Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-12
Chauncey v. WOllenberg,
Douglas County.

II. MOllenDerg, eJ al, respondents.
Appeal from the circuit court for
Douglas county. Hon. George II.
Burnett, Judge. Argued and submit
ted April 6, 1911. C. S. Jackson, r.
G. Smith and R. T. Harding, for ap-
pellant. Dexter Rice, A. N. Orcutt
and w. d. Fenton, for respondents.
Moore, ]. Affirmed.
This is a suit to partition land.
The facts are that pursuant to an
act of congress the United States
granted to Aaron Rose and to his
heirs the north half of a donation
land claim in Douglas county and to
his wife, Sarah Rose, and to her
heirs the south half thereof. Mrs.
Rose died December Is, 1866, seized
of the land so granted to her except
such parts thereof as she and her
husband had conveyed, which tracts
are not involved herein. At her
death she left surviving, her hus-
band, four brothers and six nephews
and a niece, the issue of a deceased
brother. After her death Aaron Rose
continued in possession of the re-
naming part Of the south half of the
donation land claim and secured
from her four brothers and from all
the children of her deceased brother
except Chaplin Chauncey and the
plaintiff, George H. Chauncey, deeds
conveying to him their respective in
terests in the premises. The greater
part of this land was laid out and
plated by Mr. Rose as Roseburg and
its additions, and lots, blocks and
certain unsurveyed tracts therein
were sold and conveyed by him. He
died March 1, 1899, and his estate
having been settled, all the remain
ing land of which Mrs Rose had
died seized was sold and conveyed by
her husbands administrator. Chap
in Chauncey died and the plaintiff, as
serting in his own right and as heir
Of and by conveyance of the other
heirs of such brother two thirty
fifths of the land of which his aunt
had died seized, commenced this suit
February 23, 1909, making the own
ers of the separate parcels so con-
veyed parties defendant. An amend
ed complaint was filed October IL,
1909, alleging in effect that the
plaintiff and the several defendants
are owners in fee and in possession
In question; that Sarah Rose died
seized thereof, leaving as her sole
heirs the persons hereinbefore re-
ferred to; that at her death the real
property became subject to Aaron
Roses life estate which terminated
March /, 1S99 whereupon the re-
mainder in fee passed to him and to
his brother, Chaplin; that the land
had been divided into many small
tracts and is now owned in fee by
the several defendants in common
with the plaintiff; that their respec-
tive interests therein, so far as
known, are thirty-three thirty-fifths,
while he is the owner in fee of an
undivided two thirty-fifths. The
name of each defendant is then given
with a particular description of the
parcel of land conveyed to him.
The answer of j. w. Perkins, which
Is a pattern of all the other answers
except as to description of the tract
involved in each pleading, denies the
material allegations of the complaint
and alleges in substance that such
defendant is the owner of certain
land and that he and his predeces-
sors in interest for more than 10
years prior to the commencement of
this suit had been in the continuous,
open, notorious, exclusive, hostile and
adverse possession of the premises
described, claiming to be the owner
thereof in fee under deeds conveying
an absolute title.
Replies having put in issue the al
legations Of new matter in the sew
eral answers the cause was tried, re-
sulting in a decree dismissing the
suit and the plaintiff appeals.
Moore, j. The trial court found in
effect that Immediately after the
death of his wife, Aaron Rose took
possession of all the property of
which she died seized, claiming and
intending to hold the premises ex-
cluslvely as his own, ousting and ex-
Guiding all persons therefrom, in
cluding plaintiff; that he conveyed
lots, blocks, ETC., by deeds purporting
to grant a fee simple title in sever
atty to the grantees, who thereafter
maintained exclusive and adverse
possession thereof for a period of
more than 10 years prior to the COM
mencement of this suit and that
plaintiff never had possession of any
part of the land.
The law of descent in force when
Mrs. Rose died contained clause as
follows: "If the intestate shall leave
no lineal descendants, such real
property shall descend to his wife,
and II the intestate have no wife;
then such real property shall de-
scend to his father" Gen. Laws Or
as compiled by NJ P. Deadly, p. 67S.
It Is maintained by defendants coun-
sci that the word "wife" in the enact
ment quoted is used in a generic
sense and sufficiently comprehensive
to include either spouse and, such
being the case, at the death of Sarah
Rose the real property in question
descended to her husband thereby
excluding plaintiff from participating
In the distribution OF her estate. The
question thus suggested will not be
determined, but the proposition Is
noted to show that Aaron Rose and
his grantees of the property might
reasonably have so interpreted the
statute and that such conclusion
could have formed the basis of valid
claims of title sufficient to establish
right by adverse possession.
The testimony shows that neither |
Chaplin Chauncey nor the plaintiff |
were heard from by their relatives
for about 10 years and, probably in |
Voking the presumption that they |
were dead, H. o. L. sec 799, sub. 26) |