alteration referred to seemed to be necessitated by the peculiar conditions attending the pioneer settlements upon the public lands of the Pacific Coast. Coryell v. Cain, 16 Cal. 567. land, and his occupancy thereof is unlawful; | he had a right to the immediate possession that plaintiff has not sustained any damages of the premises. Warvelle, Eject. § 235. The by reason of the acts complained of; that, subject to the paramount title of the United States, plaintiff is the owner in fee of the premises, and entitled to the immediate possession thereof; and that testimony was received tending to show that the register and receiver of the local land office had recommended that Fox's entry be canceled, but no evidence was offered to prove that the Land Department of the United States had annulled the entry. Based on these findings and the conclusions of law deducible therefrom, judgment was given for the restitution of the land, and the defendant appeals. Robert A. Miller (W. H. Fowler, on the brief), for appellant. McFadden & Bryson (Percy R. Kelly, on the brief), for respond ent. MOORE, J. (after stating the facts as above). No transcript of the testimony has been brought up, and the only question to be considered is whether or not the findings of fact support the judgment. [1] Our statute, regulating the practice in ejectment, contains clauses as follows: "Any person who has a legal estate in real property and a present right to the possession thereof may recover such possession with damages for withholding the same, by an action at law." L. O. L. § 325. "The judgment therein shall be conclusive as to the estate in such property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the same is given and against all persons claiming from, through or under such party after the commencement of such action." Id. § 337. In Hoover v. King, 43 Or. 281, 284, 72 Pac. 880, 65 L. R. A. 790, 99 Am. St. Rep. 754, in referring to the enactment quoted, Mr. Justice Bean says: "It is thus apparent that the statute contemplates that the title to land may be tried in an action to recover possession thereof, and that, so far as the same is tried and determined, the judgment therein is conclusive upon the party against whom it is given." Issue having been joined respecting the title to the land, and the foundation of that title having been challenged in the manner indicated, can the judgment be upheld? In a new country, the speedy settlement of which has been induced by the discovery of precious metals, or by a realization of the immense wealth of timber, or a knowledge that certain lands will immediately become valuable as a town site, or for any other purpose, covetousness often prompts others to obtain, if possible, real property to which prior occupants have secured a preferred right; and in order to protect that right judicial tribunals have been obliged to so construe the principles of the common law and to expand its rules to meet the needs and to satisfy the demands of modern civilization, and as an outgrowth of that doctrine it has been held by the courts of last resort in some of the Middle and in most of the great Western states that an equitable estate in lands, coupled with a right to the immediate possession thereof, was sufficient to maintain an action of ejectment. The doctrine referred to has not been carried in Oregon to the extent noted, but it was early held that an action of ejectment could be upheld, when based upon a title evidenced by a final certificate issued by the register and receiver of the local land office and lawfully held by a plaintiff; the court saying: "And in any case, although the legal title is still in the United States, we think the donee of a land claim, having obtained a certificate thereto, or his assignee, may maintain this action against one who shows no color of title." Keith v. Cheeny, 1 Or. 285, 287. In Rader v. Allen, 27 Or. 344, 348, 41 Pac. 154, 155, it was determined that a receiver's certificate issued for mining lands afforded adequate evidence, and was sufficient to support an action of ejectment; Mr. Justice Wolverton remarking: "The rule is that, when the contract of purchase is completed by payment of the purchase money and the issuance of the patent certificate by the authorized agent of the government, the purchaser acquires a vested right in the land of which [2] At the common law the plaintiff in an he cannot be subsequently deprived, if he has action of ejectment was required to show a complied with the law prior to the entry. It valid legal title to the demanded land at the then ceases to be a part of the public domain, time of the demise laid in the declaration and and is no longer subject to the laws governprior to the commencement of the action; a ing the disposition of public lands. mere equitable interest in real property be- Such an interest is a legal estate in lands, ing insufficient for that purpose. 10 A. & E. and can be recovered by an action of ejectEncy. (2d Ed.) 482; Fenn v. Holme, 21 How. ment." In that case, as "a legal estate in 481, 16 L. Ed. 198; Hooper v. Scheimer, 23 real property" is made a condition precedHow. 235, 16 L. Ed. 452. This ancient rule ent to the enforcement of a right to the poshas been changed in some states by statute, session of the premises, it was consonant with and in others by judicial interpretation, so the doctrine announced and necessary to so as to permit an action of ejectment to be sup-construe the provisions of the statute (L. O. ported upon proof of a plaintiff's equitable L. § 325) as to make a final receipt evidence estate in land, when the evidence showed that of the transfer of a "legal" estate, though no patent to the land had then been issued by | transfer of the legal title, the Land Departthe officers of the United States. ment retains jurisdiction of the subject-matter, and if the right of the person receiving the final certificate to obtain the land is challenged on the ground of his fraud, or that he has not complied with the requirements of the law, and at a trial such charge is substantiated, the entry may be canceled and the land restored to the public domain. [3] The revised rules of practice adopted by the Department of the Interior, July 15, 1901, and in force when the final certificate issued hereon was challenged (31 Land Dec. Dept. Int. 527), provides that a contest may be initiated against a party to any entry under the laws of Congress relating to public lands for any sufficient cause affecting the legality or validity of the claims. Rule 1. "Registers and receivers may order hearings in all cases wherein entry has not been perfected and no certificate has been issued as a basis for patent." Id. 4. "In case of an entry or location on which final certificate has been issued the hearing will be ordered only by direction of the Commissioners of the General Land Office." Id. 5. "Applications for hearings under rule 5 must be transmitted by the register and receiver with special report and recommendations to the Commis sioner for his determination and instructions." Id. 6. Pursuant to these rules, the recommendation made by the register and receiver to the Commissioners of the General Land Office, that the entry made by Fox of the land in controversy be canceled, initiated in the manner prescribed a contest respecting the validity of the entry, thereby chal The interpretation thus given is not forced, for, though it is generally asserted that a legal title to real property can be transferred only by the execution of a sealed instrument, or by some other mode of conveyance duly evidenced by a writing, the rule is settled in this state that an adverse possession of land for the period prescribed by the statute creates such a "legal" estate as will support an action of ejectment. Joy v. Stump, 14 Or. 361, 12 Pac. 929; Barrell v. Title Guarantee Co., 27 Or. 77, 39 Pac. 992; Pearson v. Dryden, 28 Or. 350, 43 Pac. 166; Neal v. Davis, 53 Or. 423, 99 Pac. 69, 101 Pac. 212. In Pierce v. Frace, 2 Wash. 81, 26 Pac. 192, 807, it was ruled that the holder of a final receipt for the entry of public lands, which certificate was in force and uncanceled, could maintain an action of ejectment to protect his possession; but that until the is suance of a patent for the real property the Commissioner of the General Land Office might suspend the entry and order a re-examination, at which, if it appeared that the claimant had not complied with the requirements of the law, the entry could be canceled. In Hays v. Parker, 2 Wash. T. 198, 3 Pac. 901, in an action of ejectment, where the plaintiff alleged title to the demanded premises by virtue of a certificate of purchase issued to him by a receiver of public money of the United States, it was held that the defendant might properly plead, by way of inducement, a certain state of facts, by reason whereof the Commissioner of the General Land Office caused such certificate to be can-lenging plaintiff's title and depriving the trial celed; that striking such matter from the answer, and refusing to permit testimony tending to prove the fact as explanatory of the Commissioner's action, were erroneous; and that, in such an action, if in the course of the trial it was made to appear to the court that at the time of the commencement of the action the claims of the respective parties to the land in dispute were being waged in the Department of the Interior of the United States, and were not fully determined by the executive branch of the government, it was not proper for the court to aid either party by way of affirmative relief, but that the action should have been dismissed at the cost of plaintiff, and the refusal of the court to so adjudge was error. If a claimant of public land has performed in good faith all the conditions required of him by the laws of the United States, made final proof in support of his entry, and thereupon secured from the receiver of the local land office the requisite final receipt, he has obtained, as was said in Rader v. Allen, supra, "a vested right in the land, of which he cannot be subsequently deprived." Until the patent has been issued by the proper officers of the United States, evidencing a court of jurisdiction of the subject-matter, until after the title to the land has passed from the government. Fitzgerald v. Keith, 5 Okl. 260, 48 Pac. 110. The findings of fact do not support the judgment, which is reversed, and the cause remanded, with directions to dismiss the action. 1 BURNETT, J., dissents. GARDNER v. KINNEY. (60 Or. 292) (Supreme Court of Oregon. Sept. 26, 1911.) 1. APPEAL AND ERROR (§ 1002*)—VERDICT— CONCLUSIVENESS. Where the evidence is conflicting, the Supreme Court is bound by the verdict, so far as it is supported by any testimony. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3934; Dec. Dig. § 1002.*] 2. CONTRACTS (§ 350*)-ACTIONS-SUFFICIENCY OF EVIDENCE. In an action for compensation under a contract to do certain surveying for defendant, evidence held to show that plaintiff remained on For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the ground after the survey was made pursuant to the original contract. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 350.*] 3. ESTOPPEL (§ 69*)-TESTIMONY AS WITNESS. One who contracted with an agent personally to assist him in doing the work the agent was employed to do, and did not look to the principal for his pay, and so testified in the agent's action against the principal for compensation was estopped to afterwards claim compensation from the principal for his services. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 170-172; Dec. Dig. § 69.*] 4. PRINCIPAL AND AGENT (§ 85*)-AGENT's AUTHORITY. An agent, employed to make surveys, with authority to incur necessary expenses therein, could contract in his own name for hiring a boat in making them, and recover the amount paid therefor from the principal. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 224–228; Dec. Dig. § 85.*] 5. CONTRACTS (§ 333*) - ACTIONS-ALLEGA TIONS TERMS OF CONTRACT. The complaint alleged that defendant employed plaintiff to run a survey on a certain creek, the work to be completed by October 1. 1908, and to make a report, and that plaintiff was to receive a certain sum per day until the work was completed and the report tendered, and that he finished the work on September 25, 1908, on which, day he was directed by defendant to remain on the ground for further instructions, and remained there until January 4, 1910, when he returned and tendered a report. Held, that the complaint did not allege that, by the original contract, plaintiff was to receive compensation at the contract price for the days he was delayed at the place of work after actually completing the survey. The complaint alleges that on May 4, 1908, defendant employed plaintiff to run a level and plot dam sites on Marble creek, in British Columbia. Plaintiff was to complete this work by October 1, 1908, and then make a report, embodying the information sought, and turn it over to defendant; that plaintiff was to receive as compensation $5 per day, from May 4, 1908, until the work was completed and the report was tendered to defendant, also all his necessary expenses, with authority to employ assistants, if necessary, to carry on the work, defendant agreeing to pay plaintiff a sum equal to the expenses incurred for these purposes, and to advance him money to meet such expenses as plaintiff might require; that he continued in the employ of defendant for 129 days, or until the 25th of September, 1908, when he had finished the work; that on September 25th he was directed by defendant to remain on the ground for further instructions; that he remained until January 4, 1910. when he returned to Portland, and tendered to defendant a complete report of his labor and expenses; that under the terms of the contract he was entitled to recover from defendant $1,150 for labor, for expenses, including living expenses and money paid out for labor, $571.75, all of which defendant promised and agreed to pay, and upon which he has only paid $550, leaving due the sum of $1,171.75. Defendant answered, pleading the general [Ed. Note. For other cases, see Contracts, issues as to the whole complaint, except as Dec. Dig. § 333.*] specifically admitted, and set up the contract 6. CONTRACTS (§ 350*)—ACTIONS-SUFFICIENCY in the following terms: "That on or about OF EVIDENCE. In an action for services in making a survey pursuant to contract, evidence held to show that plaintiff was to receive reasonable compensation, if any, for the time he delayed returning, at defendant's request, after completing the work, and not according to the contract price. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 350.*] 7. APPEAL AND ERROR (§ 1140*)-DISPOSITION -AFFIRMANCE IN PART-REMISSION. Where the amount erroneously allowed in a contract action is certain, the Supreme Court may cause it to be remitted by plaintiff, and affirm the judgment for him as to the balance of the claim. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4478; Dec. Dig. 8 1140.*] 8. COSTS ($ 234*)-ON APPEAL. Defendant will be allowed costs on appeal upon affirming a judgment for plaintiff, after requiring him to remit an item erroneously allowed. [Ed. Note.-For other cases, see Costs Dec. Dig. § 234.*] the 2d day of July, 1908, at Portland, Or.. the defendant, induced by and relying upon the representations of the plaintiff that he was a competent and skilled surveyor and civil engineer, employed the plaintiff in his said capacity of surveyor and civil engineer, to run a level from Marble Cove, on QuatSino Sound, Vancouver Island, B. C., up Marble creek to Alice Lake, a distance of about five miles, to ascertain the fall of said stream, and establish the points thereon suitable for dams, within a reasonable time, with instructions to enter an account of his work, including his field notes of survey, and expenses daily, in a journal kept by him for that purpose, and to make profiles showing the fall of said stream and cross sections at points suitable for dams, and to forward copies of the entries in such journal, together with such profiles, from time to time, and by each weekly mail, to the defendant at Portland, Or., and to complete said work as a Appeal from Circuit Court, Multnomah competent and skillful surveyor and civil County; W. N. Gatens, Judge. Action by C. L. Gardner against Marshall J. Kinney. From a judgment for plaintiff, defendant appeals. Affirmed as modified, if plaintiff remits a part of the verdict; otherwise reversed. engineer should, and as soon as possible under the circumstances, and in consideration of such services, then and there promised and agreed to advance to plaintiff from time to time such sums of money as he might require to defray his necessary expenses while *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes engaged in said work, and upon the comple- | that authority or employed help unnecessarition thereof and receipt of a final satisfac- ly was a question of fact for the jury. tory report to pay him for such services at Johnston's testimony on this trial would esthe rate of five ($5.00) dollars per day for the time necessarily occupied by him in going to and completing said work and returning from and reporting the same." There was also a counterclaim against plaintiff for the negligent manner in which he performed the work, and for failure to make his report as required by the alleged contract. Upon the trial plaintiff testified, among other things, that the contract was made on May 4, 1908, but that there was no time set for his departure to Marble creek, although he understood it was to be within a day or two; that defendant delayed sending him until July 1, 1908; that in a conversation with Kinney, about this delay, Kinney said, "Of course, you know I am paying demurrage on this," and objected to his going away on other employment, but finally consented to his going to Southern Oregon for two weeks; that he employed one Johnston, at $3 per day, to assist him, and agreed personally to pay him; that the other expenses for boat hire and provisions were purchased upon his own credit, Kinney not being known there; that Johnston's bill amounted to $210, of which plaintiff has paid $36, leaving $183 still due; that he paid $284 for groceries and incidentals, and became personally liable for $68.75 for boat hire, of which he has paid $12. Johnston testified that he contracted personally with plaintiff, and did not look to Kinney for his pay. Other facts appear in the opinion. E. B. Watson and B. B. Beekman, for appellant. O. L. Matthews (Dimick & Morehead. T. J. Cleeton, and Christopherson & Matthews, on the brief), for respondent. MCBRIDE, J. (after stating the facts as above). [1-3] The testimony in the case is conflicting, and while the court might be inclined to form a vastly different conclusion from that arrived at by the jury, yet, so far as there is any testimony to sustain it, we are bound by their verdict as to matters within the issues made by the pleadings. Plaintiff's original contract, as he states it, was to go to Marble creek and run his levels, and return and make his report. He testifies that when the leveling was done defendant directed him to remain there on the ground, and that he did so, pursuant to directions. Taking this testimony as true, as we are compelled to do after verdict, and there being no new hiring or suggestion of a different employment at lower wages, we must assume that both were acting under the assumption that the directions given were pursuant to the original contract, especially as plaintiff had not returned or made his report. Plaintiff had authority to employ assistance, and whether he abused top him from claiming anything from defendant in another suit, and upon his statement of the case he would have a good cause of action against plaintiff. "The principal cannot be held liable, where the other party, with full knowledge as to who was the principal, and with the power of choosing between him and the agent, has distinctly and unquestionably elected to treat the agent alone as the party liable." Mechem on Agency, § 696. [4] It was competent for plaintiff to contract in his own name for the hire of the boat, and not having pledged defendant's credit we see no good reason why he should not recover. [5-7] The court erred in submitting to the jury the claim for 57 days delay. It was not within the terms of the contract, as stated, nor as testified to by plaintiff. His compensation upon the contract, as he states it, was to begin when he should start to Marble creek. If Kinney agreed to compensate him for delay, this would constitute a new and separate contract. It could not be "demurrage" in a technical sense, because that is a term applied to compensation provided in a marine contract for the detention of a vessel. Taking the word in the sense the parties probably meant, it would only mean a reasonable compensation for the delay, and the amount of such compensation would be a subject for pleading and proof, if, indeed. as stated, it could give rise to any cause of action whatever. But, as the amount erroneously allowed upon this item is certain, we can require it to be remitted, and affirm the judgment as to the balance of the claim Mackey v. Olssen, 12 Or. 429, 8 Pac. 357; Fiore v. Ladd, 29 Or. 528, 46 Pac. 144; Cochran v. Baker, 34 Or. 555, 52 Pac. 520, 56 Pac. 641. [8] It will be ordered, therefore, that if plaintiff shall, within 30 days, expressly remit the sum of $285 from the amount found due in the circuit court, the judgment will be affirmed as to the residue, but that failing to do this, the judgment will be reversed. As defendant has been put to the trouble and expense of an appeal, he will recover his costs in this court in any event. (61 Or. 220) SPANDE v. WESTERN LIFE INDEMNITY CO. (Supreme Court of Oregon. Sept. 26, 1911.) 1. PARTIES (§ 6*)-MUTUAL BENEFIT INSURANCE-ACTION-REAL PARTY IN INTEREST. Where a fraternal benefit insurance certifiwife, plaintiff cannot himself sue thereon withcate provided for payment only to plaintiff's out showing an assignment to him; L. O. L. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No Series & Rep'r Indexes 27, quiring actions to be brought in the name of the real party in interest. [Ed. Note.-For other cases, see Parties, Dec. Dig. § 6.*] 2. FRAUDS, STATUTE OF (§ 23*)-ANSWERING FOR DEBT-AGREEMENTS WITHIN STATUTE. An agreement by a life insurance company to take the insurance of a fraternal benefit company and assume its liability under the policies taken over upon payment of dues, etc., by the members was, as between such members and the life company, a contract to answer for another's debt; and hence the agreement must satisfy the statute of frauds by showing a consideration. [Ed. Note.-For other cases, see Frauds, Statute of, Dec. Dig. § 23.*] 3. EVIDENCE (§ 95*)-BURDEN OF PROOF. The burden is on plaintiff to prove material allegations of a complaint which were traversed by the answer. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 118; Dec. Dig. § 95.*] and hence must be put in evidence to prove the whole contract. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 28.*] Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge. Action by H. A. Larsen Spande against the Western Life Indemnity Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for further proceedings. After alleging the corporate character of the defendant and its authority to conduct the business of life insurance in the state of Oregon, the complaint recites that on August 28, 1888, the Washington Co-Operative Life Insurance Association was organized and doing business within the state of Oregon as a life insurance association on a mutual benefit plan, and states "that on that 4. INSURANCE (§ 92*)-AGENCY-SUFFICIENCY date the said Washington Co-Operative Life OF EVIDENCE-AUTHORITY OF AGENT. Evidence, in an action on a mutual benefit certificate claimed to have been taken over by defendant insurance company after it was issued to plaintiff by a fraternal benefit company, held not to show authority by defendant's manager to contract for defendant to assume the obligation on plaintiff's certificate. [Ed. Note. For other cases, see Insurance, Dec. Dig. 92.*] 5. EVIDENCE (§ 314*)-HEARSAY. A statement that witness "understood that another was manager of a company" was hear say. [Ed. Note.-For other cases. see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*] 6. PRINCIPAL AND AGENT (§ 22*)-PROOF OF AGENCY-PROOF. While an agent is a competent witness to prove his agency, the agency cannot be shown by his letters or his oral declarations. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*] 7. FRAUDS, STATUTE OF (§ 158*)-EVIDENCE SUFFICIENCY-CONSIDERATION. Certain letters to plaintiff by an officer of defendant insurance company, which plaintiff claimed had taken over the business of a fraternal company in which he was insured, held not to show any consideration for defendant's assumption of the fraternal company's obligations, so as to comply with the statute of frauds. [Ed. Note.-For other cases, see Frauds, Statute of, Dec. Dig. § 158.*] 8. INSURANCE (§ 686*)-MUTUAL BENEFIT IN SURANCE REINSURANCE - TERMS OF CON- Plaintiff, in suing on an insurance certificate, and relying on a contract made by defendant for the benefit of himself and other members with the order in which he was originally insured, by which defendant agreed to take over such insurance and assume the obligations thereunder, should put that contract in evidence; a bare reference thereto in letters from defendant put in evidence being insufficient to show the terms of the contract. [Ed. Note. For other cases, see Insurance, Dec. Dig. 686.*] 9. CONTRACTS (§ 28*)-REFERENCE TO OTHER INSTRUMENTS EVIDENCE. An instrument expressly referred to by a contract as containing a part of the stipulations of the parties becomes a part of the contract, Insurance Association, for a good and valuable consideration, executed and delivered to this plaintiff a 20-year endowment and insurance upon the life of this plaintiff, agreeing to pay plaintiff, should he live 20 years and pay his assessments, the sum of $2,000, or, if he should die before the expiration of said 20 years, to pay his beneficiary, plaintiff's wife, the sum of $2,000." According to the complaint, about September 10, 1898, the Washington association above named was reorganized under the name of the Order of Washington, and on September 20, 1904, with the consent of the plaintiff, the Order of Washington took up the original certificate of insurance issued to him by the Washington Co-Operative Life Insurance Association, and instead thereof issued to him another benefit certificate of life insurance and 20-year endowment, in words and figures following, to wit: "Issued in lieu of Washington Co-Operative Life Insurance Association certificate number 245, dated August 28, 1888. No. 245. Life expectancy. 20 years. Age 30 years. Monthly payment $1.60. Certificate of Membership Issued by the Supreme Union, the Order of Washington, Portland, Oregon. Twentieth Century Endowment Department. This certifies, that H. A. Larsen Spande has been accepted and admitted as a member of Home Union No. 1, located at Portland, state of Oregon, and that in accordance with, and under the provisions of the laws of the order, he is entitled to all the rights, benefits, and privileges of membership therein, and the Order of Washington agrees that after the maturity of this certificate of membership, occasioned by the death of the member, or otherwise, one assessment on the life bene fit membership collected for said fund not exceeding in amount the sum of two thousand dollars will be paid as a benefit to Emily Weokoline Larsen Spande bearing relationship of wife, which sum shall, after the sur For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |