Schmidtke v. Keller

Mr. Justice Wolverton delivered the opinion. 1. This case seems to have been instituted as an action at law to recover the purchase price named in a mutual agreement entered into between the parties, whereby the plaintiffs, for the consideration of $167.50, to be paid by the defendant on or before the 6th day of February, 1902, agreed to convey to him at the same time a piece of real property containing four and one-half acres, definitely de-^ scribed in said agreement. Plaintiffs allege a tender of the [26] deed, its refusal and deposit in the court below for defendant, and demand judgment for the amount of such consideration. A jury was waived, and a trial had before the court, findings of facts and law made, judgment rendered, and a bill of exceptions allowed and settled as in an action. Plaintiffs having been successful, the defendant appeals; and, having obtained a rule on the clerk of the circuit court, and procured the certification of the entire evidence to this, court, he now contends, as his major premise, that the proceeding is in equity to compel the specific performance of the contract set up in the complaint, and is not an action at law. As we have concluded that the result of the adjudication by the trial court must be affirmed in either event, we will take the premise for granted, but without deciding the point, and discuss the matter as if in a forum of equity. But two questions are presented: (1) Whether the plaintiffs are the owners of the tract in question, so as to be able to convey the same to the defendant by good and sufficient deed; and (2) whether the deed so tendered is sufficient to convey the premises. ■ 2. 'The first depends upon whether under the proofs the tract lies within the boundaries of the William G. and Sally C. Poppleton donation land claim, situate in township 3 north, range 2 west; and this depends, again, upon the location of the true south boundary line thereof. The claim is described as beginning at the northeast corner of said section 16, and running thence east 50 chains and 55 links; thence south 33 chains; thence west 20 chains, 10 links; thence north 3 chains; thence west 84 chains and 50 links; thence north 30 chains; and thence east 53 chains and 84 links, to the place of beginning—containing 319.53 acres. Mr. Thomas S. Wilkes, who is conceded to be a competent surveyor, was called as a witness in the case with reference to such south boundary. He made two surveys, whereby he located a portion of the line sufficient to [27] determine, whether the tract in controversy lies within the claim. He testifies, in substance, that he began at the northwest corner of the claim, and ran south for the purpose of locating the southwest corner, but could not find it at thirty chains, as denoted by the call. Continuing south, however, three chains and sixty-five links further, he found bearing trees from which he located the true southwest corner, the bearing trees consisting of a dead cedar fifty inches in diameter, containing illegible fragments of the government marks thereon, they having been burned over, and another cedar, thirty inches in diameter, with burned-out marks, not decipherable; that he ran east from there on a random line, preliminary to a location of the south boundary, and at thirty-nine chains and sixty links from the section line between sections 15 and 16 he found bearing trees, and located the true corner at that point, where he found an ash hearing tree and the stump of another ash, and, as his recollection serves him, a part of an old stake. From this and a prior survey he made a plat of the claim, which was offered in evidence, and is here in the record, showing the true south boundary and the location of the tract in question, which appears therefrom to lie to the north of said south boundary, and wholly within the Poppleton claim. There is no evidence to dispute or contradict this in any way, while the testimony of John Schmidtke affords material corroboration. From this record.it is reasonably certain that Wilkes found the original monuments as Ideated upon the ground by the government surveyors, and made his location of the south boundary line accordingly. He also testifies that in running the line he followed blazes found on the trees along the way, which is some indication as to where the line was actually marked upon the ground. The location of the monuments marking the original government survey having been ascertained, the courses and distances as desig [28] nated by the field notes, must yield to them : Van Dusen v. Shively, 22 Or. 64 (29 Pac. 76); Kanne v. Otty, 25 Or. 531, 537 (36 Pac. 537). And this rule having been applied by Wilkes in locating said south boundary, we must conclude that plaintiffs are invested with the title of the tract in dispute, and consequently are able to give a good and sufficient conveyance therefor. 3. As to the second question, the third and fourth calls in the deed tendered and now in court are as follows: “ Thence north 10 rods to the northeast corner of Schmidtke’s said land; thence west 67 rods, more or less, to the place of beginning.” It was evidently intended that the third call should run north ten rods to the southeast corner, instead of the northeast corner, of Schmidtke’s said land, the latter point being thirty chains still further north; but, when the last or fourth course or call is carried to the place of beginning, the boundaries close, so that the tract in question is included, at any rate, within the boundaries contained in the deed, thus affording a good conveyance of the title, notwithstanding they circumscribe too much area. 4. When the deed was tendered, the defendant based his sole objection thereto upon the want of title in the plaintiffs, and it was not until the case was brought on for trial that he made the specific objection to the incorrectness of the description; and, in view of the fact that he is getting, at any rate, a conveyance of the premises involved, he should not now be permitted, in a court of equity, to urge such incorrectness of description to defeat plaintiffs’ cause. And even if we were looking into the case from the standpoint of a court of law, the findings of the trial court would be equally as effectual to conclude him upon the subject. Affirmed.