St. Dennis v. Harras , 55 Or. 379 ( 1909 )

Mr. Justice Eakin

delivered the opinion of the court.

1. The plaintiff is not asking affirmative relief; but defendant seeks to quiet his title to the property under the lease, which is described in the lease as being the “Jerry St. Dennis ranch, located on the Umatilla reservation, in said Umatilla County, and consisting of six hundred and forty (640) acres, and including the home place, where the party of the first part now resides.” The land sought to be included in the lease must be identified by the name “Jerry St. Dennis ranch,” consisting of 640 acres on the Umatilla reservation, and defendant now seeks to establish by legal subdivision the lands constituting the ranch.

2. The description of the property intended to be conveyed must be such that it can be identified with reasonable certainty. Bingham v. Honeyman, 32 Or. 129 (51 Pac. 735: 52 Pac. 755) ; House v. Jackson, 24 Or. 89 (32 Pac. 1027). That is certain which can be made certain. If the tract or parcel of land has a name to distinguish it, and by which it is known, it may be conveyed by that name without making reference to boundaries. Bogard v. Barhan, 52 Or. 121 (96 Pac. 673).

3. In this case the property is specified by the name “the Jerry St. Dennis ranch,” which is a sufficient designation if it is the pame of a definite parcel of land, but such a designation must control its boundaries, as- well as the quantity included, independent of the statement “consisting of 640 acres.” But the testimony does not tend to locate the boundaries of the Jerry St. Dennis ranch, but to prove the description of lands owned by persons bearing plaintiff’s- family name. The reference in the lease to the ranch as “consisting of 640 acres” is only an additional item of identification, and cannot operate to include in the ranch lands not part of it. Equity cannot enlarge the ranch.

Defendant in his answer only claims that the “ranch” includes 551 acres. Witness Bell says that the Jerry St. Dennis ranch includes 391 acres, of which 160 acres belong to St. Dennis’ wife (evidently meaning his present wife), 80 acres is deeded to plaintiff, and 151 acres is the Rosa St. Dennis allotment, and that there is no ranch of 640 acres known as the “Jerry St. Dennis ranch.” The 160 acres belonging to the wife, and the 80 acres deeded to plaintiff are not described or identified. Defendant contends that the leased property is the same land that is rented to Bell, together with the home place of 20 acres. Bell says he had only 371 acres leased from all the members of the St. Dennis family, including the Mrs. St. Dennis land. Therefore the statement in the lease, “consisting of 640 acres,” is without force in the case, either in identifying the ranch or the number of acres contained therein. The court cannot assume that plaintiff meant to include in the lease, or by the term “Jerry St. Dennis ranch,” any lands that he did not have the right to lease, and, if he is to be held by the terms of the lease, the lands must be such as are included within the boundaries of the ranch known as the “Jerry St. Dennis ranch.”

Witness Moorehouse, called to describe the lands situated in this ranch, was asked: “Tell us the legal description by survey of the St. Dennis land?” And he proceeded to give a description of the lands allotted to various Indians named St. Dennis, none of which belonged to this plaintiff. Col. Raley was asked to “tell us the description by legal subdivisions and according to the public survey what lands are known as the Jerry St. Dennis ranch?” and answered, “I could point out the different allotments to the different members of the St. Dennis family”; and he did so. This, however, does not identify the “Jerry St. Dennis ranch,” nor does it show that plaintiff owned any of this land. In fact, there has been no effort by defendant to prove that plaintiff had a right to lease any of this land. The evidence does show that Rosa St. Dennis, aged 42, was allotted the S. W. 1/4 of N. W. *4 and lots 4 and 5 in section 4, and the E. y2 of N. E. 1/4 of section 5, consisting of 151.53 acres; that Jerry St. Dennis, a son of Rosa, was allotted the W. 1/2 of N. E. 1/4 of section 5; that Rosa St. Dennis, a daughter of Rosa St. Dennis, was allotted the E. V2 of N. W. 1/4 of section 5; that Joseph St. Dennis, a son of Rosa St. Dennis, was allotted the N. W. 14 of the S. E. 1/4 of section 5; that Mary St. Dennis, a daughter of Rosa St. Dennis, was allotted the N. E. % of S. E. 14 of section 5; that Cecelia St. Dennis, a daughter of Rosa St. Dennis, was allotted the N. W. 14 of S. W. 1/4 of section 4; and that Nelson St. Dennis, a son of Rosa St. Dennis, was allotted lot 7 in section 4, all in township 3 N., range 34 E. These are the lands described in the answer and sought to be substituted in the lease as the “Jerry St. Dennis ranch.” The only suggestion in the record that plaintiff had any right or title to any of these lands is that Rosa St. Dennis, first named, was his wife, and is now dead. Therefore he may have a curtesy estate in her lands, and that Mary and Cecelia are both dead, and there is oral testimony that their allotments have been patented to plaintiff as their father and heir. Also there is testimony tending to show that Julia Marcett was the second wife of plaintiff, and is now dead. He may have a curtesy estate in her lands, but, excepting the Rosa St. Dennis allotment, they are not shown to be part of the “Jerry St. Dennis ranch,” but evidently the title to some of it is in others than plaintiff.

The United States statute provides that, while the United States remains the trustee of the title, allotted lands cannot be leased for a longer period than three years if for farming or grazing purposes, and then only on the approval of the Secretary of the Interior. So far as this record discloses, the title to the allotted lands of Rosa St. Dennis, Rosa St. Dennis, daughter, and Nelson St. Dennis, is in the United States government as trustee, and they come within the provision of that statute, and the heirs of the deceased allottees have an interest therein that the government, as trustee, seeks to protect. It also appears that the plaintiff has died since the trial of this suit, thus terminating his estate by the curtesy, as well as terminating his lease of such lands, if otherwise valid. Witness Bell is the only witness asked whether the Marcett land is known in the vicinity, whére it is located, as the St. Dennis land, and he answers: “I have always known it as the Marcett land. The ‘Marcett 80’ is what it is generally called.” Although defendant has not attempted to prove that the title to this land was in plaintiff at the time of making the lease, we refer to these facts to show that to amend the lease as requested would be to include land to which plaintiff had no right, and could not have intended to lease, and thus make trouble and possible litigation for innocent parties.

5. It appears that plaintiff was illiterate; could neither read, write nor sign his name. There is testimony tending strongly to show that, prior to the execution of the lease, defendant began to plan to take advantage of the plaintiff, and “work old Jerry out of” his land. On February 24, 1908, defendant and plaintiff were going from Pendleton to Walla Walla to execute the lease, plaintiff being so intoxicated that he had to be helped on the train, and they continued drinking while on the train, and, when they arrived at Walla Walla, defendant took plaintiff to a saloon, where more drinks were taken, and when the lease was drawn up, and plaintiff made his mark to his name thereon, he was intoxicated. The defendant afterward, within three or four days, tried to sell the lease to Caldwell, and later sold it to D. W. Bailey. Bell, whose lease on the land had not expired, testified that at about the same time defendant said to him: “ ’You stand in with me, and I will stand in with you; and don’t you pay the old * * (man) any more rent,’ he said. And he says, T have got all his papers. I have them locked up in my safe. I have them solid. He can’t do anything.’ ”

6. The lease called for the rent in advance and was due February 24, 1908, the day the lease was signed, being $1,920 (if defendant in good faith understood there were 640 acres). Sixty-five dollars was paid as rent, as recited in the receipts, part of it while plaintiff was still drinking at Walla Walla, after the lease was signed. But the rent was not paid according to the terms of the lease. The defendant knew that these were Indian lands, allotted to members of the St. Dennis family as Indians. He also knew that Bell’s lease would not expire until October 1, 1909, and yet had his lease include that period. This evidence of bad faith on the part of the defendant, together with the failure of defendant to identify the boundaries of the “Jerry St. Dennis ranch,” and the want of right or title in plaintiff to much of the land, which defendant seeks to have included in the lease, discloses that defendant is not entitled to the relief sought, and there is no equity in his favor.

Decided February 8, 1910. (106 Pac. 789.)

A decree will be rendered here, dismissing the cross-bill, and that plaintiff recover his costs and disbursements, accruing on and after July 13, 1908, and that defendant recover disbursements incurred by him prior to that date. Reversed : Decree Rendered.