a public road or street, and 'by purchase from those to whom it belongs. Its license is to lay: ,8. track on the grade, of the streets as they are or. may be, so that it will not materially interfere with their use for the purposes of ordina.rytravel. The erection of awarehQuse or a roundhouse upon this ground would not more materially interfere withlthis.use than the. trestle-work and waiting-house which the dElfendant is engaged in co:qstructing·. Upon this.view:of the matter It provisional injunction must issue. Therefore it is unMe.eflsQ,ry tO'decide whether the defendant can be authorized by theco-untycoul't to appropriate a public or street for the construction:8ind:operation of a, railway without compensation tO the. o.wners of· the adjacellJf;, property for ,the new and additional burden thus imposed on the land. The.que13tion,'h(i,s; beEl:nthoroughly argued by counsel and I have a decided impression upon it. But it is one upon which I prefer not to ,the decision of the court of the state if I can avoid there is Eluggestion whi?h may. not be amiss ..here,and,thatiill,' that the p;ro;vision oithe corporation act, authorizing the,;ooimtyoourt to allow tbe use of a "public road or street" for "thaloeationand construction "of It railway or other road, only applies to .. rO/td or,' street legally established according to sottle mode not toone that exists merely as a offact.·a.nd by sufferance of the owner of the proper.ty., or by mere parohladicatioI;l. .or .. Let the prQvisional injunction on the plltintiff's giving bond, to the approval of the master of this court, in the sum of $10,000, restraining 'as, prayed for in the bill until the finding or further order of this court.
TRAVER and others v. BAKER.
(Oircuit Oourt, D. Oregon. February 16, 1888.)
1. PARTITION OJ' LANDS.
'A partition :of a tract of land, by a judicial decree, between part owners of the tract, does not challgethe character or origin of the title of any of the parties, but the portion which each takes in severalty under the decree is, in contemplation 0'[ law, the very portion which belonged to him as tenant in common, liiidhe holds' it thereafter ·under the same title and subject to the same obligations, covenan.ts, and contI'acts as before.
A quitclaim deed to a " piece or parcel of land,". it,onlyoperatea as a conveyance to pass the grantor's present interest therein ; lIut ihuch de¢ also contain a covenant warranting the" pOBBessiou ,1 of sa\d land agai,nstany claim" by " or "through" the grantor, it will estop him and' heirs and subsequent grantees from maintaining any; Buit to effect such
A rlonveyance made ;in 1861, not'recorded within 30 days fiomits tion, is void as against a subsequent coirveyance, first recoredi to a purchaser in good faith and for a valuable consj,deration.
Suit for , George H. Willia,11!'s and George H. Durham, for plaititlffs. Benton Killin, for defendant. DEADY, J. This suit is brought by the plaintiffs, GeorgeW. and' Emma S. Traver, citizens of the state of California, ,and George A.and Ida M. Graham, citizens oIthe state of Ohio; for the partitionof lots 1 and 2 of block 256, of the city of Portland. The suit was commenced on October 16, 1819, and the case heard on the amended bill, answer thereto, and replication, together with the exhibits and testImony. The principal questions in the case are questions of law, and, the facts material to their determination are oubstahtially admitted. On Februarv 22, 1861, Daniel H. Lownsdale executed a deed to John R. Wiikinson for the three-fourths of block 2.56 of thtHlity of dePortland, the same being lots 1, 2, 3, 4, 5, and 6 of soribing the premises therein by metes and bounds ooinoident with the bordering lines of the adjaoent streets, and the, east and south of lots 7 and 8, lines of the north-west oorner of the blook, then, as appears from the deed, in the possession "Mrs. Adaline Wilkinson," which deed was aoknowledged and filed for reoord .on March 11, 1861. The operative words of this deed are contained in this clause: "The party of the first part, in'and for the consideration of $600 to him in hand paid by the party of the seoond part, has bargained and sold, and by these presents does bargain, sell, release, convey, and quitolaim, unto the party of the seoond part all that piece or paroel of land situate within the oorporate limits of the city of Portland," and desoribed as above. After the habendum, "to the use and benefit of the party of the seoond part, his heirs and assigns, forever," the deed prooeeds:
"The party of the first part covenants to and with the party of the part that he will warrant and defend the party of the second part intbe possession of the same, against all claims against the same, either througla or by the party of the first part; and that said landis parcel of the claim of land awarded to the party of the first part, and as affirmed to him by the secretary
of the interior of the United states on the thirteenth of July, 1860, and ordered patent to issue to the paliy of the first part; and that if patent issue to the party of the first part, this shall be his deed to the party of the second part, in general warranty."
It is ad Il1it'ted that the defendant has succeeded, by a regular ilhain of conveyances, to the of Wilkinson, under this deed,to·lotB 1. and 2 of block 256. Prior to and at the passage of the donation act, on September 27, 1850, (9 St. 497,) the grantor in this deed was a married man, and an qf.a portion of the public domain, under the laws of the provisiomil ;government of Oregon, regulating the possession thereof, including block 256, and thereafter became a settler thereon under ;and having complied with the requirements of the section 4 act and ma96 proof to the satisfaction of the surveyor general of Oregon, as provided in'section 7 ;of the same, on 17, 1860, he received a certificate for the donation, in and by which the east half thereof was set apart to himself, and the west half, including said block 256, to his wife, Nancy, who had died on April 15, 1854, leaving her husband and four children surviving her, who thereupon, under, said section 4. took said west half of the donation in equal parts, as the donees of the United States. OnJanuary 17, 1860, Lownsdale purchased the interest of Isabella E. G:il1ihan, a daughter of Nancy by a former husband, in the donation,and on Fel;Jruary 14th of the sa.me year conveyed an undivided two-fifths of said interest to Hannah M. Smith, but, the deed to her was not recorded until Februa.ry 12, 1862. On May 4, 1862, Lownsdale died, leaving four children, aud the plaintiffs S. Tra,ver a.nd Ida M. Graham, the children of a deceased daughter; a.nd on June 6, 1865, a patent to the donatiou wao; issued by the United to the heirs of said Lownsdale and Nancy, dividing the same between them as provided in the certificate. On April 28. 1864, William T. Gillihan, a son of Nancy by a former husband, brought a suit in the state circuit court for partition of the west half of the donation, in which the other children of Nancy a.nd the heirs of Lownsdale, together with many other persons claiming divers blocks and lots therein as the vendees of Lownsdale, includingJa.cob Gazette, under whom the defendant claims, were made defendants, and on May 22 a.nd August 12, 1865, said court determined. that Lownsdale, as the survivor of Nancy and the grantee of Isabella E., was the owner in his life-time of an undivided twofifths of the west half of the donation, and that said William T. Gil-
TRAVER V· .BAKER.
lihan and Millard O. and Ruth A. Lownsdale, 'her children py said Dahiel H., were then each the' owner, of an undivided one-fifth of sai4 half; arid set apart and allotted to said three ohildren, in severalty, certainportiOJis thereof, and the remainder to the heirs, vendees, or claimants under Lownsdale according to their respective interests, without determining what they were; and because said partition was . unequal, it was further provided that the ehildren of Nancy shouJd be pa:idthe sum of $39,156.02, to be apportioned among the parcels of IB\ndsst apart to 'the heira, vendees, or and to be alien thereon, sum $475.37 was assessed upon lots 1, 2, and 3 of said block 256, andtherea.fter .duly paid by said Jacob Gozette.. On February 23, 1869, James P.O., a son of Lownsdale by a former wife, purchased from Hannah M. Smith the interest formerly conveyed tohel'by Lownsdale, and afterwards and before the cOInmencementof,this suit said James P. O. and all the heirs of dale,except the plaintiffs Emma S. and lao. M., ol!>nveyed their interes-tsin the premises to the plaintiff George. W. TraV'er. . The defendant claims that the covenant ,in·the deed Qf Lownsdale to Wilkinson is a 'warranty of "all that piece or parcel of land" described in the deed, in effect, as three-fourths of blook 256, against all ,persons claiming the same "through or by" the and therefore the plaintiffs, who: claim through him as his h/3irs, are' estc1pped to claitil any interest in· the premises, thesamea,sLownsdale would be if H'ving. The plaintiffs deny that the covenant in the deed relates to orate fects any interest in the premises except what Lownsdale then bad -the Qne-fifth he took i as the survivor of his wife, Nancy, and the three-fifths of the fifth he purchased of Isabella E. and did not convey to Smith; and further, that the legal oMration of the partition was to effect an exchange of distinct parcels of land between t4e heirs of Lownsdale and the;children of Nancy, and that the former thereby took three-fifths ·of block 256, as purchased from said children, and not by descent from Lownsdale, and therefore they are not bound by his covenant or contract'in relation thereto, and also that they have since become the owners by purchase from Smith of the two twenty-fifths sold to her by Lownsdale prior to his oonveyance and covenant to Wilkinson, and therefore they are entitled to. seventeen twenty-fifths Of the. premises and the defendants to the remaininterel:lt owned by Lownsdale at the date of his conveyance to Wilkinson.
FWlnB:A.L . REP,ORTER.
In the cBs£i'o'f' Fitld$ vi Squires, 1 by this partition the land was dividedrbetweenthechildren: of N.ancy on the one hand and the heirs and vendees,of Lownsdaleou; the other, according to'the respeotive interests of :the latter I withont attempting to determine what they were, giving to ,the in land and owelty what :was deemed the equivalent oLthree·fifths of. the premises;and to the heirs'and vendees inland charged with the payment of this owelty what was:deemed !the equivalent to tWQ:4ifths ·of the same, and lam still 'satisfied with the ruling. . And in Dat!lJnport v. Lamb, 18 Wall. 428, thIS view of the matter is taken and stated by Mr. Justice FIELD as a matter of .course. This partition was not an exchange of distinct parcels of land owned in entirety by either party, but a separation of undivide.;l. interests in a tract theretofore owned by the parties in common·. The portions' or parcels then ascertained. and set apart in severalty to the children of Nancy, were, in contemplation of law, the very three-fifths which they took'fronl·the United States under the donation act, after the death of their mother, and in like contemplation the remaining two-fifths were the very'portion of the premises which the heirs of Lownsdale inherited from him, subject, however,to the legal effect of the acts done and suffered by him concerning the same. Neither was the character or origin of the estate or title of the parties changed Or ::tffected by this dedree-and partition. by descent from The heirs of Lownsdale took the two-fifth him, as his heirs, and as such were and are so far bound by his acts and conduct relating to the same as he would be himself, if living. The rights of the parties in the premises must be determined, then, by the operation and effect of the deed to Wilkinson. The operative words in the premises of this instrument are "bargain, sell, release, convey, and quitclaim;" and, so far, it is only in legal effect a quitclaim deed,-one in which no covenant was 'implied,-and only served to pass the present interest of the maker. Lamb v. Kamm, 1 Sawy. 240; 2 Washb. Real Prop. 605-7. But it purports to be not only a. quitclaim of all Lownsdale's right, title, and interest in the premises, whatever that might be, but of "all that piece or parcel of land" situated and bounded as therein stated. , The subsequent undertakings or agreements in the deed, while they cannot enlarge the effect of the granting clause, must be construed as referring to the subject-matter of the sale and quitclaim as therein stated; that is, a certain "piece or parcel of land." These undertakings, though in some respects awkwardly and obscurely
"dra.Wl1; diiisiblEiCinto ,tl:ireeoovEin:a..tits; .whlchrmay De substantially, 's;tated ,.a.sifollows:: (1) That LGwnsdalewi!1l defend "the pOBsession",ofthadi "piece or parceloUand".to':Wilkinson, his heirs or assigns, against aU iclaims made "throngh vrby1' himself; ',(2)· that '''saidlqmr' was a part of the claim/that hadl been awarded toLowllBda.leanti!'·'affirmed;'" by the secretary of the interior on'July (Hroated to beissue:dito him; and (3) that if such patent did issue to Lownsdale, the ideedthen made to Wilkinson shoulddje contiidered 81s"oJ1&with a generaJ. warranty of. the premlses io the' grantee.,,· ,: i '" Thecontingeney'contemplated ,bytl1e laat covenant" only aroseros to theona.ftfth 1antel:est whioh: LbWns,d,ale toO'k iIi the west h'alf,'I(I}f the donation as the survivor of his wife.:"Fhrihis. a patent was -issued to him aff.ethi$ death,. whieh iilUred·to his ,heirs, alld"it ill: admittedthaUhe deed toWi:lkitisonhad :the effect to divest him of!tnat interest, and :tha.t·the slimeis:.lnowiil the defendant. The ,'s6cofta eO'Venant was a personal one, having no prospective opera.tion like,a :oo'v.enant: of seizen, and did n'o1l:: run with ,the land;Thl3 first one, so far as iltilrelates tOi"a clitim mad-e 'by Lowngdale himself, :isi a ,merepersanal covEmant:lmnon-cla.i1l1,. a;iId would not estop any ;one: but, himself; r Bht: 80 farialiLitrelates :to,a' claro: made "through" ;himself, itwiU estop any oLhUi heirs or subsequent grantees from 'claiming-the possession of any; interestbrestatein the premises which the deed to convey. Whatever right or interest the plaintiffs claim' in 'thissttit-ex:cept the two twenty·fifths "pnrchasedby James: P.: O. from Smith-they must claim ";through" Daniel'H: L6wnsdale or ,his 'heirs, and thillt brillRS them within the ex:prass wOlids of the covenant,so far as' the deed purports to affect the premises.:, And, as we have seen, it purquitclaim the "land"-the whole estate ()r ·interest ports to sell therein-withdut any qualification Or reservation, and not of· any partial, limited, or uncertain right or in the same. , , The covenant of warranty is as broad as the subject-matter of the conveyance,andtherefore estops the plaintiffs from maintaining any .' suit for, the possession of any portion of or interest in the same, ae. quired through LOwDsdale.. That it,w8JS the 'intention of Lowrlsdale to sell and convey to kinson not only his then undivided interest in the "land,". but also all that he might afterwama'aequire therein, and partieularly by parismaliiifestfrom the fact that .he warrantedWilkinson:in the posseesi<m of the same, as against himseli
and all persons For, if it was only intended to pass the interest which Lownsdale then had in the premises, be that much· or little, the covenant of warranty was a useless and senseless act. 2 Washb. Real Prop. 665· . And I think that the price paid for theproperty-$600 for six. lots 50x.100 feet each, in the woods, in 1861.;......indicates that the sale was, as it purported to be, of the "land;" and not an undivided two-fifths interest 'therein. Three casesha.ve been cited from the decisions of this court to show that the covenant of warranty in this deed does not affect any interest in the premises but that which Lownsdale then had. They are Lamb .v. Burbank,1 Bawy. 282; Lamb v. Kamm, ld. 288; and Lamb v.Wakefield, Id. 257. In: the first of these cases it may be said that the deed-a quitclaim, of March 8, 1850-purPorted to convey the land-"lot 4 in block 7." But the court held thatdihis only passed the estate which Lownsdale than had in the premises-the bare possession under the laws of the provisional government. In coming to this conclusion, weight was probably given to the fact that aU parties knew they were simply dealing with the possession, and to the further fact that the deed contained a covenant that jf Lownsdale obtained title. from the United States he would convey :the ,Bame. The case was heard upon a demurrer to the bill alleging that the deed was fraudulent and void, and a cloud on the plaintiff's title, who. claimed the property as beir of Lownsdale. What was said upon this point ma.y be considere.das obiter, as the defendant could protect himself under the covenant to convey, if the deed was valid. The other two cases are not in point. The deeds in both of them only purported to pass all "the right" title, and interest" of Lownsdale in the premises. As to the two twenty-fifths interest purchased by James P. O. from Smith On February 28, 1869, for $1,050, the plaintiffs are not prevented. by Lownsdale's covenants to Wilkinson from claiming the same. Lownsdale had this interest to Smith a year and eight days before he made the deed to Wilkinson, and neither she nor her grantee are in this respect affected by any subsequent sale or covenant of Lownsdale. But it is alleged in the answer that the deed ,to Smith is void as against Wilkinson, because it was not recorded ·until after March 11, 1861. By section 27 of the act relating: to conveyances, then in force in Oregon, (Code of 1804-5, p. 522,) it is provided that a deed not recorded within 80 days from its execution "shall be void against any
sUbsequent purchaser in good faith and for a valuable consideration" of the same property, whose oonveyanoe shall be first reoorded. It does not appear from the answer but that Smith's deed was reoorded within 30 days from' its exeoution. It is only alleged that it was not reoorded until after Maroh 11th, which may be true, although it was reoorded within 26 days from its exeoution. Nor is it alleged in the bill that it was ever recorded. But the plaintiffs have put the deed in evidenoe, and it appears therefrom that it was not reoorded until February 12, 1862. No question is made but that Wilkinson waS a· purchaser in good faith and for a valuable consideration. Smith's deed was reoorded after Wilkinson's and more than 30 days after its exeoution, and therefore the statute postpones it-deolares it void as against Wilkinson's. The plaintiffs, as to this interest, now claim under this void deed against a grantee under Wilkinson, and,their right is the same as if the Buit was brought by Smith against Wilkinson. The plaintiffs not having any interest in the premises which they can assert in this court against the covenant of their ancestor and grantor, the bill for is dismissed.
ROGERS t1. MARSHALL.-
(lA'rC1dt Court, D. Colorado.
PRAOTICE-REHEAJUNG, EFFECT OF.
, When a rehearing is granted for the reason that the court, upon the ings and proofs as they stood at the hearing, is inclined to doubt the correctness of the decree, it is the proper practice to set aside such decree until the case is again heard. It would he otherwise if rehearing WitS granted in order to allow additional proof. In the latter case, the decree should stand, pending the :ehearing.
On motion to vacate order setting aside interlooutory decree, and permitting defendants to file further answers. MCCRARY, J. This case was heard at the October term, 1881,+ upon final proofs, and, as the result of that hearing, an interlooutory decree was entered, setting aside a conveyance from complainant to respondent, James Y. Marshall, of certain mining property, and referring the oase to a master to take proofs respecting profits
*From the Colorado Law Reporter.
tSee 13 FED. REP. 59.