Osborn v. Ketchum

Opinion by Mr. Justice Moore.

1. The plaintiff fails to allege that it was Critcherson's intention to purchase, or Ketchum’s to sell and convey, the real property mentioned in the amended description, or that there was any contract entered into between the said parties, or that the mistake, if any, in the execution of the deed, was mutual; and the defendants contend that on account of this failure to so allege the complaint does not state facts sufficient to constitute a cause of suit. It is true that in a suit to reform a deed for mutual mistake, the complaint should distinctly set forth the original agreement and understanding of the parties, point out with clearness and precision wherein there was a mistake, and show that it did not arise from gross negligence of the plaintiff: Lewis v. Lewis, 5 Or. 169 . In the case at bar it is alleged that to make the. deed conform to the actual intention of the parties the description should be amended so as to read as set forth in the complaint. The record shows that a general de *357 murrer to the complaint was interposed, which, by consent, was overruled, and the defendants filed their answers. In Hyland v. Hyland, 19 Or. 51 , 23 Pac. 811 , it was held, a similar complaint being under consideration, that it was not a case of a defective cause of suit, but of a defective statement of it; that if the case had been presented in this court upon demurrer to the pleading, the demurrer would probably have been sustained, and that, having answered, every reasonable inference should be in favor of the complaint that could be drawn therefrom. If it had been the intention of Oritcherson to purchase the real property mentioned in the amended description, and the intention of Ketchum to grant and convey another tract, then the minds of the parties never met or agreed upon the terms of the contract, and hence the mistake, if any, could not have been mutual. But here,—while conceding that the description in the deed is different from that now sought to be established,—the plaintiff distinctly alleges that it was the actual intention of both parties to purchase and convey the property by the description as amended; hence it follows that, in the absence of a demurrer to the complaint, these necessary allegations are reasonably inferred.

2. Section 855 of Hill’s Code furnishes the following rule for construing the descriptive parts of a conveyance, when the construction is doubtful, and there are no other sufficient circumstances to determine it: “2. When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.” The southeast corner of the west half of the donation land claim of John Phillips and wife in Benton County, Oregon, is shown by the record to be a permanent and visible monument, forming the initial point of the premises intended to be conveyed. The *358 county road mentioned in one of the calls of the deed is also a permanent and visible monument, but is inconsistent with the line described as the north boundary of the tract conveyed. If there were no other sufficient circumstances to determine the tract intended to be conveyed, under the statutory rule of construction, the premises would be held to include the land described as follows: “ Beginning at the initial point and running thence westerly along the south line of said claim eighty rods; thence northerly eighty rods, more or less, to the center of the road; thence easterly with the meanderings of the road eighty rods, or more, to the east line of the west half of said elaim; and thence southerly eighty-one rods, more or less, to the place of beginning.” The permanent and visible monument at the southeast corner, and the said road on the north of the tract, would thus become paramount to the lines, angles, and even the surface, if it were not for the limitation that “the intention of this conveyance is to convey forty (40 ) acres of land out of the southeast comer of the west half of said claim, in as near square shape as can be had.” The intention of the parties is to be ascertained by considering all the provisions of the deed, and it is the duty of the court to give effect to such intention if practicable: 2 Devlin, Deeds, § 836. Under the rules of construction above given, qualified by said limitation, the amended description must necessarily express the intention of the parties.

F. Critcherson testified that the premises had not been surveyed when he made the contract of purchase with M. B. Ketchum; that a fence containing seventy-nine panels extended from the southeast corner along the east boundary to the county road, which they estimated at one rod to the panel, and added two rods to make the line extend to the center of the road; that he and Ketchum *359 estimated that the west boundary would intersect the county road at a gate near some willows; and that the site for the dwelling-house was selected by him at Ketchum’s suggestion, in order to procure a supply of water and to be sheltered from the wind. John McGee testified that Ketchum told him they counted the panels of the fence on the east boundary to determine its length, and that he showed the witness a strawstack where he said he thought the west line would intersect the county road. W. H. Dilly testified that Ketchum told him how they obtained the length of the east boundary, and that they added two rods to extend it to the center of the road. A. B. Alexander testified that he hauled the lumber for the dwelling-house erected upon the disputed tract, and that Ketchum told him where to unload; that Ketchum also told him how the lines would run, and said the west boundary would probably be near a strawstack he showed the witness. M. B. Ketchum did not deny that he told McGee, Dilly, and Alexander how the lines would run, or that the west boundary would intersect the county road near said strawstack, but testified that he did not remember of having told them where the lines would probably run; that he might have told the witnesses that the line extended to the road near the strawstack. The evidence also shows that Ketchum assisted Critcherson in building the dwelling-house, and saw the improvements as they were being made; but he testifies that they were placed there by him, and it was agreed that if Critcherson did not purchase the disputed tract, a right of way across it to Critcherson’s land should be granted for one dollar. The deed describes the east boundary as being eighty-one rods, which corroborates the testimony of the witnesses that it was ascertained by counting the panels of said fence and adding two rods to extend it to the center of the road. The evidence shows that a strawstack stood *360 near a cluster of willows, and that the survey according to the amended description is within about two rods of said strawstack. Without quoting more of the testimony, we think it shows beyond a reasonable doubt that the parties intended to convey by said deed the premises mentioned in the amended description. The record also shows that the defendant Amanda Ketehum accepted a quit-claim deed .in which it was sought to convey to her the disputed tract, and she contends that she is an innocent purchaser for a valuable consideration without knowledge or notice of plaintiff’s claim thereto. This deed to her fixes the initial point eighty-one rods north of the southeast corner of Rhoda Phillips’ donation land claim. The government patent grants the north half of said claim to Rhoda Ann Phillips, and, as the premises in question are situated in the west half thereof, the initial point in the deed to Amanda Ketehum appears, from the description given in the patent, to be more than a half mile distant from the northeast corner of the tract described in the deed to Critcherson, and hence does not embrace any of the land in controversy, and even if her deed had been one of general warranty it could not support her contention. The decree must therefore be affirmed.

Affirmed.