Seavey v. Williams

• Decision Date: 31 July 1920
• Citation: 97 Or. 310,191 P. 779
• Parties: SEAVEY v. WILLIAMS ET AL.
• Court: Oregon Supreme Court

191 P. 779

97 Or. 310

SEAVEY v. WILLIAMS ET AL.

Supreme Court of Oregon

July 31, 1920

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Suit by John H. Seavey against Clara Bell Williams and others. From a decree for defendants, plaintiff appeals. Reversed, and decree entered for plaintiff.

This is a suit to quiet title to about 30 acres of land in Lane county, described in the complaint as follows:

"Beginning at a point on the south line of section 12 in township 18 south of range 3 west of the Willamette Meridian 6.25 chains north 88 degrees 51 min. west of the southeast corner of said section, thence north 88 degrees 51 min west 23 chains to the center of the old channel of the Coast Fork river; thence along the said center north 30 deg. 22 min. east 7.49 chains; thence north 49 deg. 21 min east 25 chains more or less to the center of the present channel of the Coast Fork river; thence south 0 deg. 44 min. east 23.30 chains to the place of beginning containing 30 acres of land in section 12, township 18, S R. 3 W. W. M."

The plaintiff alleges that he and his predecessors in interest through whom he deraigns title, have been in the visible, open, notorious, hostile, continuous, and adverse possession of the premises, under a claim of ownership and title, for more than 20 years. The complaint is in the usual form.

The defendants admit that they claim an interest or estate in and to about 20 acres of the land described in the complaint, a particular description of which is contained in the answer, and plead title to and ownership of that portion. They deny all other material allegations of the complaint. The answer is traversed by the reply.

Testimony was taken, and the court found that in 1904 the plaintiff and James and Jesse Seavey purchased the land described in the complaint from George C. Simon, and that in January, 1908, the plaintiff acquired the interest of James and Jesse Seavey. Other findings were to the effect that in June, 1904, the plaintiff built a fence around a portion of the land, inclosing it with about 2,000 acres of other property which he owned; that there was no fence inclosing the land in dispute, along the Coast fork of the Willamette river; that during the dry season plaintiff's stock could pass across the river from his other premises to the land in controversy; that the tract in question was entirely covered with brush and timber up to and including the year 1913, when there was some wood cut on the premises; that the land was used by the plaintiff for pasturing stock from time to time; that in 1912 there was a county road located through a portion of it, which in 1913 was opened for travel; that in the location of the road a portion of the fence was torn down; that in June, 1913, stock belonging to Johnson, Chapman, and Hayes passed through such opening to and upon the land claimed by the plaintiff; that there was no obstruction to prevent their stock from going upon the land from the road; and that by reason thereof the land remained open from June, 1913, until January, 1915, at which time Barr built a fence along the road, inclosing the land claimed by plaintiff. It was further found that the plaintiff used the land in dispute from 1904 until June, 1913, for pasturing his stock; that after the fence was torn down he continued to pasture his stock upon the property from time to time; that it was so used by other owners of stock from June, 1913, to January, 1915; that the plaintiff did not have any title or color of title to the land described in the answer; that his possession was from January, 1904, until June, 1913, only; and that he was not in continuous, open, notorious, and exclusive possession of the premises described in the complaint, under a claim of right, for the period of 10 years.

Based upon these findings, the court rendered a decree declaring the defendants to be the owners of the land described in their answer and quieting the plaintiff's title to the remainder of the 30-acre tract only. The plaintiff appeals.

O. H. Foster and E. O. Potter, both of Eugene (O. H. Foster, of Eugene, on the brief), for appellant.

C. A. Hardy, of Eugene, and J. M. Devers, of Salem, for respondents.

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

The 30-acre tract claimed by the plaintiff is in the form of a triangle, and the 20 acres to which the defendants claim title form substantially another triangle. Although the boundaries are not identical, all of the latter tract, except very small fractions on the south and east, lies within the 30 acres.

The plaintiff's record title was acquired in January, 1904, by a warranty deed from George C. Simon, which conveyed, among other lands, all of the east half of section 12, "except about twelve acres lying south of the Coast Fork river." It appears that Simon obtained his title from Elizabeth Shannon by a conveyance on October 15, 1899, in which the 12-acre exception is in the same words used in the deed to the Seaveys. It is shown by the defendants' map that there are more than 100 acres in the east half of section 12 which lie "south of the Coast Fork river." Under such a state of facts and in the absence of allegation or proof as to which particular 12 acres were meant or understood to be excepted, as between the grantor and the grantee in particular, the exception would be void for uncertainty. The rule is thus stated in 8 R. C. L.:

"In short, by an exception some part is excluded from the conveyance and remains in the grantor by virtue of his original title, while a reservation creates a new right out of the subject of the grant and is originated by the conveyance." Page 1090.

"The rules of construction applicable to grants apply also to an exception therefrom, from which it follows that the words of exception must be as definite as those necessary to convey a title." Page 1096.

"If an exception is not described to a certainty, the grantee shall have the benefit of the defect. * * * If the description of the exception is void for uncertainty, the title to the whole tract passes, the exception alone being void." Page 1097.

Under the last-quoted excerpt, the text cites Loyd v. Oates, 143 Ala. 231, 38 So. 1022, 111 Am. St. Rep. 39; Lange v. Waters, 156 Cal. 142, 103 P. 889, 19 Ann. Cas. 1207; Attebery v. Blair, 244 Ill. 363, 91 N.E. 475, 135 Am. St. Rep. 342. Those authorities sustain the rule stated.

As the 12-acre exception is void for uncertainty, it must follow that on January 30, 1904, the plaintiff received a warranty deed which purported to convey the property described in the complaint; that it was based upon a like conveyance previously executed to his grantor by Elizabeth Shannon; and that such deeds were sufficient to give the plaintiff and his grantor color of title to the lands described in the complaint, from and after October 15, 1899. In Swift v. Mulkey, 17 Or. 532, 21 P. 871, this court held:

"Color of title is that which in appearance is title, but which in reality is no title. A claim to property under a conveyance, however

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