Urquhart v. Belloni

• Decision Date: 29 November 1910
• Parties: URQUHART v. BELLONI.
• Court: Oregon Supreme Court

111 P. 692

57 Or. 314

URQUHART v. BELLONI.

Supreme Court of Oregon

November 29, 1910

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Suit by Alexander Urquhart against George Belloni. From a decree for complainant, defendant appeals. Affirmed.

Plaintiff sues to quiet his title to 111 acres of land, of which but 17.90 acres are in actual controversy. This small piece of land, triangular in shape, forms the northwest half of lot 3 section 18, were that lot bisected by a diagonal line running from its southwest corner to a point near the northeast corner; such lot being nearly rectangular. Plaintiff owned 265.41 acres of land, including said lot 3, all bounded on the north and west by the Coquille river in Coos county, and a considerable portion of the tract consisting of bottom land, suitable, when cleared, for cultivation; the remainder being hilly and of little value.

In 1893 plaintiff, to secure a loan of $2,500, mortgaged the entire tract to the Board of School Land Commissioners of the state. Defaulting in his payment of the interest, the mortgage was foreclosed, and, on June 23, 1902, the land was sold and purchased by the state for the amount of the decree. On September 8th following the sale was confirmed, and, under the law as it then stood (1 Hill's Ann.Laws 1892, § 303) plaintiff had four months from that date in which to redeem. On September 18th plaintiff sold, for $5,500, 154.41 acres of the tract to defendant; the land sold being described as lots 1 and 2 and the E. 1/2 of the N.W. 1/4 of section 18, and lot 8 of section 7, all in Tp. 28, south of range 13, west of Willamette meridian; plaintiff and his son executing a deed conveying the same to defendant, and warranting the title except the judgment in favor of the State Land Board for the sum of $3,980.85, which latter amount defendant, as grantee, expressly assumed and agreed to pay as a part of the consideration to be paid for the land. At the time of the delivery of the deed defendant paid plaintiff the balance of the purchase price in money, but did not pay to the state until April 7, 1905, the amount due on the judgment, when he secured from the state a conveyance to himself of the legal title to the entire tract, a sheriff's deed having issued to the state on December 18, 1903. Thereafter, on January 16, 1907, plaintiff brought this suit under the statute to quiet his title to 111 acres of land, that part of the original tract which was not included in his deed, and which he claims was not sold to defendant. The complaint is in the usual form and describes the land involved as lot 1 of section 17, and lots 3 and 4 of section 18, in Tp. 28, south of range 13, west of Willamette meridian.

The defendant, by his answer, disclaims any right in or to lot 1 of section 17, lot 4 of section 18, and the southeast half of lot 3, section 18, and, with his answer tenders to plaintiff a deed executed by himself and his wife, quitclaiming said land; but as to the triangular piece, containing 17.90 acres, and forming the northwest half of lot 3, he sets up an equitable estoppel against the right of plaintiff to assert any title thereto because of these alleged facts; that at the time he purchased from plaintiff he understood that he was to have all of the bottom land on the entire tract; that plaintiff agreed with and represented to defendant that the premises described in the deed, which he received from plaintiff, contained all of said bottom land, and represented to him that the east line of the premises conveyed commenced at a pair of bars on the river bank, near the northeast corner of lot 3, running thence to a certain tree at the top of the hill some 80 or 90 rods distant, and at the southwest corner of lot 3, which would include the 17.90 acres in dispute; that defendant was unacquainted with the location of the lines described in his deed, and, relying upon the representations of plaintiff as to what the deed included, he purchased the same and entered into possession thereof; that plaintiff's representations were false, were known to plaintiff to be false, and were made for the purpose of misleading defendant, and did mislead him; that at the time of the consummation of the sale plaintiff put defendant into possession of the identical premises that had been pointed out to him as included in the sale, but that the deed executed and delivered by plaintiff to defendant did not convey all the land sold to him. Defendant admits that he received a deed from the state for the entire tract, but alleges that he is unadvised and does not know why such deed was executed and delivered to him; that since he purchased from plaintiff he has been in peaceable occupancy and possession of all the lands purchased by him, including the 17.90 acres in dispute. He prays that his title be quieted against plaintiff's claim of title.

The reply puts at issue the new matter of the answer and affirmatively alleges all the transactions plaintiff had with defendant respecting the sale of the land, defendant's failure to pay to the state the amount of its judgment before the expiration of the time of redemption, and that defendant secured the deed from the state for the purpose of defrauding plaintiff.

Plaintiff obtained a decree to the effect that he is the owner in fee, and entitled to the immediate possession, of the 111 acres. Defendant was enjoined from asserting any title thereto, and has appealed.

A.J. Sherwood (L.A. Liljeqvist, on the brief), for appellant.

E.D. Sperry (W.C. Chase, on the brief), for respondent.

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

The deed from plaintiff to defendant describes by legal subdivisions the land conveyed, and it is admitted by defendant that the description covers or includes 154.41 acres of land, the full amount he claims to have purchased from plaintiff. But it is asserted that he understood his purchase was to include all the bottom land on the entire tract then owned by plaintiff; that the 17.90 acres in dispute is mostly bottom land; that it is not included in the description of the deed, but adjoins the land described on the east; that when plaintiff was showing him the land at the time of the negotiations for the sale, he, plaintiff, pointed out to defendant where the east boundary line ran, and that it was so described and located on the ground as to include the land in dispute; that relying upon plaintiff's representations, he concluded the purchase, entered into possession, and made valuable improvements thereon. The main question to be determined is an equitable estoppel, set up by defendant against plaintiff's right now to assert his title. To arrive at the merits of the case it is necessary first to clearly understand the situation of the parties as to the title at the time this suit was brought.

At the time plaintiff sold and conveyed to defendant 154.41 acres of the land, he was possessed of the legal title to the entire tract. It was burdened, however with an equitable title in the state as purchaser at the foreclosure sale, which right by the lapse of time and the execution of a sheriff's deed, was liable to ripen into a full legal title. But upon payment to the state of the amount due under the decree, at any time within four months from the confirmation of the foreclosure sale, this equitable right would fall into the legal title. Cartwright v. Savage, 5 Or. 397, 399; Settlemire v. Newsome, 10 Or. 446; Flanders v. Aumack, 32 Or. 26, 51 P. 447, 67 Am.St.Rep. 504. Thus plaintiff's record title to that intended to be retained by him, as well as that conveyed by him to defendant, would be freed from the equity of the state, and defendant would have needed no other assurance of title than plaintiff's deed. In the deed he received he covenanted to pay to the state the amount of its judgment. It is manifest that this covenant was intended for plaintiff's benefit, not only that the judgment should be paid, but that payment should be made in time to preserve to him the legal title to...