life. “7. That the plaintiffs are not entitled to any damages for detention.” Many exceptions were taken by the appellants to the rulings of the court in the admission of testimony, and to the findings of law by the court, but most of them have not been argued by counsel and are therefore considered as abandoned by the appellants. At the trial respondent offered in evidence a power of attorney from James Welch to J. M. Shively, dated April 18, 1845, of which the following is a copy: “Know all men by these presents, that I, James Welch, have, and by these presents do authorize, constitute, and appoint J. M. Shively my true and lawful attorney for me, and in my name and behalf, to bargain, sell, or dispose of, in any way he may see fit, to any person or persons whatsoever, any lot or lots owned by him and me jointly in the town of Astoria; as fully and as effectually as I might or could do were I personally present, and I do hereby bind myself, my heirs, executors and administrators, to ratify the same. “Signed and sealed this the eighteenth day of April, in — 104 — the year of our Lord oue thousand eight hundred and forty-five. James Welch, [l. s.] “In the presence of N. Smith, Witness.” On the twenty-fourth day of April, 1877, before Hon. B. P. Boise, a judge of the circuit court of the state of Oregon, the signature of Noyes Smith, the subscribing witness to the above power of attorney, was duly proven by two witnesses, who also proved that said witness wras dead. And on the fourteenth day of August, 1877, before Hon. E. D. Shattuek, one of the judges of the circuit court of the state of Oregon, the signature of James Welch to the said power of attorney was duly proven by two witnesses, who also proved that said James Welch was dead. Objection was made by appellants to the admission of this power of attorney for the following reasons: 1. That it was not under seal; 2. It was not properly acknowledged or proved; 3. It did not authorize the attorney to convey block 11. It did not authorize him to convey with covenants of warranty. The provisional government of Oregon on the twenty-seventh day of June, 1844, adopted the statute laws of Iowa Territory passed at the first session of its legislative assembly (except those of a local character) as the laws of the provisional government; and the validity of these laws was afterwards recognized by congress in the fourteenth section of the act of August 14, 1848, establishing the territorial government of Oregon. One of the Iowa statutes so adopted and in force when this power of attorney was executed is as follows: “That any instrument, to which the person making the same shall affix any device or scrawl, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed.” The power of attorney was proved according to the provisions of section 18, page 517 of the general laws of Oregon. We think the instrument was sealed and proved according to law. J. M. Shively and James Welch in 1845 were jointly occupying and claiming a tract of land which, prior to April 18 of that year, had been partially laid out into lots and — 105 — blocks, streets and alleys, and called Shively’s Astoria; and the power of attorney authorized Shively to sell any lots so jointly owned by them. Of course it was well known to every one that the United States owned this land, and the power of attorney must be construed as the parties themselves understood it at the time; that is, that Welch authorized Shively to sell or dispose of any possessory interest which they jointly had in the town lots. But it is objected that the power of attorney did not authorize Shively to execute a deed with covenants of warranty. Welch empowered him to bargain and sell, or dispose of in any manner he might see fit, any lot as fully and effectually as he could do if personally present. The power is certainly comprehensive in its terms, and we think fully authorized Shively to make the deed in question with its covenants of warranty. (Rawle on Covenants for Title, 570; Le Roy v. Beard, 8 How. 451; Bronson v. Coffin, 118 Mass. 156; Coleman v. Stark, 1 Or. 115.) The respondents offered in evidence a deed, of which the following is a copy: “This indenture, made and executed this third day of June, 1846, between John M. Shively and James Welch, by John M. Shively, his attorney in fact, of the town of Astoria, in the territory of Oregon, of the first part, and General John Wilson, of the town of Eayette, Howard county, and State of Missouri, of the second part, witnesseth: That for and in consideration of five hundred dollars in hand, paid by the party of the second part, the receipt whereof is hereby acknowledged, the parties of the first part have this day granted, bargained and sold, and by these presents do convey to the said party of the second part, the following described tracts or parcels of land in the town of Astoria, in the said territory of Oregon, being part of the settlement right of the said John M. Shively on which he has laid out and surveyed the said town of Astoria, viz.: Lots Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, foi-ming block No. 11, which block is bounded north by Water street, east by Spruce street, south by West First street and west by Pine street, which lots are each fifty feet front and one hundred and forty-two and one half feet back; — 106 — bounded on an alley’ of fifteen feet wide, which runs through the centre of the said block nearly east and west, which will more fully appear by reference to the plat of said town of Astoria so laid out, as aforesaid, which said plat has been lithographed by E. & J. Hutaway, of St. Louis, Missouri, to which reference is here made; and the said parties of the first part covenant to have the same plat properly recorded as soon as there shall be an office provided by law for that purpose. “ To have and to hold to the said party of the second part, his heirs, executors and assigns, in fee-simple title forever, with all its appurtenances. “And the said parties of the first part hereby covenant and agree to, and, with the party of the second part, his heirs, executors and assigns, to warrant and forever defend the fee-simple title to above-described premises free from the claims of all persons whatsoever; and the parties of the first part also agree for themselves, their heirs and executors, that they will, at the expense of the party of the second part, his heirs or assigns, make a new and further deed, if the same shall be required, to vest as aforesaid a fee-simple title whenever they or either of them shall demand the same; and the said parties of the first part covenants that the said above-described and conveyed land is free from incumbrances. “ Given under our hands and seals the day and year first above written. “ J. M. Shively, [l. s.] “ James Welch. [l. s.] “By his attorney in fact, J. M. Shively. “Signed, sealed and delivered in the presence of, the words ‘ themselves their’ interlined before signed. “Elijah White, “C. E. Galpin, “George Smizer.” The objection that this deed was not sealed is untenable. Under the Iowa statute adopted by the provisional government, already referred to, we think the grantor in a deed — 107 — could either make or adopt a scroll or device as his seal. The deed was duly proved in San Francisco by Elijah White, a subscribing witness, on the twenty-eighth day of March, 1876, before J. H. Blood, a commissioner of deeds for this state, in conformity with section 17 of the general laws of Oregon. Another objection made is, that the instrument was no deed because it was not acknowledged or proved in accordance with subdivision 4 of section 6 of the Iowa statute of February 16, 1843. It is sufficient to say that this statute was not in force in Oregon until it was adopted by the legislative assembly of Oregon territory on the twenty-ninth day of September, 1849. (General and Special Laws of Oregon, p. 108.) We think the deed was sufficient to convey, and did convey, to John Wilson all the interest of John M. Shively and James Welch in and to block 11 in Shively’s Astoria, with full covenants of warranty as to title. The only remaining question to be considered is that of adverse possession for twenty years by appellants and their grantors. The court found as matters of fact that Shively’s Astoria was laid off into lots and blocks, streets and alleys; that James Welch claimed to own block 11 since February 18,1860, and exercised acts of ownership over it by warning off trespassers and paying taxes, but the block remained open, unimproved and unoccupied until some time in 1875. We think the court did not err in deciding that these acts did not constitute an adverse possession on the part of Welch. It appears, by the bill of exceptions, that his residence was on block 17, several blocks reproved from the one in controversy, and separated from it by several intervening streets and by lots and blocks owned by other persons. Blocks 11 and 17 were separate parcels or tracts of land having no connection to each other, and the adverse notorious possession of block 17 by Welch had no relation whatever to or connection with block 11. To constitute an adverse possession, there must be an actual possession of the premises; the exercise of some visible notorious act, such as inclosing, cultivating or otherwise improving the land. No such occupancy of this was had. No such acts as these were performed on block 11 by — 108 — James Welch during his life-time, and we hold that there was no adverse possession for twenty years by the appellants or their grantors. The appellants are moreover estopped by the covenants of warranty in the deed of James Welch and John M. Shively to John Wilson, from asserting any title in themselves. That point was expressly decided by this court in the case of Taggert v. Risley (4 Or. 235). The judgment of the court below is affirmed with costs.