Sears v. Murdock

• Decision Date: 27 June 1911
• Parties: SEARS v. MURDOCK.
• Court: Oregon Supreme Court

117 P. 305

59 Or. 211

SEARS v. MURDOCK.

Supreme Court of Oregon

June 27, 1911

Appeal from Circuit Court, Washington County; J.A. Eakin, Judge.

Action by J.M. Sears against Emer Murdock. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with further directions.

This is an action to recover the possession of the northwest quarter of the southwest quarter of section 33, in township 2 south range 1 west of Willamette Meridian in Washington county, Or. The defendant denied the allegations in the complaint, which is in the usual form and, for his affirmative defense alleged that during the year 1897 the plaintiff was the owner in fee simple of the premises in dispute, and further proceeded to set up in detail certain proceedings by the assessor, the board of equalization, and the county court culminating in the levy and attempted collection of certain taxes for that year in Washington county by sale of the property, whereby through mesne conveyances he succeeded to plaintiff's title. He further pleaded the short statute of limitations, claiming that this was an action for the recovery of land sold for delinquent taxes; and still further alleged that he had been in the open, notorious, peaceable and hostile possession of the real property in question, under color of title, for 10 years last past. The reply traverses all the affirmative allegations of the answer, except that the defendant's grantor, claiming under the tax proceedings, had executed deeds to the defendant, and that the defendant had immediately gone into possession of the property. At the trial the plaintiff relying in the first instance upon the allegation of the answer, showing a title in him, rested without offering any evidence in chief. The defendant also rested without offering any evidence, and the plaintiff at first did the like, but on further reflection obtained permission of the court to reopen the case, and read in evidence the assessment rolls of Washington county for the years 1897 and 1899, as well as the deed to defendant's grantor, based upon the assessment of 1897, and rested. The court then directed a verdict for the defendant, and from the ensuing judgment the plaintiff appeals.

Webster Holmes, Newton McCoy, and H.B. Nicholas, for appellant.

Bagley & Hare, for respondent.

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

Taken in its entirety, considered with the fact that the defendant offered no evidence at all at the trial, the answer amounts to a confession and avoidance of the plaintiff's cause of action. The...