Robertson v. Martin

BEAN, J. Upon the trial, it was shown that the appellants and the Smiths at the time of the execution of the note and mortgage were residents of San Diego, California; that the Martins owned the residence property and household furniture which they advertised for sale. The advertisement was answered by a letter from E. C. Smith, the agent of Marilla S. Smith, wherein it was stated: “I have a very choice little farm of 25 acres of river bottom land on the Willamette Biver. * * 20 acres are in a high state of cultivation, producing immense crops * * the other five is timber'which is valuable.” Pursuant to this letter, the parties met in San Diego and Smith produced a sketch or map of the land marked “all choice land, 20 acres; timber, five acres.” During the trade Mr. Smith said, “to be exact there are 24.75 acres” in the tract. The parties made an exchange of their respective properties, and the Martin’s executed a mortgage in favor of Mrs. Smith for the sum of $2,000. Appellants procured a survey of the land in March after they had established their residence thereon in the preceding September, according to such survey and measurement made by the defendant Martin, with the assistance of a neighbor they computed the number of acres in the entire tract to be 20.55 acres or 4.20 acres short. They also claimed that there were but 13,52 acres of land in cultivation. The trial court found that there was no competent [331] evidence showing that there was a shortage in the acreage, and that the evidence did not establish that there were false or fraudulent representations as to acreage made by E. C. Smith, but that all the statements made by the said E. C. Smith were in good faith according to the information which he had concerning the same based upon the abstract of title showing the government survey of the land, and upon the information given to him by the grantors who sold said tract of land to Mrs. Smith; that the value of the land is $350 per acre. The allegations of fraudulent representation made by E. C. Smith, the husband and agent of defendants’ grantor, in the exchange of the real properties are not sustained by the evidence. The area of the land traded to defendant, the, Martins, by the Smiths consisted of 24.75 acres according to the government survey, “be the same more or less,” thereof, and plats. It was so represented in the deed of conveyance from the Smiths to the Martins. Also in several conveyances shown in the abstract of title furnished by the Smiths to the Martins at the time of the exchange. There is no competent evidence that the government survey was incorrect. The deputy county surveyor surveyed the 31.64 acre tract. He did not furnish any field-notes of his survey nor state in what manner the survey was made. His conclusion was based upon the assumption ithat the 6.89 acre tract, which had been sold off from the larger lot, was correct. He figured the number of acres sold to defendant from a measurement made by defendant Martin and another, neither of whom were surveyors, and made the number of acres of the cultivated land 13.11 acres instead of 20 acres as defendants claim Smith represented. In doing this the deputy surveyor assumed that the lay [332] men who made the measurements had made a correct plat of the tract with the proper angles. 1. The testimony is not convincing or sufficient to overcome the government survey and field-notes. The burden of proof is upon the appellants. United States government surveys are presumed to be correct. Before courts will correct such surveys’ that have been acted upon and upheld by the United States Land Department, and overthrow the credit due them as established by the field-notes, a mistake therein must be shown by clear and cogent testimony: Blair et al. v. Brown, 17 Wash. 570 (50 Pac. 483); Whitaker v. McBride, 197 U. S. 510 (25 Sup. Ct. Rep. 530, 49 L. Ed. 857); Kneeland v. Korter, 40 Wash. 359 (82 Pac. 608, 1 L. R. A. (N. S.) 745). 2: Before making the exchange, the defendant Martin wrote to a banker at Eugene in regard to the value of the Oregon property and wa,s urged by Smith to come to Oregon, and make an investigation himself. After the respective conveyances were made, the appellants came to Lane County, examined and moved on to the land, and wrote Smith that they were satisfied with the farm. The trade of the Oregon farm to defendant Martin was made in gross and not by the acre: Ogilvie v. Stackland, 92 Or. 352 (179 Pac. 669). 3. After a careful reading of the testimony in the case, we approve the finding of the trial court to the effect that the complaint of fraud had not been sustained by the evidence. The decree of the lower court is therefore affirmed. Affirmed. McBride, C. J., and Johns and Bennett, JJ., concur.