Opinion
Per Curiam.
1. Whether the allegations of the complaint and the reply are so inconsistent as to amount to a variance is unimportant. A statement of matter in a reply, set forth as a cause of suit, which averments do not amplify, support or fortify the allegations of the complaint, cannot be so prejudicial in a suit in equity, .where the issues are tried by the court, as in an action at law, where the disputed questions to which the par[99]*99ties have narrowed their several averments'are to he tried by a jury: Brown v. Baker, 39 Or. 66 (65 Pac. 799, 66 Pac. 193). No showing was made at the trial that the defendants were misled by the statement of facts in the reply that were not set ont in the-complaint. The action of the court in denying the motion to strike out parts of the reply, and in overruling the demurrer to a portion of that pleading, will not be reviewed.
2-4. Although the reply seems to recognize the defendant J. J. Whitney as holding the legal title to the south half of the donation land claim in trust for the plaintiff, she undoubtedly had such ah estate in the premises, as will be hereinafter stated, as to enable her to enjoin a trespass upon the land and to have an alleged adverse claim of title determined. A careful examination of the evidence shows that the defendant J. J. Whitney as the plaintiff’s attorney advised her as to what she should do in order to protect her adverse possession of the land against the claims- of the state. Thus in a letter which he wrote her April 14, 1903, he says: •
“Your favor of the 13th inst. at hand and contents noted. There is nothing we can do, except you want, to hold possession and see that whoever purchases said premises are kept out of possession, which will fóice them to bring suit of ejectment against.you.”
In a letter written to the plaintiff February 10,1901, he stated:
“You are relying on holding under the statute of limitations, and all you have to do is to watch yourself and the land and be sure and keep possession, and if you do as I have directed you there will be no trouble about your retaining possession. If I find out at any time that there is a move on foot to your disadvantage* I will notify you.” .
[100]*100January 9, 1907, lie wrote her as follows:
“I was in Salem yesterday, and whilst there I had a talk with Crawford, the Attorney General, also with Mr. West, the clerk of the state land board, with regard to the land that is in dispute between you and the school fund. Crawford had before him a partial abstract furnished to him by Weatherford & Wyatt, under which they claim title to the land under a sheriff’s deed made by C. C. Jackson to the school board. I have thought the matter over as close as I could, and I have come to this conclusion that the best way for us to proceed is for you to make me a quitclaim deed for the land sold by Sheriff Jackson to the school board. I am of the opinion that, if I have such a deed from you, I can take the deed, and go before the land board,, and make a deal with them by which I can get them to relinquish their rights. If I can do that, that will straighten the title so far as the school board is concerned. Then after th'at we can get the matter settled between the heirs of Andrew Wiley and yourself. By so doing the land will be in a condition by which you can sell it and a good title can be made. I can pis-pare the quitclaim from the description in the sheriff’s deed. • I am of the opinion that this is the cheapest and best plan that I can think of to straighten up that title. Please let me hear from you at your earliest convenience and oblige.”
He sent her a letter January 30,1907, saying:
“I wrote you some time since in relation to the unsettled condition of the title of 160 acres of your home place, and in that letter I suggested to you that it might be well for you to give me a quitclaim deed of your right in that 160 acres. My only object in that was to arm myself in such a way that I could deal directly with the school board. Since writing that letter they have ordered an abstract made of your ranch for the purpose of testing what rights you have in that piece of land. I am going to Salem in a few days for the purpose of appearing before the board on some other business, and while I am there this matter of [101]*101yours will come up, and I want to say to the board that I will represent you in any shape that they see fit to attempt to oust you of your rights. I don’t care for the deed. I simply want the authority to represent you in the matter. I remember very well what our talk was concerning your writing to each one of the heirs for the purpose of your securing a quitclaim deed from them. "We may have to act in this matter before you could possibly secure quitclaim deeds from the Andrew Wiley heirs. I want to prevent if I can the board doing anything that would be detrimental to your interests or to the interests to the Wiley heirs. If you want me to look after your interests before the board, and if you will write me to that effect, I will watch the matter for you, and if there is anything to be done I will look after it promptly. I would like to know what you will quitclaim your interest in the 160 acres of land that was sold to the school board a good many years ago. I simply refer to your interests, and not to the interests of the school board or the interests of the Wiley heirs. If I bought your interests, I would expect to have to buy the interests of the Andrew Wiley heirs in said land, and I would also have to settle with the school board for every right they have in said land. Please let me hear from you at your earliest convenience and oblige.”
On the 18th of June, 1907, in a letter which he wrote the plaintiff he said in part:
“I was in Salem yesterday. I saw the Governor, and he showed me a written opinion from A. M. Crawford, the Attorney General, which gave the history of the title of the land claimed by the school board that belonged to the Wiley estate. * * I informed the Governor that I would represent you in said litigation and we would claim the land under adverse possession. ’ ’
When the plaintiff and her attorney agreed that he should obtain from the state a relinquishment, he wrote and she signed a memorandum which reads:
[102]*102“Foster, Oregon, Sept. 16, 1907.
“It is hereby understood and agreed by and between Mrs. Elizabeth Wiley and J. J. Whitney that in the event the said J. J. Whitney settles with the state land board and pays said board in full for the south half of the D. L. C. of Andrew Wiley and Lucy Wiley, his wife, the same being notification No. 7630, and claim No. 50, Tp. 13 S., B. 1 east, and claim No. 43, that in that event I promise and agree to pay the said J. J. Whitney the amount of money he pays said board, principal and interest, and the expenses of making said settlement, on or before the 1st day of January, A. D. 1908, and in the event I fail to pay the said J. J. Whitney, as above stated, then in that event I do hereby promise and agree to surrender all right or rights I have to the aforesaid land and premises to the said J. J. Whitney. Elizabeth Wiley. ”
September 27, 1907, the defendant again wrote the plaintiff as follows:
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Opinion
Per Curiam.
1. Whether the allegations of the complaint and the reply are so inconsistent as to amount to a variance is unimportant. A statement of matter in a reply, set forth as a cause of suit, which averments do not amplify, support or fortify the allegations of the complaint, cannot be so prejudicial in a suit in equity, .where the issues are tried by the court, as in an action at law, where the disputed questions to which the par[99]*99ties have narrowed their several averments'are to he tried by a jury: Brown v. Baker, 39 Or. 66 (65 Pac. 799, 66 Pac. 193). No showing was made at the trial that the defendants were misled by the statement of facts in the reply that were not set ont in the-complaint. The action of the court in denying the motion to strike out parts of the reply, and in overruling the demurrer to a portion of that pleading, will not be reviewed.
2-4. Although the reply seems to recognize the defendant J. J. Whitney as holding the legal title to the south half of the donation land claim in trust for the plaintiff, she undoubtedly had such ah estate in the premises, as will be hereinafter stated, as to enable her to enjoin a trespass upon the land and to have an alleged adverse claim of title determined. A careful examination of the evidence shows that the defendant J. J. Whitney as the plaintiff’s attorney advised her as to what she should do in order to protect her adverse possession of the land against the claims- of the state. Thus in a letter which he wrote her April 14, 1903, he says: •
“Your favor of the 13th inst. at hand and contents noted. There is nothing we can do, except you want, to hold possession and see that whoever purchases said premises are kept out of possession, which will fóice them to bring suit of ejectment against.you.”
In a letter written to the plaintiff February 10,1901, he stated:
“You are relying on holding under the statute of limitations, and all you have to do is to watch yourself and the land and be sure and keep possession, and if you do as I have directed you there will be no trouble about your retaining possession. If I find out at any time that there is a move on foot to your disadvantage* I will notify you.” .
[100]*100January 9, 1907, lie wrote her as follows:
“I was in Salem yesterday, and whilst there I had a talk with Crawford, the Attorney General, also with Mr. West, the clerk of the state land board, with regard to the land that is in dispute between you and the school fund. Crawford had before him a partial abstract furnished to him by Weatherford & Wyatt, under which they claim title to the land under a sheriff’s deed made by C. C. Jackson to the school board. I have thought the matter over as close as I could, and I have come to this conclusion that the best way for us to proceed is for you to make me a quitclaim deed for the land sold by Sheriff Jackson to the school board. I am of the opinion that, if I have such a deed from you, I can take the deed, and go before the land board,, and make a deal with them by which I can get them to relinquish their rights. If I can do that, that will straighten the title so far as the school board is concerned. Then after th'at we can get the matter settled between the heirs of Andrew Wiley and yourself. By so doing the land will be in a condition by which you can sell it and a good title can be made. I can pis-pare the quitclaim from the description in the sheriff’s deed. • I am of the opinion that this is the cheapest and best plan that I can think of to straighten up that title. Please let me hear from you at your earliest convenience and oblige.”
He sent her a letter January 30,1907, saying:
“I wrote you some time since in relation to the unsettled condition of the title of 160 acres of your home place, and in that letter I suggested to you that it might be well for you to give me a quitclaim deed of your right in that 160 acres. My only object in that was to arm myself in such a way that I could deal directly with the school board. Since writing that letter they have ordered an abstract made of your ranch for the purpose of testing what rights you have in that piece of land. I am going to Salem in a few days for the purpose of appearing before the board on some other business, and while I am there this matter of [101]*101yours will come up, and I want to say to the board that I will represent you in any shape that they see fit to attempt to oust you of your rights. I don’t care for the deed. I simply want the authority to represent you in the matter. I remember very well what our talk was concerning your writing to each one of the heirs for the purpose of your securing a quitclaim deed from them. "We may have to act in this matter before you could possibly secure quitclaim deeds from the Andrew Wiley heirs. I want to prevent if I can the board doing anything that would be detrimental to your interests or to the interests to the Wiley heirs. If you want me to look after your interests before the board, and if you will write me to that effect, I will watch the matter for you, and if there is anything to be done I will look after it promptly. I would like to know what you will quitclaim your interest in the 160 acres of land that was sold to the school board a good many years ago. I simply refer to your interests, and not to the interests of the school board or the interests of the Wiley heirs. If I bought your interests, I would expect to have to buy the interests of the Andrew Wiley heirs in said land, and I would also have to settle with the school board for every right they have in said land. Please let me hear from you at your earliest convenience and oblige.”
On the 18th of June, 1907, in a letter which he wrote the plaintiff he said in part:
“I was in Salem yesterday. I saw the Governor, and he showed me a written opinion from A. M. Crawford, the Attorney General, which gave the history of the title of the land claimed by the school board that belonged to the Wiley estate. * * I informed the Governor that I would represent you in said litigation and we would claim the land under adverse possession. ’ ’
When the plaintiff and her attorney agreed that he should obtain from the state a relinquishment, he wrote and she signed a memorandum which reads:
[102]*102“Foster, Oregon, Sept. 16, 1907.
“It is hereby understood and agreed by and between Mrs. Elizabeth Wiley and J. J. Whitney that in the event the said J. J. Whitney settles with the state land board and pays said board in full for the south half of the D. L. C. of Andrew Wiley and Lucy Wiley, his wife, the same being notification No. 7630, and claim No. 50, Tp. 13 S., B. 1 east, and claim No. 43, that in that event I promise and agree to pay the said J. J. Whitney the amount of money he pays said board, principal and interest, and the expenses of making said settlement, on or before the 1st day of January, A. D. 1908, and in the event I fail to pay the said J. J. Whitney, as above stated, then in that event I do hereby promise and agree to surrender all right or rights I have to the aforesaid land and premises to the said J. J. Whitney. Elizabeth Wiley. ”
September 27, 1907, the defendant again wrote the plaintiff as follows:
’ “I have seen and talked with the state land board and I think I can settle with said board in a satisfactory manner. I have notified said board that I would be in Salem on next Wednesday for the purpose of settling said matter. If I get the business straightened up at that time, it will save the state board the necessity of bringing a. suit to recover said land.”
He wrote her November 10, 1907, saying:
“I settled with the school board for the south half of the D. L. C. of Andrew Wiley and wife, and I took a deed from them for said land. I have made a copy of the map made by the abstractors of the D. L. C. of Andrew Wiley and wife. Inclosed please find the same. You will see from the map how the land is divided. Now, I think that the long narrow strip ought to go with the land I bought of the school board. At least it would put both tracts of land in better shape, provided the ranch is divided. Now I am willing to sell out my interests in said ranch to you, or if we can agree I am willing to buy of you that long nar[103]*103row strip, or if you desire, and we can agree, I am willing to buy the balance of your land which is 160.875 acres. Please let me bear from you, and let we know what you will take for the whole tract of 160.875, or what you will take for the 40.875 acres of land. The strip is about 25 rods wide, and I have been so very busy that it was difficult for me to get time to write to you before. Please let me hear from you and oblige.”
December 20,1907, in another letter to her he states:
“Tour favor of recent date at hand and contents noted. I am of the opinion that the best way for you and I is to have our land surveyed. We will then be able to know exactly what each one of us have got. After that is done I will fix a price on my land, and you can if you desire fix a price on yours. I am willing to buy or sell, and I am not particular about that.”
The mortgage, it will be recalled, undertook to create a lien upon the undivided half of the entire donar tion land claim. The United States patent, which was issued after the mortgage was given, granted the north half of the claim to the heirs of Lucy Wiley. Therefore, the lien attached only to the undivided half of the south half of the claim. That was the estate conveyed by the sheriff under the decree of foreclosure, and it was also the measure of the interest granted by the State of Oregon to the defendant J. J. Whitney. Though the plaintiff joined her husband in executing the mortgage, she, upon his death, became vested with a dower estate in an undivided half of the south half of the claim, notwithstanding the decree of foreclosure. The evidence also, shows that the plaintiff secured deed from heirs of Andrew Wiley, conveying to her at the times stated all their estate in the entire donation land claim, viz.: Robert Wiley, a son, December 2, 1882; Susan Davidson, a daughter, July 7,1885; and Amanda Rexford, a daughter, July 5, 1899. The writing which [104]*104the plaintiff signed September 16, 1907, agreeing to surrender all her right in the land to the defendant J. J. Whitney if she failed to pay him at the time specified the money which he was to advance for her, was not sealed, witnessed or acknowledged, and hence was insufficient in law to transfer her title in the premises. The reply admits that it was the intention of the mortgagors and of the hoard of land commissioners to create and accept a lien on the south half of the donation land claim. This avowal is evidently binding upon the plaintiff, hut prior to the filing of her final pleading the concession there made had no legal efficacy, so far as disclosed by the evidence.
The defendant J. J. Whitney did not sign the memorandum to which the plaintiff appended her name. His failure to do so is unimportant, for his engagement as her attorney would have enabled her to maintain a suit to redeem the land from his purchase. Their relation as attorney and client was so confidential that her interests in the land could not have been barred except by a strict foreclosure on his part, when the decree would have provided that within a specified number of days her title was to be defeated upon failure to pay the sum of $1,000, interest, and expenses. The duties and obligations of the plaintiff and the defendant J. J. Whitney were reciprocal, and although she signed the memorandum in question she could have maintained a suit against him to redeem even after January 1,1908.
The decree complained of is in the main correct. One • feature of the final determination has neither averment nor proof to support it. The court awarded the defendant J. J. Whitney $150 as attorney’s fees, probably on the assumption that he was entitled to that sum for negotiating for the relinquishment. No [105]*105appeal was taken by the plaintiff from that part of the decree, which in this instance will be allowed to stand as given, since the defendant J. J. Whitney paid some taxes which were a lien on the premises.
The decree will therefore be affirmed, with the proviso that, unless “the sum awarded the defendant J. J. Whitney be paid to the clerk of the lower court by or for the plaintiff on or before 60 days from the entry of the mandate therein, all her right, title, interest and estate in and to the south half of the donation land claim be barred and foreclosed.
Affirmed on Condition.
Affirmed without condition.
Motion to Modify Decree.
(117 Pac. 938.)
In the former opinion in this cause the plaintiff’s right to equitable relief is made to depend upon her payment to the clerk of the lower court, within a designated time, of the sum determined to be due from her to the defendant. The fact was overlooked that the amount of money requisite for that purpose had been so deposited, and the decree is affirmed without condition. Motion Arrowed.