# Evans v. Hogue > Oregon Supreme Court · April 17, 1984 · 296 Or. 745 URL: https://www.frixlaw.com/law-library/cases/9619632 ## Case - **Full name:** EVANS Et Ux, Respondents on Review, v. HOGUE Et Al, Petitioners on Review - **Court:** Oregon Supreme Court - **Decided:** April 17, 1984 - **Citations:** 296 Or. 745; 681 P.2d 1133 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Roberts, Lent, Campbell - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9619632 ## How later opinions describe it (automated extraction) - stating that “one who has adversely possessed land for the requisite number of years gains ownership rights to the land of a status equal to deeded title” ## Opinion text CAMPBELL, J., dissenting. Although I dissent in the strongest possible way from the majority’s analysis of this case, I do agree with its acknowledgment of one of the basic principles of adverse possession. The majority in referring to DuVal et ux. v. Miller, 208 Or 176 , 300 P2d 416 (1956) says: “The principle of property ownership upon which DuVal is premised is certainly valid: one who has adversely possessed *764 land for the requisite number of years gains ownership rights to land of a status equal to deeded title.” 296 Or 752 . The above statement by the majority was not “a slip of the pen” because on page 755 of the majority opinion, it states that when the requirements of adverse possession are met the adverse possessor acquires “perfect title,” citing Spath v. Sales, 70 Or 269, 273 , 141 P 160 (1914). The vesting of title in the adverse holder upon the expiration of the ten year period has long been recognized in Oregon. In Anderson v. Richards, 100 Or 641, 650 , 198 P 570 (1921) this court said: “Adverse possession of real estate for the period prescribed by the statute of limitations vests a perfect title in the possessor as against the former holder of the title and all the world, and we have seen that he is entitled to all remedies which are incident to possession under written titles. The title is created by the existence of the facts, and not by an exhibition of them in evidence. An open, notorious, exclusive and adverse possession for ten years will operate to convey a complete title to the plaintiff as much as any written conveyance: Parker v. Metzger, 12 Or 407 ( 7 Pac. 518 ); Mitchell v. Campbell, 19 Or 198 ( 24 Pac. 455 ); Joy v. Stump, 14 Or 361 ( 12 Pac. 929 ); Thomas v. Spencer, 66 Or 361 ( 133 Pac. 822 ); Spath v. Sales, 70 Or 269, 273 ( 141 Pac. 160 ).” (Emphasis added). See also Neal v. Davis, 53 Or 423, 435 , 99 P 69 , 101 P 212 (1909). The parties agree that between 1948 and 1970 the Sampsons met all the requirements of adverse possession on the tract in question. The Court of Appeals in effect held that the 10 year period ran between 1948 and 1958. 62 Or App 666, 669-670 , 663 P2d 34 (1983) Therefore, in 1958 the Sampsons became the owners of the land in fee simple. They could have conveyed, leased, or mortgaged it. They had all the incidents of ownership. They had the full bundle of sticks. The only thing the Sampsons could not do was go to the the courthouse in Washington County and see a record title. 1 The defendants’ predecessors in interest lost the fee simple title to the two and one-half acre tract in 1958 when the Sampsons’ adverse possession was complete. They held only a *765 hollow paper title. They could not have maintained an action in ejectment to regain possession of the land because the 10 year statute of limitations under ORS 12.050 had run. On September 15, 1970, the Sampsons conveyed the land to which they held record title to the Luckeys. In 1974 and 1975 the Luckeys, in turn, conveyed the land to which they held record title to the Evans — the plaintiffs herein. The adjoining two and one-half acre tract in question was not conveyed. There is no evidence to contradict the assertion that the Sampsons still held fee simple but unrecorded title to the two and one-half acres when they sold to the Luckeys in 1970. If we assume for the sake of argument that the Sampsons intended to convey the two and one-half acre strip but did not and only orally transferred the rights of possession to the Luckeys, what was the status of the title? If one disregards the cause of suit for reformation then on a scale of zero to ten the Sampsons’ title was 9.5 — it was the whole title less the oral rights of possession. On the other hand, the Luckeys’ title was a slim 0.5 — the rights of possession under an oral transfer. The Luckeys held only one-half a stick out of the full bundle. The majority is correct when it acknowledges that the possessory rights to land may be transferred by parol. Vance v. Wood, 22 Or 77 , 29 P 73 (1892). Such an oral transfer does not violate ORS 93.020(1): “No estate or interest in real property, other than a lease for term not exceeding one year, * * * can be created, transferred or declared otherwise than by operation of law or by a conveyance or other instrument in writing, subscribed by the party creating, transferring or declaring it, or by his lawful agent under written authority, and executed with such formalities as are required by law.” 2 *766 Although probably not important to the resolution of this case, the oral possession of real property is a mere license which can be revoked at will by the owner. After the above detour, we now return to the saga of Sampsons-Luckeys-Evans. Assume further that in 1974 and 1975 the Luckeys intended to convey the two and one-half acre tract to the Evans but did not and only transferred the rights of possession to the Evans by parol. At that point the Sampsons still owned the unrecorded fee simple title and the Evans only obtained the possessory rights by oral transfer from the Luckeys. On May 22, 1980 the Evans filed their complaint in this case against the record owners of the two and one-half acre tract. The complaint alleged: “Plaintiffs and their predecessors, under claim of title for a period exceeding 20 years prior to the commencement of this action, have been in natural, open, visible, notorious, hostile, exclusive and continuous possession of the property * * * claiming exclusive title in fee simple * * * against the defendants and their predecessors in title.” The Sampsons were not joined as party defendants. Only a period of 9 years and 8 months had elapsed since the Sampsons had conveyed the record title of the adjoining land to the Luckeys. It is obvious from reading the Evans’ complaint that they were claiming to be the fee simple owners of the tract in dispute by “tacking” their adverse possession to the prior adverse possession of the Luckeys and the Sampsons. The difficulty with the Evans’ theory is that after 1958 the Sampsons were not holding the disputed property adversely. Their title had been perfected and they were the owners in fee simple. They could not hold adversely against themselves. If the Evans and Luckeys were claiming to hold the land adversely it had to be against the Sampsons as they were the only fee simple owners. The Evans could have tacked their adverse possession to the Luckeys, but this would have fallen four months short of the ten year period required to obtain title as against the Sampsons. This is explained in DuVal et ux v. Miller, 208 Or 176, 183 , 300 P2d 416 (1956). A parphrase of a portion of DuVal reads as follows: “If the plaintiffs [Evans] claimed adversely thereafter, it must have been against [Sampsons], not against the defendant *767 [record holders], for by the trial court’s decision [record holders] had lost title before the [Evans] purchased the property. If the plaintiffs [Evans] desired to acquire the disputed strip from [Sampsons] the owner, they would have to acquire an interest in the land by deed, or themselves occupy it adversely for ten years.” The majority would overrule DuVal et ux v. Miller, supra, and solve the problem in the following manner: “Where the circumstances show an intent to transfer the grantor’s interest in the property not included in the deed, we have recognized a transfer of the grantor’s interest in those cases in which the grantor’s adverse use of the property has been less than 10 years. We see no reason why a predecessor’s interest in the property attained by possessing the property for the full statutory period cannot be transferred in the same way, so long as there is a similar intent between grantor and grantee. We now hold that where there is evidence of intent between grantor and grantee to transfer the grantor’s interest in the property, the grantee may acquire the grantor’s interest, vested and complete, in those situations in which the grantor has adversely possessed for the statutory period.” (Emphasis added). 3 296 Or at 756. The above quoted portion of the majority opinion does not say so, but it is based upon the proposition that the transfer of the grantor’s interest may be by parol. It follows a quote starting on page 13 of the slip opinion from Vance v. Wood, supra, 22 Or at 88 to the effect that it is not necessary that there be a writing for a subsequent occupant to tack his possession to a prior occupant. The tacking of possession without a writing would be permissible as between the Evans and the Luckeys, but that *768 gets them no place — they are four months short of holding adversely against the Sampsons. The majority says there is no reason, “why a predecessor’s interest in the property attained by possessing the property for the full statutory period cannot be transferred” by parol. Wrong. The Sampsons’ interest is a fee simple title and can be conveyed only in writing. The majority runs afoul of ORS 93.020(1) which provides: “No * * * interest in real property * * * can be created, transferred or declared otherwise than by operation of law or by a conveyance * * * in writing * * *.” 4 *769 There is no way that the Evans and the Luckeys could have obtained the Sampsons’ “vested and complete” fee simple title in the two and one-half acre strip except by: (1) a conveyance from the Sampsons, or (2) a suit to reform the prior conveyances, or (3) holding adversely against the Sampsons for the necessary 10 year period. The majority opinion at 296 Or 745 states: “The question here involves how interests in property acquired by adverse possession can be transferred to subsequent purchasers.” The answer is: In the same manner as any other interests in real property are transferred. The majority has merely taken the “equitable claim” from Rohner et ux v. Neville, 230 Or 31 , 365 P2d 614 , 368 P2d 391 (1962) and dressed it up in a new suit of clothes and boots with straps, for lack of a better name they should call it “The stepson of Rohner. ” The majority’s opinion can also be read as an approval of an oral conveyance of Sampson’s fee simple title in violation of ORS 93.020(1) or as some form of “reformation by osmosis” whereby the prior conveyances are corrected to include the two and one-half acre tract without making the Luckeys and the Sampsons party defendants. The majority’s resolution of this case will only work if ORS 93.020(1) is repealed or the rule of law in Anderson v. Richards, supra, is changed to require the vesting of title in the adverse possessor when decreed by a court instead of upon the expiration of the 10 year period. In other words, the title would be created upon the “exhibition of the facts in evidence” instead of “by the existence of the facts.” The majority cites the case of Meyer v. Ellis, 411 P2d 338 (Wyo 1966) as following our case of DuVal et ux v. Miller, supra, and concludes that the resulting “uncertainty in property ownership” is “unsatisfactory.” Before we shed any tears we must remember that the plaintiffs Evans in this case and the plaintiffs in both DuVal and Meyer all failed to recognize their proper remedy. 5 The plaintiffs in each case should have *770 filed a suit to reform the original conveyance from their respective grantors to include the land in dispute. In this case the Evans were not in privity with the Sampsons so they would have been required to sue the Luckeys for reformation who in turn could have filed a third party suit against the Sampsons. The Evans also missed one other opportunity. The ten year period of adverse possession against the Sampsons would have expired on September 15,1980. At that point the Evans could have filed a supplemental complaint setting out a new period of adverse possession and naming the Sampsons as party defendants. The record holders at that point were not necessary parties to the Evans’ adverse possession claim, but their record title did constitute a cloud and they could have been joined in a separate cause. 6 *771 I would hold that DuVal et ux v. Miller, supra, is good law. By the very nature of adverse possession it is necessary to the orderly application of the property law in Oregon. I would overrule those parts of Rohner et ux v. Neville, supra, which are inconsistent with this dissent. As to the disposition of this case I would find that the defendant record holders are barred by ORS 12.050 from maintaining their ejectment action. The quit claim deed from the Sampsons to the defendant’s prior grantor in May 1981 does not help the defendants. The Sampsons’ interest was also barred by ORS 12.050 — more than ten years had elapsed from his possession which ended on September 15, 1970 when he conveyed the record title to adjoining property to the Luckeys. The plaintiffs’ complaint should be dismissed. I dissent. The Sampsons could not, as a practical matter, get a title insurance policy — that is defeated not as a matter of law, but a requirement of a private company that the owner hold the recorded title. ORS 93.020(1) is not to be confused with the Statute of Frauds, ORS 41.580(5), which provides: “In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: “(5) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein.” Apparently the majority is holding that where grantors (the Sampsons) have previously acquired fee simple title to real property by adverse possession and there is evidence of an intent to convey that property to a grantee (the Luckeys), then the fee simple title is transferred “vested and complete” by parol. Then several years later the same process is repeated by a transfer from the Luckeys to the Evans. It is interesting to note that there is no time element involved in the majority’s new rule. For example the Luckeys, on the morning following their purchase from the Sampsons, could have commenced a suit to quiet title against the record owners on the two and one-half tracts in question alleging themselves to be the owners in fee simple. The majority both ignores and confuses our traditional concepts of adverse possession and reformation. For example, in the Luckeys’ hypothetical suit to quiet title there would be included an additional element — intent of the Sampsons to convey — but the Sampsons would not be parties defendant. “Operation of law” is defined in Woodard Lbr. Co. v. Un. Comp. Com., 173 Or 333, 339 , 145 P2d 477 (1944): “Operation of law: Such phrase is used to describe a method by which title to property is transferred. It includes a transfer by intestacy. A right to an estate of one who dies intestate is cast upon the heir at law by operation of law: La Chapelle v. U. P. Coal Co., 29 Wyo. 449 , 214 P. 587 . It is a right not acquired by any act of the party in whom the estate is vested but is the effect of the law applicable thereto. In 46 C. J. 114, it is thus defined: ‘The obligation of law; its practical working and effect; a term applied to indicate the manner in which a party acquires rights without any act of his own.’ To the same effect, see cases collated in 29 Words and Phrases (Perm. Ed.) 578. Bouvier’s Law Dictionary (3d Revision) 2417 gives this definition: ‘A term applied to indicate the manner in which a party acquires rights without any act of his own;’ quoted with approval in Ray v. Industrial Insurance Commission, 99 Wash. 176 , 168 P. 1121 , L. R. A. 1918 F, 561.” Black’s Law Dictionary 985 (5th ed 1979), defines “operation of law” as follows: “This term expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or co-operation of the party himself.” It has been suggested that if the fee simple title created by adverse possession is vested by operation of law, then the “Stepson of Rohner” rule proclaimed by the majority in this opinion should also transfer fee simple title by operation of law. Oregon cases state in effect that title acquired by adverse possession vests by operation of law. Krueger v. Brooks, 94 Or 119, 131 , 184 P 285 (1919); Parker v. Kelsey, 82 Or 334, 343 , 161 P 694 (1916). If we are going to recognize the doctrine of adverse possession in Oregon, then it is an obvious necessity that we acknowledge the fee simple title “created” thereby is under the “operation of Law” provision of ORS 93.020. What the majority fails to completely recognize is that once the 10 year statute of limitations has run, the hatching process is over and a fee simple title has been created — the operation of law phase is completed. Once the adverse possessor has acquired title and desires to convey it, that person should be required to convey or transfer it by an instrument in writing as provided under ORS 93.020. The above definitions of “operation of law” confirm that under the majority’s theory when the Sampsons orally transferred the fee simple title to the two and one-half acres to the Luckeys who in turn orally conveyed to the Evans, it was not by operation of law but by their own individual and voluntary acts. The oral transfer of *769 the fee simple title to the two and one-half acre tract requires acceptance by the grantees, whereas in adverse possession the title is cast upon the possessor. The adverse possessor does not accept title. He acquires it by operation of law. He is in the same position as an heir at law who receives a devise of real property. In DuVal et ux v. Miller, supra, the plaintiffs DuVals at least partially solved their problems by obtaining quit-claim deeds from three-fourths of the heirs of *770 Duncan who had acquired title to the property in question by adverse possession. Duncan had conveyed his record title to the adjoining property to the DuVals six or seven years previously. In Meyer v. Ellis, supra, it would appear that the plaintiff grandson had acquired the record title to the adjoining property from his grandfather six years prior to the filing of his complaint. The grandfather was deceased. It would appear that if the plaintiff grandson failed to get deeds from his grandfather’s heirs he could bring a suit to reform against them. The grandson’s other alternative would be to wait until the 10 year statute of limitation expired and file a suit based on adverse possession against not the record owners, but against his grandfather’s heirs. Even though the defendants cannot win in their ejectment action, the Evans may in the future attempt to establish record title to the land in dispute. To accomplish this the Evans will be required to prove adverse possession against the title which the Sampsons acquired in 1958. In other words, the bell in the courthouse may have rung twice — once for the Sampsons in 1958 and then for the Evans in 1980. Because the defendants have lost in this suit does not mean that the plaintiffs will win in a subsequent suit. In a suit to quiet title the plaintiffs must recover on the stength of their own title and not on the weakness of the defendants’ title. Freytag v. Vitas, 213 Or 462, 466 , 326 P2d 110 (1958). The Evans will be required to prove that their possession was actual, open, notorious, hostile, continuous, and exclusive for a period of ten years by clear and positive evidence. Scott v. Elliott, 253 Or 168, 178 , 451 P2d 474 (1969). In May 1981 the Sampsons quitclaimed their interest in the property to Mary Baker Wall, the prior grantor of the present record holders, the Hogues and Mundt. If Mary Baker Wall had previously conveyed the record title to the Hogues and Mundt by a warranty or bargain and sale deed then any after acquired interest she may have obtained by the Sampsons would be for the benefit of her prior grantees. ORS 93.860(1) (b). The Hogues and Mundt would then be proper parties to defend the Sampsons 1958 title in any subsequent suit to quiet title brought by the Evans. In the opinion of this writer a future suit to quiet title brought by Evans would not be barred by res judicata. See Bessler v. Powder River G. Dredging Co., 90 Or 663 , 176 P 791 , 178 P 237 (1919). The future suit would be aimed at the title the Sampsons acquired in 1958 and not against the record title. If there was question about the suit to quiet title clearing the record title the Evans could join a separate cause of suit to remove a cloud from the title. The Hogues and Mundt would be proper parties in both causes of suit. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9619632. Public record. Not legal advice.