Pubols v. Jacobsen

BENSON, J. The trial court made findings of fact substantially in accord with the allegations of the complaint. We have read the evidence with great care and are satisfied that these findings are fully justified. 1. From the testimony it appears that for at least twenty years the plaintiff and his predecessors have occupied his farm, claiming to oym the land up to the fence on the westerly side, and the defendant Jacob-sen had always acquiesced in this line, never suspecting that he had any claim to a portion of the land on the easterly side of the fence until he had the survey made in 1913. The fence had been originally constructed of logs and brush, subsequently replaced" partly by fail fence, partly by wire fence, and a portion of it still consists of brush and logs. It has at times become dilapidated, so that cattle could get [260] through, but has at all times continued to be the recognized boundary line of the two farms. This condition is sufficient, if continued for ten years, to establish a fee-simple title in the plaintiff: Ramsey v. Ogden, 23 Or. 347 (31 Pac. 778). The evidence discloses that such condition had existed for more than the prescribed time at the date when Mrs. Christensen and her husband conveyed the land to plaintiff. She then had a perfect title to all of the land within her inclosure, and undertook to convey it all to Pubols, for the sum of $14,000. By an oversight of the scrivener, the description did not correctly describe the land which was intended to be conveyed — an error which was not and could not be discovered except by the actual survey made by the county surveyor. Jacobsen then procured a quitclaim deed to be executed by Mrs. Christensen and her husband, covering the 8.64 acres of land which he sought to acquire by establishing the true boundary. He concealed from her the fact that a survey had been made which changed the boundary line, and she was misled thereby into giving him a quitclaim deed to land which she had already sold to Pubols. .Defendant Jacobsen urges that the line was established in 1913, in accordance with the provisions of' Section 2991, L. O. L., and is therefore finally established in his favor. We think the evidence establishes that no proceedings were taken under that section of the Code, but, on the contrary, they sought the surveyor for the sole purpose of straightening the line where the fence was already established, in order to construct a new fence, and that when the county surveyor undertook to do something else, the plaintiff promptly repudiated the proceeding and withdrew. [261] 2-4. It is also contended that plaintiff has not made a case entitling him to equitable relief, since his title rests entirely upon adverse possession, which is a complete defense to the action in ejectment. The case of South Portland Land Co. v. Munger, 36 Or. 457 (54 Pac. 815, 60 Pac. 5), is opposed to this view, and is decisive of the question. Plaintiff had purchased all of the land within the inclosure, and the Christensens had sold it to him, and thought that they had conveyed it to him, but by a mutual mistake, a small portion of the land had been omitted from the deed. It may be true that the title of the Christensens to this small piece was acquired by adverse possession, but it was nevertheless a perfect title and one which they had a right to convey, and plaintiff is entitled to have his paper title corrected accordingly. It is equally true that the quitclaim deed given by the Christensens to Jacobsen is a cloud upon his title, even though it is void: Mount v. McAulay, 47 Or. 444 (83 Pac. 529). It follows that the relief which a court of equity can give him is much more efficient than could be had in an action at law, and he has properly appealed to the equity side of the court: South Portland Land Co. v. Munger, 36 Or. 457 (54 Pac. 815, 60 Pac. 5); Fellman v. Tidewater Mill Co., 78 Or. 1, 4 (152 Pac. 268); Campbell’s Gas Burner Co. v. Hammer, 78 Or. 612 (153 Pac. 475). We conclude that the decree of the lower court is correct and should be affirmed, and it is so ordered. Aeeirmed. Bean, J., and Burnett and Harris, JJ., concur.