(185 P.) a good part of the time the defendant did the work for the household, although she generally had help when there were a large number of men. However, it was no slight task at any time for a woman to keep house, cook for her husband, and what men there were upon the place, and take care of her numerous small family. With such frequent increases in the family and the accompanying aggravations and disabilities, it must have been a very severe trial. Under such circumstances, it would not be strange if her housekeeping was not of the best, or if her children or herself sometimes were neglected in their personal appearance and condition. No doubt, this was sometimes annoying to the plaintiff, who it seems to have been a man of rather unusual neatness; but he should have remembered that he was as much responsible as his wife for the rapid increase of the family, and the resulting conditions to her health. People marry in this world for "worse" as well as for "better," and it is not often in the marriage relation that both parties do not find much in the way of fault in the other party, which they had not expected; and they must bear with patience what they cannot better by love and affection. We think there was nothing in the habits or conduct of the defendant in this regard which even approximated "cruel and inhuman treatment," as defined by the authorities. [2] The most serious matter complained of by the plaintiff is the charge, or intimation on the part of the defendant, that the plaintiff had been guilty of improper conduct with Mrs. Wineberger. It seems that, a month or two before the separation, the defendant came downstairs one night after putting the children to bed, and, while she was in the living room, the plaintiff came out of the dining room in his stocking feet, carrying his shoes. Mrs. Wineberger's room opened off of the dining room at the left of the door as one came from the dining room to the living room. The kitchen and bathroom also opened off from the dining room, and the door from the dining room to the kitchen was almost directly opposite the door from the dining room to the living room. The plaintiff claims he had been through the dining room into the kitchen to get a drink before going to bed; but the defendant claims that from where she stood she could see right through to the kitchen door, and that plaintiff did not come out of that door, but that he came from towards Mrs. Wineberger's room, and brushed against that side of the door, as he came through into the living room from the dining room. ever, had gone to town or off somewhere that day, and Mr. Parman and Mrs. Wineberger seem to have been the only persons in the lower part of the house at the time. After her husband came through the room, Mrs. Parman went into the dining room and found the door leading from the dining room into Mrs. Wineberger's room ajar. She opened the door and went into the room and shook Mrs. Wineberger, but got no response. Mrs. Wineberger either was, or pretended to be, so sound asleep that she could not be awakened in that way. The plaintiff does not claim that Mrs. Parman accused him directly of improper relation. She says she did not. if he had been in her room that night. Of "No, sir; I simply asked him the question course, I suppose it was an intimation in a way that such a thing might have been. Mr. Parman evidently took it that way." We agree with the trial court that there was no sufficient evidence of any improper relation between plaintiff and Mrs. Wineberger at that time to justify a finding against him in that regard. We also think, however, that Mrs. Parman had some reasonable ground for suspicion. Mrs. Parman testifies that previous to that "I discovered along in the winter-I don't remember what time-Mrs. Wineberger was act went to Mr. Parman about it, and he decided ing peculiarly with the men especially, and I that there were improper relations between them. I think he went to Mr. Wineberger about it and warned the men also." So that from her standpoint, at least, Mrs. Wineberger was not a woman above all reproach. Then again there had been another incident some time before, in which another hired girl accused the plaintiff of being too familiar with her in the presence of both plaintiff and defendant. Mr. Parman denies that there has been anything wrong between him and that girl, but he admits she made the accusation. Under these circumstances, Mrs. Parman certainly had some reason to doubt whether her husband was above temptation in matters of this kind. If, as she testifies, she found her husband coming from the direction of Mrs. Wineberger's room, in his stocking feet, with his shoes in his hand, at a time when she was supposed to have retired, and when there was no one in that portion of the house but her husband and Mrs. Wineberger, and upon going to the room she found the door ajar, and Mrs. Wineberger pretending to sleep so soundly that she could not be wakened by shaking, it was natural that she should be somewhat disturbed by the cir Mrs. Wineberger was a neighbor living on a homestead in one of plaintiff's pastures, and she and her husband were working for the plaintiff at that time. Her husband, how- | cumstances. [3] It all happened at a time when Mrs.Į wife never did wish to separate. It is true Parman was pregnant and expecting daily that she signed the agreement in relation to that her baby would be born. It is a well- the division of the property, but that was not known fact that under such circumstances a separation agreement, and the plaintiff women are more sensitive and more suspi- seems to have been the moving party in the cious than they are at other times. Under execution of that agreement, as well as in such circumstances, we cannot say that it was demanding the separation. cruel and inhuman for her to express her doubts to her husband. Nor do we think it was sufficient reason, under all the circumstances, for the plaintiff to put her away from him and demand a separation, as he did about two weeks afterwards, when she must have been still sick from the loss of her baby, according to his own evidence. It is urged on behalf of plaintiff that, while no one of the acts complained of by plaintiff might be sufficient cause for divorce, yet altogether and in the aggregate they are sufficient; but we think not. The actions complained of cover a long period of time—about 10 years and they are gathered from time to time by witnesses who were generally hostile to the defendant. After the defendant had lived with her husband on the farm near Condon for several years, the plaintiff's brother also moved upon the farm with his wife and one of plaintiff's sisters, and they continued to live on the farm for some years. Naturally, trouble grew between the women of the two families. They quarreled about the management of the place, and there has been a very bitter feeling ever since. Weighing their evidence in this light, taking into consideration all the circumstances, we do not think that any shortcomings of the defendant are sufficient to justify putting her away or granting a divorce. The plaintiff cites the case of Lisenby v. Lisenby, 89 Or. 273, 173 Pac. 888. But that case was a much stronger case for the plaintiff than the one at bar. In the Lisenby Case, according to the evidence of the plaintiff, the defendant had utterly refused to live with him, unless he lived in the house with her father and mother, and both she and her relatives in her presence had frequently sneered at him and talked insultingly to him. When he finally asked her to go away from them and live with him, she flatly refused; and at the trial, when the court undertook to act as intermediary and to induce her to go back to her husband, who was willing to take her back, she again openly and flatly refused. Here there are no such circumstances. The defendant, on the other hand, testifies that she has never consented to a permanent separation, and she does not consent to such separation now, and announces herself as willing to continue the marriage relation. The plaintiff, in his testimony, substantially admits that he has been the moving party Even after this suit was brought, the plaintiff and the defendant had at one time almost reconciled their differences and had agreed upon going back together to live, but they failed to agree upon a rearrangement of their property; and the plaintiff then decided to continue the divorce proceedings. The plaintiff demanded that, as a condition of their remaining together, the defendant repay to him the $5,000 he had turned over to her. She says she doubted his fairness in the matter and was not willing to do that, unless he would cause certain real property, to which she had signed deeds, to be deeded back to her and him jointly, which he refused to do. This does not seem an unreasonable requirement upon her part. Upon the whole, the plaintiff and defendant seem to have lived together with reasonable happiness up at least until the year 1916. On March 13th of that year, upon the occasion of the loss of their fifth child, plaintiff wrote a letter to the defendant, running over with affection and winding up, "Goodby sweetheart, and remember that your husband thinks of you and loves you every minute." It is plain from this letter that their life together up to that time could not have been so very unhappy. About this time, or shortly after, the Wineberger woman moved into the neighborhood. Whether it is a simple coincidence that about that time the plaintff commenced to have a coldness toward the defendant, we cannot say. It appears in evidence, however, that since the separation, which the plaintiff insisted upon, he has been visiting and corresponding with Mrs. Wineberger. She remained at his house a short time after the defendant moved away, and afterwards the plaintiff visited her in Portland and took her out to a show and on an automobile excursion over to Vancouver. Afterwards she moved to Ashland, and the plaintiff visited her there. It is due to him to say that he claims to have been up there on business matters, and this may be true; but he also says he has written her a number of letters since she left his place. In view of the fact that the trouble between himself and his wife was about this woman, it seems strange that he should have paid her so much attention. [4] Whether, now that she has passed out of the lives of plaintiff and defendant, and ceased to be a cause of friction, they can ever resume their happy marriage relations, is (185 P.) evidence in the case, on behalf of plaintiff, is | conditions they might purchase the lands so too weak to justify a divorce decree in his held. favor. Decree affirmed. BURNETT, J., concurs in the result. (94 Or. 690) LOONEY et al. v. SEARS et al. (Supreme Court of Oregon. Dec. 23, 1919.) Long prior to 1900 one William S. Bean had taken a homestead on the even section adjoining the land in dispute, and was in possession of the tract which is in disputeprobably in connection with his homesteadclaiming it as railroad land. At some time prior to 1890 William Looney seems to have purchased from Bean the possessory right to Bean's homestead claim. About that time Bean moved away and left the country. Looney seems to have remained in possession, both of the homestead claim upon which he filed, and also the rail 1. ADVERSE POSSESSION 70-TITLE NEED road land, which is now in dispute. Either NOT BE PERFECT. It is not necessary, to make possession adverse, that a party should have a perfect title, or that he should even think he has a perfect title, but on the contrary he may know his title is weak and defective. at the time of the purchase of the homestead, or at some later time, there seems to have been some arrangement or oral contract between Bean and Looney in relation to the purchase of Bean's right to the railroad land. In the year 1898 Bean filed upon and pur 2. ADVERSE POSSESSION 114(1)-SUSTAINED chased the land under the act of Congress BY EVIDENCE. In an action to quiet title, under claim of title by adverse possession, evidence held sufficient to sustain a judgment for plaintiffs, although the person under whom plaintiffs claim failed to pay the taxes on the land, and did not return the same on his tax list. In Banc. Appeal from Circuit Court, Gilliam County; D. R. Parker, Judge. Suit by Robert Looney and others against James K. Sears and others. Decree for plaintiffs, and the named defendant appeals. Affirmed. at $1.25 an acre, making an affidavit at the time that he was in possession of the land, and had been ever since prior to the year 1890 claiming it as Northern Pacific Railroad land, and expecting to obtain title to it from said company. Looney assisted him in making this proof and made a corroboratory affidavit. On May 22, 1899, the government issued.a patent to Bean for the land. Shortly afterwards, and during the year 1900, there seems to have been a controversy between Bean and Looney as to the terms and conditions under which Bean was to transfer the land to Looney, and Bean refused to make a deed of the land to Looney. He finally repudiated the transaction with Looney altogether, claiming that Looney had failed to comply Southeast quarter of northeast quarter, and with the terms of the contract on his part, the east half of the southeast quarter, of sec- and Bean thereupon in the year 1901 transtion 5, and the northwest quarter of the north-ferred the land in question to Sears, the dewest quarter, of section 9, all in township 4, south of range 20, E. W. M. Gilliam county, This is a suit brought to quiet title to a strip of land described as follows: Oregon. The lands in question were originally what is generally known as "Forfeited Northern Pacific Railroad lands." fendant herein. According to the testimony, Sears paid a consideration of about $725 for the land. About $600 of this was in satisfaction of a previous debt, and $125 was paid to Bean and his wife in cash. Shortly after this transaction, Sears placed his deed from Bean upon the record, and is now the unquestioned holder of the record title. Bean and Looney are both dead, and this suit is brought by the heirs of Looney against Sears to quiet title, plaintiffs alleging that William Looney and his representatives have held adverse possession of the tract in question from the year 1890 up to the time of the These lands were for a long time supposed to be a part of the land grant of odd sections to the Northern Pacific Railroad, and were held by it for many years as a part thereof. However, in 1890 Congress passed an act forfeiting them. Prior to that time many persons had settled upon the lands under contracts with the Northern Pacific Railroad, expecting to purchase the same ultimately commencement of this suit, which was about from that company. The act of Congress recognized their possessory rights, and provided that under certain circumstances and June, 1918. The only question in the case is whether or not the plaintiffs have title to the land by adverse possession. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Wm. Ramsey, of McMinnville (Ramsey, In addition to this the defendant offered Lange & Nott, of McMinnville, on the briefs), the testimony of one Portwood, who was for appellant. county clerk between 1901 and 1905, and who T. A. Weinke, of Condon, for respondents. testified in relation to the matter as follows: BENNETT, J. (after stating the facts as above). There is no question but what the plaintiffs and their ancestor, William Looney, have been in possession of the land from the year 1900 up to the beginning of this suit. Neither can there be any serious question but what that possession was open, notorious, and exclusive. "A. Well, about all I remember was that he had furnished Mr. Bean the money to buy the land from the R. R. Company, expecting to get a deed to it when Mr. Bean got the title, and that he never got it. That is, Bean had never given him a deed. "Q. Did he say whether he claimed to own the land? A. I never remember hearing him say he owned it, but he had possession of it, farmed it. He didn't talk to me as though he owned it. I understood it was to be assessed to Mr. Sears. "Q. What further did he say, if anything. about claiming the land, or his interest in it? A. Well, about all I remember was that at one time he talked to me about some one had adThe undisputed evidence shows that Wil-vised him if he would pay the taxes on the liam Looney had the land inclosed in the land, it would give him some right to hold it year 1900 (partly by his own fence, partly in some way; he had that impression, and he by the fence around his homestead adjoining asked me about it. He thought if he paid the and partly by connecting with the fences of taxes before Mr. Sears did it might help his case. We had some conversation along that other neighbors). In 1901 he built a house line; I don't remember exactly what it was. upon it, two stories high and 16x24 feet in diameter, and afterwards it was enlarged by one of his tenants. He also built a barn on the place. At first he used the land for grazing purposes, but some time prior to 1908 he commenced to cultivate about 15 acres, and in that year one of his tenants, by the name of Rickard, broke up an additional 40 acres, which has since been in cultivation. Looney rented the land out at different times to different parties-once to a man by the name of Simon for two or three years, and again to Rickard, who farmed it for six years-from 1909 to 1914. At the time of his death the improvements Mr. Looney had on the place in dispute were valued by the witnesses at about $1,000 or $1,200. The only question, therefore, is whether or not this possession of Looney was adverse to the rights of the defendant and under claim of right. As Looney himself is dead, the evidence is necessarily largely inferential and circumstantial. On the one hand there is his long continual possession and his continuous acts of ownership over the property. He fenced it, improved it, built a house and barn thereon, and rented it to at least two different parties, and the further fact that he did not pay any rent or in any wise recognize any superior right of the defendant. In addition to this, there is the testimony of Robert Looney, son of William Looney, and several neighbors living in the vicinity, who testified that William Looney always claimed to own the land, from the year 1900 down to the time of his death. Against this on the other hand is offered the undisputed fact that Looney did not pay the taxes, that the land was constantly as sessed to Sears, and that Looney in four different years made sworn returns of his property to the assessor and omitted to list A. I don't remember. But it must have been "Q. How long ago was that, if you remember? between 1901 and 1905, probably, different times during that time." And again on cross-examination: "Q. Did he, at the time he asked you about the payment of taxes, did his idea seem to be he was going to retain possession, he was going to hold possession, and he was going to try to get a better hold? A. Yes; I presume that is what the idea was. "Q. He was trying to hold the land, trying to get a better hold? A. I don't know as to that. He simply asked me if I thought if he paid the taxes, he would have a better show to retain the land. "Q. He was in possession of the land? Yes." Defendant also offers his own testimony as to a conversation he had with William Looney in 1904, at a time when he came up to redeem the land from a tax sale. He says of this conversation: "He told me he ought to have that land; that he had an agreement with Mr. Bean, and that he ought to have that land. He says, 'He has acted the scoundrel with me.' He used very strong language. He says, 'If I have to leave that land I will hunt up Bill Bean and kill him; he has betrayed me.' I said, 'Mr. Looney, you would hardly do that, after second thought.'" There is considerable testimony and much discussion in the briefs as to the nature of the contract between Bean and William Looney regarding the land. It is evident from the record that there was some kind of a deal between them, in relation to this Sears in 1901; but as both Bean and William Looney are dead, the evidence remains very nebulous and unsatisfactory as to what the nature of that agreement really was. 927 Nearly all of these distinguishing acts of ownership occurred in this case, and in addition thereto the overwhelming testimony is that Looney frequently, in connection with his possession, asserted that he owned and claimed the land. In Smith v. Badura, 70 Or. 58, 61, 139 Pac. 107, 108, it is said: As we view it, however, that is wholly immaterial, for whatever that agreement was Mr. Bean repudiated it, claiming that Looney had not complied with the contract upon his part, and made it impossible for him to transfer the land to Looney or to comply that is one manner of declaring to the world, "If such person uses the property as his own, with any agreement in relation thereto, or the true owner, that he is asserting a title which had theretofore existed by deeding in hostility to the true title, and thenceforth the land absolutely to Sears. After Bean the owner must beware. Such entry and use had thus repudiated the contract and trans- raises a presumption of the claim of right or tiferred the land to another party, claiming tle." that he was no longer under any obligation to convey to Looney, it could hardly be said that Looney continued to hold under the contract. We think Looney's continuous possession for so long a time; his assertion of ownership and right to the land; the placing of a valuable house and barn and fencing on the land; the renting it, and taking the rents and profits to himself-were such unequivocal acts of ownership as to overcome the inference which might otherwise be drawn from his failure to pay the taxes, or to return the property upon his tax list. It is true that his failure to pay the taxes on the land and his failure to return the same on his tax lists was persuasive evidence against his claim of right, and if his acts of ownership were otherwise equivocal or doubtful, his failure to pay the taxes might turn the scales against him. But while the failure to pay the taxes, or to return the property for taxation, is competent evidence and of considerable weight, it is by no means conclusive. In 2 C. J. 203, it is said: "Payment of taxes is not an element of adverse possession, unless made so by statutory requirement, and the fact that the owner of land held adversely by another continues to pay the taxes assessed on the land will not preclude the latter from acquiring title thereto by lapse of time." In 2 C. J. 270, it is said: "Adverse possession of land may be shown by proof of the acts of the claimant as well as by his oral declarations. Exercise of the usual acts of ownership over the land in dispute is evidence to show that the possession was hostile. The character of the possession cannot always be determined from the declarations of the person in possession because he may not make any, nor are his declarations always conclusive against one claiming under him. it is permissible to show a conveyance of the Thus premises by the claimant, or an offer to convey them, or a mortgage, or a lease, or a devise thereof, by him, or that he prevented cattle belonging to others from running at large on the land, or built a residence thereon." 124, 112 Pac. 531, 533, it is announced: "Actual, open, notorious, distinct, and conclaim of right, and not inconsistent with the tinuous possession of real property, under a other acts of the party or circumstances in the case, raise a presumption that the possession is hostile." The statements of Looney to Portwood and to the defendant do not seem to show that Looney was not claiming a right to the land. The statements to Portwood import, on the contrary, that he was claiming it, and seeking for means whereby he could make his right more effective. In the talk with Sears, he says: "If I have to leave that land I will hunt up Bill Bean and kill him." the fact that he did not give up the land, but We think this language, in connection with continued in possession, was an assertion of his claim of right. We do not say, "if I have to leave" a thing unless we are claiming that thing. Of course, Looney knew all the time after Bean refused to make him a deed that his title to the property was defective, and that he might have to give it up, but he was sticking in possession, and by his actions sturdily asserting his claim, just the same. [1] It is not necessary to make possession "adverse" that a party shall have a perfect title, or that he shall even think he has a perfect title. On the contrary, he may know that his title is weak and defective, and yet be holding adversely. In 2 C. J. 201, it is said: that the title was defective or was not a per"Mere knowledge on the part of claimant fect title will not impeach the good faith of his consistent with a bona fide claim of right." purchase. Such knowledge is not in itself in In Bessler v. Powder R. G. Dredging Co., 185 Pac. 753, it is said by Judge Bean, speaking for the court in banc: |