McKinney v. Hindman

• Decision Date: 11 December 1917
• Citation: 169 P. 93,86 Or. 545
• Parties: MCKINNEY v. HINDMAN ET AL.
• Court: Oregon Supreme Court

169 P. 93

86 Or. 545

MCKINNEY v. HINDMAN ET AL.

Supreme Court of Oregon

December 11, 1917

In Banc.

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Suit to quiet title by J. O. McKinney against Charles J. Hindman and another. Decree for plaintiff, and defendants appeal. Reversed, and decree entered quieting title in the defendant Charles J. Hindman.

This is a suit to quiet title to the N.W. 1/4 of the S.W. 1/4 of section 3, township 15 S., range 10 E., Willamette Meridian in Crook county, of which the plaintiff alleges himself to be the owner and in possession. The complaint is traversed by the answer of Charles J. Hindman and Martha Hindman, his wife. For an affirmative defense they allege the following:

"That the defendant Charles J. Hindman is the owner in fee simple to the premises described in plaintiff's complaint that he and his predecessors in interest herein during the period of more than 30 years last past, and openly notoriously, peaceably, adversely, uninterruptedly exclusively, and continuously, under a claim of right thereto, and under a deed from the state of Oregon, with notice and knowledge to all, and everybody, and adversely to all the world, have been in possession of the said premises; that this defendant, Charles J. Hindman, has, in good faith, improved the said premises by fencing clearing, and cultivating said premises; that he has secured a valuable water right sufficient to irrigate 23 1/2 acres of said premises, which water right as confirmed by the board of control dates from 1871."

This quoted new matter of the answer is denied by the reply, which further avers:

"That the defendants ought not to be permitted to deny the title of the plaintiff to the real property described in plaintiff's complaint herein, nor ought the defendants to be permitted to assert any right, title, or interest to said premises in themselves to said premises, nor ought the defendants to be permitted to assert or claim title to said premises by adverse possession; for the reasons that the defendants have admitted to plaintiff since he came into the possession of said premises and prior thereto that they, the defendants, had no title or claim to said premises, and that the plaintiff and his predecessors in title and interest were the owners thereof, and the defendants have asserted no title to said premises and recognized the plaintiff as the true owner thereof, and by their acts have led this plaintiff to believe that they had no right, interest, or title to said premises and intended to claim none thereto, in reliance upon which acts and representations of said defendants, and with the knowledge of said defendants, this plaintiff procured title to said premises from the true owners for a valuable consideration and at an expenditure of a large sum of money, and has placed valuable improvements thereon, and acquired title to 80 acres of lands adjoining said premises, the value of which depends upon plaintiff's title to the premises mentioned herein, and plaintiff has sowed valuable crops thereon and otherwise altered his position in reliance upon the representations and acts of said defendants, and he would be irreparably and irrevocably injured and damaged should he be deprived of the premises described in the complaint herein."

The testimony was taken before a referee, upon consideration of which the circuit court made findings of fact, reached a conclusion of law that the defendants were estopped from asserting any title in the realty mentioned, and entered a decree in favor of the plaintiff quieting his title. The answering defendants appeal.

Lake M. Bechtell, of Prineville, for appellants. W. B. Daggett, of Redmond, for respondent.

BURNETT, J. (after stating the facts as above).

The parties agreed before the referee that the plaintiff's paper title was deraigned from a United States patent covering the land in dispute issued to the Willamette Valley & Cascade Mountain Wagon Road Company under date of February 10, 1894, and recorded in the county records November 26, 1895, his immediate grantor being the Oregon & Western Colonization Company by deed of July 28, 1915, recorded August 9th of that year. It was also stipulated that the defendant Samuel M. W. Hindman received a deed from the state of Oregon covering the land, dated October 30, 1884, and recorded on November 20th of the same year, and that thereafter Charles J. Hindman obtained a sheriff's deed for the premises on execution against Samuel, dated February 5, 1902, and recorded March 17th of the same year. It appears in evidence practically without dispute that Samuel M. W.

Hindman, the father of the defendant, entered upon the land in question in the late autumn of 1870; that it was a tract selected as swamp land by the state authorities, and he purchased the same from the state of Oregon taking the deed of October 30, 1884, as stated; that he remained in possession of the realty cultivating and draining it, and occupied it as his own until succeeded by his son under the sheriff's deed already noted, and the latter in turn continued in occupancy until 1912. On April 5th of that year the Oregon & Western Colonization Company, having come into the title of the Willamette Valley & Cascade Mountain Wagon Road Company, contracted to sell the whole S.W. 1/4 of section 3 to Berta Schonleber. On February 15, 1913, the plaintiff purchased the estate of Mrs. Schonleber under her contract and entered into possession of the land assuming the obligations of her covenant.

It is clear that the deed from the state of Oregon to the answering defendants' predecessor in interest constituted color of title. In that respect the instrument is valuable only as showing the extent of the holding of the Hindmans and to relieve them from the necessity of strictly proving the boundaries of their actual tenancy. In other words, by the color of title they are excused from establishing exact possessio pedis. It has been decided many times in this state that, where one holds the exclusive possession of land under color of title, claiming adversely against the whole world to be the owner thereof for ten years continuously, he becomes vested with the fee-simple title. Caufield v. Clark, 17 Or. 473, 21 P. 443, 11 Am. St. Rep. 845; Dunnigan v. Wood, 58 Or. 119, 112 P. 531; Stout v. Michaelbook, 58 Or. 372, 114 P. 929; Parker v. Wolf, 69 Or. 446, 138 P. 463. The evidence clearly establishes that the Hindmans come within the reason of this rule, and that if nothing else were shown they became the owners of it on account of having held possession of the land for so long a period. The plaintiff's predecessors in estate could have begun ejectment against the Hindmans at least upon the issuance of the patent on February 10, 1894, but no steps were taken against them until this suit to quiet title. They consequently became vested with the fee-simple title as stated by the precedents noted.

It is contended, however, that the defendants are estopped to claim any title on account of their conduct. It becomes necessary therefore to rehearse some of the testimony. The plaintiff as a witness in his own behalf declares that he became acquainted with the land in 1906 when he was visiting in that country, and that Mr. Hindman had showed it to him and stated that he himself owned the property. The plaintiff says he bought the land of the Schonlebers February 15, 1913, and took possession immediately. He states that they never cultivated it to his knowledge;...