Smith v. Badura

• Decision Date: 03 March 1914
• Citation: 70 Or. 58,139 P. 107
• Parties: SMITH v. BADURA ET AL. [d]
• Court: Oregon Supreme Court

139 P. 107

70 Or. 58

SMITH v. BADURA ET AL. ^[d]

Supreme Court of Oregon

March 3, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Thomas H. Smith against Mary D. Badura and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action of ejectment. The cause was tried by the court without the intervention of a jury, and a judgment rendered in favor of defendants, from which plaintiff appeals.

The complaint is in the ordinary form in such cases. The answer after denying the allegations of the complaint, sets up adverse possession for more than 10 years prior to the commencement of the action. The evidence tended to prove, and the trial court found, that the defendants went into possession of the real property, namely, lot 4, in block 1 in Center addition to East Portland, Multnomah county, Or during the year 1896, and that since that time they have been in the exclusive, peaceable, adverse, and notorious possession of the same, and have exercised acts of ownership over it. It appears that when they first went into possession the defendants fenced the premises, set out trees, and constructed a small building thereon; that in February, 1905 they erected a dwelling house on the property, and made other valuable improvements; that neither the plaintiff nor any of his predecessors in interest have been in possession of the property or exercised any acts of ownership over it during the past 16 years, or paid any taxes thereon.

Chas. E. Lenon, of Portland (Clinton A. Ambrose, of Portland, on the brief), for appellant. Frank Schlegel, of Portland, for respondents.

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

It is contended on behalf of plaintiff that the defendants have not established title to the property by adverse possession, for the reason, as we understand the record, that the testimony did not show that they declared that they claimed title to the property; that they recognized the right of one Cox, who held a mortgage upon the lot for $250. In disposing of the contention as to the mortgage, it is sufficient to say that the defendants have acquired whatever right Mr. Cox had in the property.

The husband, Joseph Badura, was ill at the time the testimony was taken, and was not able to be present. He transacted the business during the early years of their possession of the lot, and the intention of the defendants as to claiming title is indicated only by their acts in fencing the lot, building thereon, and occupying the same exclusively, which to all appearances was adverse to all the world. Ambrose v. Huntington, 34 Or. 484, 56 P. 513.

It is said in Angell on Limitations, § 383: "As an adverse possession, then, for the time limited by the statute, confers a right, a purchaser of real estate must not trust merely to the papers and records, but must inquire of the person whether he claims to be the owner of the premises. Publicity and notoriety of possession are sufficient to put a purchaser upon inquiry, and amounts to constructive notice. Putting a fence, for an example, around the land, or erecting buildings upon it, are constructive notice to all the world. And it has been held that, to prevent the operation of the statute, a parol acknowledgment of the adverse possession by the person in possession must be such as to show that he intends to hold no longer under a claim of right; but declarations made merely with a view to compromise a dispute are not sufficient."

The matter shown in relation to the mortgage which Mr. Cox did not seem to consider worth foreclosing can scarcely be deemed a dispute in regard to the title or possession of the land.

In Altschul v. O'Neill, 35 Or. 202, 209, 58 P. 95 97, it is said: "It is not always possible to prove the claim of right or title by direct declaration to that effect, and the purpose of the party in holding must be gathered from his acts and demeanor while...