Holbrook v. Page

3 Or. 374

• Court: Multnomah County Circuit Court, Oregon
• Decided: November 15, 1871
• Status: Published

Opinion

By the Court.

The first branch of this motion should be granted. The matter pleaded is vague and indefinite. It assumes that there has been some original laying out, platting and selling which is material, and it states a conclusion based upon that assumption; but it is indefinite and states nothing that is material as to the time of the plaintiff’s possession. It presents a conclusion, and not a issuable fact.

The second matter alluded to is wholly redundant. It is not necessary in an answer to expressly admit any part of the complaint. If this were a direct admission it would be surplusage, but it neither admits or denies directly any material allegation nor presents anything upon which an issue can be formed. °

As to the defense last specified in the motion,, the only part upon which I think there can be any question is that which sets up a mutual agreement settling the boundary. A contract of that kind, duly made, would be a good defense, and might well be set up by answer, unless the setting it up specifically is unnecessary, on the ground that the defendant could give it in evidence under the allegation that he is owner in fee.

If there is any doubt upon the question whether such an agreement adjusting a controverted boundary, ought to be specially plead, the doubt is a sufficient reason for refusing to strike out. If a part of that which is included in this branch of the motion ought to be retained, the whole that is included in this part of the motion must also be retained.

The first and second propositions, of the motion will be granted, and the third branch overruled.