Baker v. Woodward

• Citation: 6 P. 173,12 Or. 3
• Parties: BAKER v. WOODWARD.
• Decision Date: 22 December 1884
• Court: Supreme Court of Oregon

6 P. 173

12 Or. 3

BAKER v. WOODWARD.

Supreme Court of Oregon

December 22, 1884

Appeal from Multnomah county.

Sidney Dell, for appellant.

P.L Willis and J.C. Moreland, for respondent.

THAYER, J.

This appeal is from a decree of the circuit court for the county of Multnomah, and involves the right to and ownership of lot 4, in block 108, city of Portland. The facts in the case show that Stephen Coffin, Daniel H. Lownsdale, and W.W. Chapman were, on the twenty-fifth day of June, 1850, joint occupants of the town-site of said city, claiming to be the proprietors thereof, the title to which was in the government of the United States; that at said date the said proprietors united in a deed, by the terms of which the three, in consideration of the sum of $6,000, released, confirmed, and quit-claimed to one of their number, Lownsdale, and to his heirs and assigns, forever, a number of lots and blocks in said town including said block No. 108; that said deed was executed under the hands and seals of the said parties; that it was not witnessed or properly acknowledged. The certificate of acknowledgment was signed by a notary public with a seal attached, and was in due form, except that he did not certify that he knew said parties to be the persons described in and who executed the said deed. The deed contained the usual habendum clause; a covenant to warrant and defend the title against the claim of all persons, the United States excepted; and a further provision that if the grantors obtained title from the United States they would convey the same to the grantee by deed of general warranty.

The said deed appears to have been recorded in the office of the then auditor and recorder of Washington county, August 5 1854, which county at that time included the present territory of the city of Portland. That on the eleventh day of February, 1854, said Lownsdale executed under his hand and seal, and duly acknowledged, a deed, by the terms of which he, in consideration of the sum of $265, granted, bargained, and sold said lot 4 to Alexander Campbell, with a covenant similar to that contained in the deed to himself, as to further assurance in case he obtained a patent for said land from the United States. Said deed was properly witnessed and recorded August 5, 1854, in the office of said auditor and recorder. That the respondent, by mesne conveyances, afterwards succeeded to the rights of the said Campbell to said lot, the last of which conveyances bears date June 20, 1883. That said Stephen Coffin obtained a patent from the United States, March 2, 1861, to a certain tract of land, including the lot and block in question. That on the twentieth day of August, 1870, said Coffin executed a deed to Charles M. Carter, by the terms of which he, in consideration of the sum of $7,000, bargained, sold, granted, and conveyed to the said Carter, and to his heirs and assigns, all his right, title, and interest in a tract of land consisting of 323 and a fraction acres, and which included said lot and block, and a large number of other lots and blocks in said city of Portland. That said deed was duly witnessed and acknowledged, and was afterwards, and on the thirtieth day of September, 1870, recorded in the office of the clerk of the county of Multnomah. That on the third day of April, 1876, Ira F. Powers obtained a judgment in the county court for said county of Multnomah against the said Charles M. Carter, which, having been docketed, an execution was subsequently issued thereon, and levied upon said lot 4, and under and by virtue of the said execution said lot was sold to Sidney Dell, and a sheriff's deed executed to him in pursuance thereof, on the eighth day of April, 1882. That on the seventeenth day of June, 1882, said Dell executed a deed to the same to the appellant, for an acknowledged consideration, appearing from a recital in said deed to have been $2,000. That on the twenty-first day of February, 1881, J.H. Lappens, chief of police of the city of Portland, as such chief of police of said city, executed a deed to said lot to the city of Portland. Said deed was duly witnessed, acknowledged, and on the eighth day of March, 1881, duly recorded in the office of the clerk of said county of Multnomah. It was recited in said last-mentioned deed that by virtue of a warrant duly issued by the auditor and clerk of the city of Portland, dated on the fifth day of January, 1881, commanding the said chief of police to levy upon lot No. 4, in block No. 108, situate, lying, and being in the city of Portland, county of Multnomah, state of Oregon, and to collect an assessment due thereon of $802.42, for the improvement of Harrison street, in said city, being the amount assessed against said lot for said improvement of Harrison street, between Water and Front streets, in said city, the same being the amount assessed against said lot for said improvements, and remaining unpaid; that the said chief of police duly levied upon the said lot No. 4, in block No. 108, and at a public sale of said land, held at the court-house door in the city of Portland, county of Multnomah, and state of Oregon, on the twenty-first day of February, 1881, in accordance with an advertisement for the sale of said land for unpaid street assessments due thereon, said chief of police on that day sold to the city of Portland, and to its assigns, all of said lot, for the sum of $863.44, said city of Portland being the highest bidder and that being the best bid thereon; and that said city had that day paid to the said chief of police said sum of $863.44 for said lot.

It further appears from said facts that on the twenty-sixth day of November, 1881, said city of Portland, in accordance with an ordinance enacted by its common council, executed a deed to said lot 4 to the respondent. It is to be inferred from the evidence that at the time Coffin executed the deed of August 20, 1870, to Carter, Coffin had sold off in lots and blocks a great portion of the tract of land so patented to him. The evidence shows that streets had been laid out and opened across it, and that it had been extensively built upon, and was then occupied by persons claiming to own distinct parcels thereof. Carter himself testifies in his deposition, taken under a commission which issued out of said circuit court, that a part was improved and a part not; and when interrogated as to whether Harrison-street school building, Smith Bros.' foundry, Smith Bros. & Co.'s saw-mill, John Honeyman & Co.'s foundry, No. 1 stables, St. Mary's academy, water company's reservoir, No. 5 engine-house, the Portland mechanics' fair building, were not upon the lands described in that deed, answered, in substance, that they were there, excepting the Harrison-street school building and the mechanics' fair building; and he further stated that the sale, referring to the said deed of August 20th, included in the Coffin tract whatever lots and blocks Coffin owned in that tract at that time. He also stated that the consideration mentioned in said deed from Coffin to him was on account of liabilities of Coffin which he assumed, amounting to about the sum mentioned as the consideration in said deed, and that he (Carter) received in payment thereof the said deed, and railroad lands in the counties of Washington and Yamhill, and a farm on Sauvie's island. In answer to another interrogatory annexed to said commission, as to whether he purchased said real estate, including said lot, in good faith, he replied that he did; that he purchased it, as he did the other property, in good faith; that he had no actual knowledge of Lownsdale's claim to parts of the Coffin tract until after his purchase; that he was aware of a rumor that Lownsdale laid claim to certain lots and blocks, but nothing definite.

It also appears in evidence that Carter had been the owner of considerable real property in the city of Portland, and had dealt quite extensively in real estate in said city. No deed appears to ever have been made by Coffin to Lownsdale, in accordance with the covenant in said deed of June 25, 1850, that in case title was obtained from the United States, etc., he would convey by deed of general warranty, etc., though said Coffin did, on the twenty-fourth day of January, 1882, execute a deed to the respondent, by the terms of which he, in consideration of $10, released and quitclaimed to respondent the said lot 4; that said deed was duly acknowledged, and on the thirty-first day of January, 1882, recorded in the office of the clerk of the county of Multnomah. It also appears in evidence that said lot 4 remained vacant and unoccupied until December, 1882, when the respondent went into actual possession thereof, and is still in possession of the same. It appears from the pleadings that some time in 1882 the appellant commenced in the said circuit court an action at law against the respondent to recover the possession of said lot, claiming to be the owner thereof in fee. The suit herein was commenced by the respondent against the appellant to restrain his said proceedings at law, claiming that he was the equitable owner of said lot as against the appellant, and every one through whom he derived his legal title.

The main points presented by the case are: (1) The nature and effect of the deed of June 25, 1850, from Coffin, Lownsdale and Chapman to Lownsdale; (2) of the deed of August 20, 1870, from Coffin to Carter; (3) the effect of the judgment in favor of Powers and against Carter; (4) the rights of the appellant acquired from Dell; and (5) the effect of the amendment of section 378, Civil Code, approved October 22, 1870, which provides that suits to set aside, cancel, annul, or otherwise affect a patent to lands issued by the United States, etc., shall be...