Smith v. Shattuck

• Decision Date: 10 June 1885
• Parties: SMITH v. SHATTUCK, Adm'r.
• Court: Oregon Supreme Court

7 P. 335

12 Or. 362

SMITH v. SHATTUCK, Adm'r.

Supreme Court of Oregon

June 10, 1885

Appeal from Multnomah county.

Killin & Moreland, for appellant.

James K. Kelly, for respondent.

THAYER J.

This appeal is from a judgment of the circuit court for the county of Multnomah. The appellant commenced an action in said court to recover the possession of certain real property consisting of a tract of 37 1/2 acres of land situated in said county of Multnomah. The complaint is in the usual form to recover the possession of real property. The respondent interposed several defenses, viz.:

First. That the land was owned by one I.B. Smith, and in his possession at the time of his death, September 3, 1882, and that the respondent was the administrator of the said Smith. Second. That on the thirteenth day of June 1866, the land was sold by the sheriff of Multnomah county for taxes due from the appellant, which were delinquent, and was purchased at said tax sale by said I.B. Smith; that no redemption thereof having been had, a deed was duly executed by the sheriff of said county to the said I.B. Smith, on the third day of July, 1868; that said deed was duly recorded in the office of the clerk of said county, on the second day of November, 1870, since which time the said I.B. Smith was in the actual possession of said tract of land until the time of his death; and that no action, suit, or proceeding for the recovery of said land was commenced within three years from the said second day of November, 1870, the time of recording the tax deed. Third. That neither the appellant, his ancestor, predecessor, or grantor, was seized or possessed of the premises within 10 years prior to the third day of September, 1882, when said I.B. Smith held and possessed the same adversely to the pretended title of the appellant for more than 10 years before the time of his death, under a claim of title in fee-simple.

The appellant filed a reply, in which he denied the several defenses set up by the respondent, and the issues so formed were tried by the court and a jury duly impaneled. The appellant, upon the trial, gave in evidence a deed executed by Gideon Tibbetts and wife to himself, dated March 24, 1858 of the land in controversy; also a patent from the United States to the said Gideon Tibbetts and wife, bearing date January 31, 1873, of a larger tract of land, and which included the land in dispute. The said deed to appellant contains full covenants of assurance, and the patent was issued under the Oregon donation law. The premises in question are a part of the said donation claim that inured under the said law to Mrs. Tibbetts. The respondent upon his part gave in evidence the tax deed alleged in his answer. When it was offered in evidence, counsel objected to its introduction upon the grounds that it was incompetent and immaterial, as it contained no sufficient description of the land. The description in the deed is as follows "Thirty-seven and one-half acres of land in section 11, T. 1 S., R. 1 E., known as 'Smith's farm,' in Multnomah county, state of Oregon." The deed also contained a recital as follows: "The said property having been duly assessed for the fiscal year, 1865, to the said Y.A. Smith." When the objection was made to the introduction of this deed, the respondent's counsel stated to the court that he would show that in the month of June, 1866, said land was known as Smith's farm in the neighborhood where it is situated, and thereupon the court overruled the objection, and said deed was read in evidence to the jury.

Gideon Tibbetts, having been called as a witness, testified that he was very well acquainted with the land; that it was a part of the donation land claim of himself and wife; that his claim was in sections 10, 11, and 12, mostly in section 11, in the township and range aforesaid. The witness was then asked if he knew where a tract of land lies, described as "37 1/2 acres of land in section 11, T. 1 S., R. 1 E., known as 'Smith's farm;' " to which he answered: "I know of a tract of that size that Smith pretended to own; he paid me for it; we always called it Mr. Smith's land,--that piece of ground." Said witness, in answer to another question asked by the respondent's counsel, testified: "This piece of land was known there as Smith's land, referring to June 6, 1866, and it is known to-day, I believe, as that. I have never heard of any other tract of land in that section that has been known as Smith's land or as the Smith land." This evidence was taken against the objection of appellant's counsel as being incompetent and immaterial; and there was no other evidence tending to show that the premises in controversy were in 1866, or at any other time, known as Smith's farm. Said witness also testified that as much as 15 years ago I.B. Smith, deceased, occupied a house which had been moved on the land in controversy for a school-house, but never used for such purpose; that I.B. Smith, deceased, slept in it and cooked there; and that some wood-choppers, cutting wood on the land in his employ, for a time slept there, and cooked their meals in it. He also testified that for the last five or six years of his life I.B. Smith resided on the land in controversy, in a small house built by himself, and had a small piece under cultivation. Another witness, John Campbell, testified that in 1878 or 1879, he, at the request of I.B. Smith, surveyed the land in controversy for him, and that he after that time, and until his death, resided upon it; and there was no other evidence tending to show adverse possession of the land in controversy by I.B. Smith. Respondent then offered in evidence a deed of Gideon Tibbetts and wife to Isaac B. Smith, dated the seventeenth day of March, 1874, for the land in controversy, to the introduction of which the appellant objected, because it was incompetent and irrelevant, which objection the court overruled, and allowed the respondent to read the same to the jury; to which ruling of the court the appellant then excepted. The respondent then rested, whereupon the appellant moved the court to strike out from the evidence the tax deed offered in evidence by the respondent, and to withdraw it from the jury; which motion the court overruled, and appellant excepted.

The respondent having rested, the appellant gave in evidence a certified copy of the assessment roll of said county of Multnomah for the assessment of taxes for the year 1865, and also a certified copy of the notice of said sale of said land for delinquent taxes, and then requested the court to direct the jury to find a verdict for the appellant, which the court refused. The said assessment roll and notice of sale contained the same description of the premises assessed and sold as the tax deed, except that the words, "known as Smith's farm," were not included therein. And thereupon the court proceeded to charge the jury; and, among other instructions, submitted the following:

"If you find the fact to be that there was in section 11, T. 1 S., R. 1 E., and on the donation land claim of Gideon Tibbetts, a parcel of land conforming in size and shape to the land in controversy, and known in the year 1866, about July of that year, as 'Smith's farm,' and that there was no other similar piece of land in that section that was so known, then your verdict should be for defendant."

To the giving of this instruction the appellant then excepted because there...