Vaughn v. Smith

• Decision Date: 05 December 1898
• Citation: 34 Or. 54,55 P. 99
• Parties: VAUGHN v. SMITH et al. [1]
• Court: Oregon Supreme Court

55 P. 99

34 Or. 54

VAUGHN v. SMITH et al. ^[1]

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Washington county; T.A. McBride, Judge.

Action by William Vaughn against James M. Smith and another. From a decree dismissing the complaint, plaintiff appeals. Affirmed.

This is a suit to cancel a deed to real property, and to recover the consideration paid, and the value of improvements made thereon. The substance of the complaint is that defendants on April 9, 1890, in consideration of the payment of $2,000 sold and (by a deed containing a covenant of warranty against incumbrances) conveyed to plaintiff a tract of land in Washington county, Or., containing 14 3/4 acres, which they fraudulently represented to him was free from incumbrance and, having no knowledge of the falsity of such statement, he relied thereon, and was induced thereby to forego an examination of the records of said county concerning the means whereby defendants' right to said premises was established, and was also persuaded by them not to procure an abstract of the title thereof; that, prior to the execution of said deed, defendants had granted and conveyed an easement in said land to one J.F. Saunders, who, with divers other persons, drives across the same, in consequence of which the said warranty has wholly failed; that about September 1 1892, plaintiff erected on the premises a dwelling house and other buildings, paying therefor the sum of $400, and about March 1, 1893, expended the sum of $75 in clearing the land so as to render it fit for cultivation. Defendants, after denying the material allegations of the complaint, allege that prior to the execution of the deed to plaintiff they informed him of the existence of said right of way, whereupon it was agreed that this easement should be excepted from the operation of the covenant of warranty, but, by the inadvertence of the scrivener, no reservation was made in the deed, and defendants executed the same without knowledge of the omission; that plaintiff, with full knowledge of these facts, entered into, and has continuously retained possession of the granted premises, and taken the rents and profits thereof, amounting to the sum of $675, and has never made any offer to reconvey the land to defendants, or demanded the return of the purchase money. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, and the court found from the evidence taken the facts as alleged in the complaint, except that defendants' representations were made "unthoughtedly"; that plaintiff paid on account of the purchase the sum of $500 only, and gave his note and a mortgage on the premises to secure the payment of $1,500; and that the money expended in clearing the land and erecting buildings thereon amounted to the sum of $400. The court also found that plaintiff had never disaffirmed the contract, or reconveyed said land to defendants, or made any demand upon them for the return of the money paid by him, or offered to account for the use and occupation of the premises, or the rents derived therefrom; that plaintiff, with full knowledge of the existence of said right of way, had cleared and improved the granted premises, erected buildings thereon, paid an installment of interest due on said mortgage, leased the land, and collected the rents thereof, which he retained, and in all other respects...