Coulter v. Portland Trust Co.

• Decision Date: 14 April 1891
• Citation: 20 Or. 469,26 P. 565
• Parties: COULTER v. PORTLAND TRUST CO. SAME v. RASH. SAME v. WARNER.
• Court: Oregon Supreme Court

26 P. 565

20 Or. 469

COULTER v. PORTLAND TRUST CO. SAME v. RASH. SAME v. WARNER.

Supreme Court of Oregon

April 14, 1891

Appeals from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

This is an action of ejectment brought to recover certain real property in the city of East Portland. The complaint is in the usual form, and contains all the allegations required by the statute. The answer traverses plaintiff's allegations, and then alleges title in the defendant. Upon the trial in the court below the plaintiff introduced the record evidence of his title by mesne conveyances from Elijah B. Davidson and wife, the original donees of the United States, and rested. The last conveyance in his chain of title was a deed of bargain and sale, with covenants of general warranty, from Howard H. Palmer, dated March 24, 1890. The defendant, also claiming title through Howard H. Palmer offered in evidence a power of attorney from him to his wife R.A. Palmer, as follows: "Know all men by these presents, that I, Howard H. Palmer, of Murray, Idaho, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, R.A. Palmer, in the county of Multnomah, Oregon, my true and lawful attorney for me, in my name, place, and stead, to transact any business whatever in a lawful manner, in connection with or necessary to the buying, selling, transferring, or mortgaging real estate, in said county and state, including the signing of all necessary papers, in order to transact any such business relating to real-estate transactions, also including the sealing and acknowledging the execution of said papers, and the delivery of the same. Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation; hereby ratifying and confirming all that my said attorney or her substitute shall lawfully do, or cause to be done, by virtue thereof. In witness whereof I hereunto set my hand and seal this seventeenth day of March, A.D.1887. HOWARD H. PALMER. [ [Seal.] __________. [Seal.] __________. [Seal.] __________. [Seal.] Executed in the presence of W.G. JENNE. J.V. ALLEN,"--which instrument was acknowledged before W.G. Jenne, notary public for Oregon, March 22, 1887, and recorded at 4:50 P.M November 23, 1888, on page 443 of Book 108, Deed Records of Multnomah county. Defendant next offered in evidence the following instrument, as executed under the authority conferred by said power of attorney: "Know all men by these presents, that we, Howard H. Palmer and R.A. Palmer his wife, in consideration of one dollar to us paid by W.G Jenne, and for the further consideration that the said W.G. Jenne hereby assumes the responsibility of providing a suitable and comfortable home for and of properly clothing Nellie Palmer, the daughter of the said Howard H. Palmer and R.A. Palmer, until the said Nellie Palmer (now nearly three years of age) shall reach the age of 18 years, do hereby grant, bargain, sell, and convey to said W.G. Jenne, his heirs and assigns, forever, the following described parcel of real estate, to-wit: [[description of premises in dispute;] containing eleven and one half (11 1/2) acres, exclusive of a road to run across said tract north and south, and to be thirty (30) feet wide. Together with the tenements, *** and also all our estate *** therein or thereto, including dower and the right of dower; to have and to hold the same to the said W.G. Jenne, his heirs and assigns, forever. And we, Howard H. Palmer and R.A. Palmer, do covenant with the said W.G. Jenne and his legal representatives, forever, that the said real estate is free from all incumbrances, save and except one mortgage for six hundred ($600) dollars, and interest thereon, in favor of the Solicitor's Company, and recorded in the records of said county and state; and that we will, and our heirs, executors, and administrators shall, warrant and defend the same to the said W.G. Jenne, his heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever, except as above specified. In witness whereof we have hereunto set our hands and seals this 22d day of November, A.D1888. HOWARD H. PALMER. [ Seal.] By R.A. PALMER, his Attorney in Fact. R.A. PALMER. [ Seal.] Signed, sealed, and delivered in presence of W.H. NORMAN, JC. MCGREN,"--which instrument was acknowledged by R.A. Palmer, both as wife and attorney in fact of Howard H. Palmer, November 22, 1888, and recorded next day at 4:50 o'clock P.M., Book 110 of Deeds, on page 44. Plaintiff objected to the admission of the deed in evidence, as unauthorized by said power of attorney and void on its face. It was conceded at the trial that defendant had succeeded to whatever title passed to W.G. Jenne by this deed, and it offered no other documentary evidence. But the defendant offered oral testimony to prove certain alleged facts, which it claimed would affect the operation of this power of attorney and deed in respect of their passing the title in said premises from Palmer to Jenne. The plaintiff objected to such testimony as incompetent and irrelevant, and excepted to its admission by the court. He also excepted to the findings of fact based thereon as unsupported by any competent or sufficient evidence, and as themselves incompetent and irrelevant.

The findings of the court are as follows: "(1) That the first of said actions is brought to recover possession of the following described tract of land: [[Here follows a description of the property, as set forth in the complaint.] (2) That the parties to said action, plaintiff and defendant both claim title to the premises in each action involved, by deed from Howard H. Palmer, a former owner thereof. (3) That all said lands were portions of a larger tract, prior to the 29th day of January, 1887, owned by one Susan E. Jenne, who on said day conveyed all said larger tract of land to one William G. Jenne, her son, for the purpose of having the same divided among her children, of whom Rhoda A. Palmer, the wife of said Howard H. Palmer, was one; that, at the time of the execution of said conveyance by said Susan E. Jenne, she gave verbal direction to the said William G. Jenne in regard to the apportionment of her said lands among her children, and verbally stated to him that her daughter, Rhoda A. Palmer, should have no portion of said land, but that he should convey to said Howard H. Palmer the share to which his wife, as the child of the said Susan E. Jenne, would otherwise be entitled; that, in pursuance of said direction, the said William G. Jenne conveyed to the said Howard H. Palmer in fee all the lands in said actions involved; and that said Howard H. Palmer paid no consideration therefor. This last-mentioned conveyance is the source of title to said lands derived by the said Howard H. Palmer. (4) That thereafter the said Howard H. Palmer executed to his wife, the said Rhoda A. Palmer, a power of attorney bearing date March 17, 1887, and acknowledged March 22, 1887, wherein and whereby he empowered the said Rhoda A. Palmer, in his name, place, and stead, to 'transact any business whatever in a lawful manner in connection with or necessary to the buying, selling, transferring, or mortgaging real estate,' in Multnomah county, state of Oregon, 'including the signing of all necessary papers in order to transact any such business relating to real-estate transactions, also including the sealing and acknowledging the execution of said papers, and the delivery of the same;' that said instrument was witnessed and acknowledged so as to entitle it to be recorded, and was on November 23, 1888, duly recorded in the office of the recorder of conveyances for said Multnomah county. (5) That at some time prior to the 22d day of November, 1888, the said Howard H. Palmer and Rhoda A. Palmer had executed to the Solicitor's Company a mortgage upon the land conveyed to the said Howard H. Palmer by the said William G. Jenne, to secure a loan of $600 made by said company, which money was sent to the said Rhoda A. Palmer, in Idaho, by W.G. Jenne. (6) That on said 22d day of November said Rhoda A. Palmer, assuming to act as attorney in fact for said Howard H. Palmer, under said power of attorney, on his behalf and on her own behalf, executed to the said William G. Jenne a deed purporting to convey in fee-simple all the lands involved in these three actions, exclusive of a road across said tract north and south, to be thirty feet wide, upon an expressed consideration of one dollar, 'and for the further consideration that the said W.G. Jenne hereby assumes the responsibility of providing a suitable and comfortable home for, and of properly clothing, Nellie Palmer, the daughter of the said Howard H. Palmer and R.A. Palmer, until the said Nellie Palmer (now nearly three years of age) shall reach the age of eighteen years;' said conveyance shall also contain a covenant of general warranty of the title to said premises, and also a covenant that 'said real estate is free from all incumbrances, save and except one mortgage for six hundred ($600) dollars, and interest thereon, in favor of the Solicitor's Company;' that said conveyance was duly witnessed and acknowledged, so as to entitle it to be recorded, and it was on the 23d day of November, 1888, duly recorded in the office of the recorder of conveyances of said Multnomah county. (7) That on the 4th day of February, 1889, said W.G. Jenne, with his wife, executed a deed, purporting to convey in fee-simple the tract of land involved in the first of the actions above set forth to the...