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the party to create such a relation, and often contrary to the one holding the legal title.

* If one party obtains the legal title to property, not onl by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.” 1 Pom. Eq. Jur. § 155.

It must be apparent that George W. Springer could not have retained the title to this land against the claim of this plaintiff, so far as yet appears; and, if he could not, neither can the defendants, who have or claim no other interest therein than such as descended to them as heirs at law of their father, George W. Springer. They stand in the shoes of their ancestor. They take the title which the law casts upon them, affected with the same trusts and equities as it was when their ancestor held it.

Does the fact that the plaintiff was the wife of George W. Springer during these transactions affect, impair, or destroy the rights which she would have otherwise had in the land in question? It was argued by counsel for the appellants that George W. Springer received the plaintiff's portion of the purchase price of the donation claim when it was sold, and thereby reduced the same to possession, and this made the same his own, and cut off all rights of the plaintiff. This assumption relates to a question of fact, and does not appear to be justified by the evidence. The plaintiff testified that she had possession of her half of this money, the same as he had his, and I cannot find any controverting evidence in this record. Besides, if the plaintiff only gave this money to her husband to pay over for her for the land in question, then his possession of it was not such as would extinguish her rights.

However this may be, there is another and a more serious difficulty in the way of the appellants. On the twentieth day of January, 1852, the legislature of Oregon passed an act providing that “all right and interest of the wife in land donated by said act of twenty-seventh of September, 1850, should be secured to the sole and separate use and control of the wife, and that she should have to her own use the rents and profits thereof, and that such land should in no manner be made liable to the debts of her husband." It is true this act was repealed in 1853, but the effect of the act and of the repeal have both received a construction by this court which is adverse to appellant's claim, and is decisive of this point. Linnville v. Smith, 6 Or. 202.

The appellants next insist that the plaintiff's claim or interest in said land is barred by the statute of limitations. Section 378 of the Civil Code, as amended by Sess. Acts 1878, p. 25, provides: “A suit shall only be commenced within the time limited to commence an action as provided in title 2 of chapter 1 of this Code, and a suit for the determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property.” This suit falls within this provision of the Code, and the same statute that would bar an action for the recovery of the possession of real property will bar this suit. That period is 10 years, and is fixed by section 4 of the Civil Code as amended. Sess. Acts 1878, pp. 21, 22. But possession, to constitute a bar either at law or in equity, must be adverse. The statute nowhere defines what shall be an adverse possession sufficient to bar an entry. An adverse possession cannot begin until there has been a disseizin; and, to constitute a disseizin, there must be an actual expulsion of the true owner for the full period prescribed by the statute. An adverse possession is aptly defined by INGERSOLL, J., in Bryan v. Atwater, 5 Day, 181, to be “a possession, not under the legal proprietor, but entered into without his consent either directly or indirectly given. it is a possession by which he is disseized and ousted of the lands so possessed." To make a possession adverse it must be “an actual, continued, visible, notorious, distinct, and hostile possession." If its inception was permissive, or with the consent of the true owner, then such possession could never become adverse until some clear decisive act of the occupant is shown which would constitute a disseizin of the true owner. Hall v. Stevens, 9 Metc. 418; Dikeman v. Parrish, 6 Pa. St. 210; McMaster's v. Bell, 2 Pen. & W.180. So, also, if, at the time one enters, or afterwards, he does not claim title in himself, but acknowledges the title of another, his possession must be taken as an entry or holding in subordination to the title of the person whose right he acknowledges. Rung v. Shoneberger, 2 Watts, 23.

But we do not think the statute of limitations applies in this case, for another reason. Neither husband nor wife can hold, adversely to each other, premises of which they are in the joint occupancy, as a family. Hendricks v. Rasson, 53 Mich. 575; S. C. 19 N. W. Rep. 192. In such case the possession of neither can be regarded as adverse to the other while they jointly reside upon and occupy such premises. There is no more reason to claim that Mr. Springer's possession was adverse to the plaintiff than there would be to maintain that her possession was adverse. The possession of neither was adverse to the other. In such case the law will not subject either husband or wife to a loss of property because such person has not resorted to legal proceedings, but will rather hold that the possession of each was in subordination to such rights in the property as were possessed by the other party.

Nor is this a stale claim. The same reason that would prevent the statute of limitations from running in this case will save the claim from being stale. The plaintiff was not bound to sue her husband. He never denied her right, but always acknowledged-it, and no sufficient reason has been suggested why the plaintiff should be denied the assistance of a court of equity, on the ground that her claim is alleged to be stale. The plaintiff's claim is entirely meritorious. It rests on its own merits. It is unaffected by a single act of bad faith. It had its origin in the act of congress making donations of public lands to the early settlers of Oregon. She endured the hardships of pioneer life to assist her husband in its acquisition. She has done no act to forfeit the right thus acquired, and we have no doubt she is entitled to the relief prayed for.

Let the decree be affirmed.

THAYER, J., (concurring.) This appeal is from a decree in equity. The suit in the court below originated out of family difficulty. The respondent, who is quite an old lady, claimed to own a trust-estate in a 520-acre farm in Yamhill county, and two of her daughters, who are married women, denied the ownership. Thereupon the respondent commenced the suit to have a trust in her favor declared in an undivided half of the farm. She claims that her husband, George W. Springer, late of said county, deceased, and herself, owned a donation land claim under the donation law of Oregon, situated in Polk county; that they sold it, in the year 1856, for the sum of $3,750, and invested the proceeds in said farm, under an agreement between themselves that each should own one-half thereof; that the deed was taken in the liusband's name as a matter of convenience, but that he agreed, at the time, to convey an undivided one-half of it to her, and had, during all his life thereafter, recognized her right to such half; that they lived upon and cultivated the farm, reared a large family, and that in 1880 the husband was taken suddenly ill, and only lived a few days thereafter. All the children, except the two daughters, recognize the respondent's right in the premises, and joined in a conveyance to her of a one-half of the farm, but the deed was to the north half of it in severalty,

There is no dispute as to the ownership of the respondent and her husband of the donation claim, nor of the sale and investment of the proceeds thereof in the farm, though some question is made in regard to the status of their title to the claim at the time of the sale, and it is denied that there was any agreement between them that respondent was to have a half interest in the farm. The appellants' counsel claim that, upon the sale of the donation right, the money realized therefrom came into the hands of the husband, was personal property, and he became the absolute owner thereof by virtue of his marital rights as then existing; and that, therefore, no funds of the respondent went into the farm, and consequently no resulting trust could have arisen in her favor; and that, if there had been such an agreement between the respondent and her husband as claimed by her, the statute of limitations had cut off her right to claim any interest in the farm; and that, in any view, she was barred by lapse of time from asserting her pretended claim.

It seems to me that an unprejudiced person would look upon this defense, under the circumstances of the case, as very ungracious, and one that a court of equity would not regard with favor. I am unable to discover why, if the respondent and her husband owned the donation claim, and invested the proceeds arising from a sale of it in the farm, the respondent should not be entitled to a half interest in the latter as a matter of right and justice. Her title to a half interest in the donation claim was as undoubted as that of her husband. It was given to her by the act of congress of September 27, 1850, “to be held by her in her own right;" and to hold that a sale of it, and the purchase of the farm with the proceeds, operated, against her will, to forfeit to the husband her interest in the matter, would, as I view it, be an attempt to legalize robbery. The act of congress referred to granted to every white settler residing in the territory of Oregon, 320 acres of land if a single man, and, if a married man, 640 acres,-one-half to himself, and the other half to his wife, to be held by her in her own right. This act always seemed to me to vest in the wife, upon compliance with its terms, a separate estate; that the grant had a double operation. It not only conveyed to the wise an estate, but it capacitated her to hold it in her own right, without the intervention of trustees to prevent the marital rights of the husband from attaching. It was a law, as well as a grant; and it precluded, by its terms, the husband from interfering with the land granted, or with the proceeds, in event she sold it. It stood upon a different footing from that of real property conveyed to a married woman at common law. There, in order to prevent the marital rights of the husband from attaching, it had to be conveyed to trustees for her use. It was not in the power of a private party to impress upon the property conveyed directly to a married woman such a character of trust as would relieve it from the operation of the rules of the common law; but the congress of the United States has power, under the constitution, to make all needful rules and regulations respecting the territory and other property belonging to the United States. It had power, at the time of the passage of the donation act, to legislate in the then territory of Oregon in regard to persons and property therein; and, when it enacted the law giving to a married woman land to be held by her in her own right, it certainly did not intend that the husband could appropriate its use, or convert the proceeds arising from a sale of it without her consent; nor that unfilial children should be able to de prive her of its benefits through the instrumentality of an obsolete rule found among the dusty cobwebs of the common law.

In granting the public lands, congress has a right to annex to the grant such conditions and qualifications as it may deem proper, and exempt the land granted from the operation of existing general laws. Thus the act entitled “An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, exempted such homesteads from liability for debts contracted prior to the issuing of the patent; and the provision has been enforced by this court. Clark v. Bayley, 5 Or. 343. The effect of the latter act was to restrict the laws of Oregon in regard to the liability of property to execution; and the former act, in the same way, curtailed the marital rights of a husband to his wife's half of a donation land claim. He might probably succeed, upon her death, to an estate as tenant by the curtesy in it under the statutes of the state, but did not have what was termed at common law an estate jure uxori in her half of the claim.

Under this view it would only require slight evidence, if any, beyond the fact ihat the proceeds from the sale of the donation claim were invested in the farm, to establish that the respondent was owner of the trust-estate therein, as claimed in her complaint. That there was an understanding that she was to have an individed half interest in the farm is very certain, if any credit whatever is to be given to the testimony taken in the case, and read at the hearing. It is so natural and just that such should have been the understanding between the respondent and her husband that I am not inclined to question the sufficiency of the proof upon that point, although it merely depends upon the respondent's evidence alone.

Nor do I believe that the trust is affected by the statute of limitations, any more than the legal title would have been under the circumstances, if it had been conveyed to the respondent immediately after the purchase of the farm. The appellants, in the latter case, could as effectually have interposed that plea as they can now. The respondent's right was not denied by her husband. He always, up to the time of his last sickness, she says, recognized it. Both parties were living upon the farm as husband and wife, enjoying its benefits; and the latter, as long as she had entire confidence in the former, had no occasion to exact from him a conveyance. It seems to me that in such a case it would require some overt act on the part of the husband to set the statute in motion; that it would not begin to run until the respondent was excluded from an enjoyment of the farm, or her claim to an undivided half interest in it were denied by the husband. For the same reason the defense that the respondent's claim is barred on account of lapse of time that intervened between the time it accrued and of the attempt to enforce it, is not sustained.

I am of the opinion, therefore, that the decree appealed from should be affirmed.

NOTE. 1. As to implied trusts arising when land is conveyed to one person, and the consideration, or a part thereof, is paid by another, see Bedford v. Graves, (Ky.) 1 S. W. Rep. 534, and note; Bigley v. Jones, (Pà.) 7 A Rep. 54.

2. As to the running of the statute of limitations against a trust, see Henderson v. Maciay, (Pa.) 6 Atl. Rep. 52, and note; Gilbert v. Sleeper, (Or.) 12 Pac. Rep. 172.

As to adverse possession, and the running of statute of limitations against joint tenants, see Comer v. Comer, (111.) 8 N. E. Rep. 796, and note; Burgett v. Taliaferro, (I11.) 9 N. E. Rep. 334.

(36 Kan. 90)

STATE v. PFEFFERLE.

(Supreme Court of Kansas. December 9, 1886.) 1. INTOXICATING LIQUORS-PROSECUTION FOR SALE OF-EVIDENCE.

Under an information charging the unlawful sale of intoxicating liquors, there was proof that the defendant sold a beverage called “Phænix,” which stimulated and intoxicated those who drank it. Held, that the testimony that the defendant had a barrel of whisky on tap in his place of business tended to support the charge,

and was admissible. 2. CRIMINAL LAW-DEFENDANT AS WITNESS.

Where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness, and is entitled to the same privileges, and subject to the same treatment, and to be contradicted, discredited, or impeached,

the same as any other witness." 3. WITNESS-Cross-EXAMINATION-COLLATERAL MATTERS.

The extent to which a witness may be cross-examined on matters irrelevant and collateral to the main issue, with a view of impairing his credibility, depends upon the appearance and conduct of the witness, and all the circumstances of the case, and necessarily rests in the sound discretion of the trial court; and only where

1 See note at end of case.

there has been a clear abuse of that discretion will error lie. 4. SAME-CONVICTION OF CRIME-CO-DEFENDANT.

A co-defendant who voluntarily became a witness, and has not appealed, was asked by the state, on cross-examination, if he had not recently been tried and convicted several times for the unlawful sale of intoxicating liquors, and, over objec.

tion, gave au affirmative answer. Held to be no error. 5. INTOXICATING LIQUORS-PROSECUTION-INSTRUCTIONS.

Where the only sales of liquor charged in the information were those made within the present year, and there was no proof of sales except of those made during the same year, it was unnecessary for the court to instruct the jury that they could only consider such sales as were made within two years preceding the filing of the in

formation. 6. CRIMINAL LAW-REQUESTING INSTRUCTION.

A party who desires an instruction upon some particular question not included in the general charge, should request the presiding judge to give the same; but where no such request is made, and the case is fairly presented to the jury, he can

not afterwards complain that the instruction was not given. (Syllabus by the Court.)

Appeal from Lyon county.

Information against two defendants for unlawful sale of intoxicating liquors. Both found guilty. One appeais.

J. W. Feighan and S. B. Bradford, Atty. Gen., for the State. Wood & Mackey, for appellant.

JOHNSTON, J. The information in this case contained five counts, in each of which it was charged that 0. Pfefferle and August Gutekunst sold intoxicating liquors at stated times during the year 1886, without having a permit to do so. They were jointly tried, and were both found guilty on each count, but Pfefferle only has appealed. Testimony was received over the objection of the defendants that a portion of a barrel of whisky was found in the cellar of the house in which they were doing business. It is claimed that the testimony was irrelevant, and did not tend to support the issue in the case, which were sales of a drink called “Phenix," and not of whisky. We entertain no doubt that the testimony was admissible. The defendants were openly engaged in the sales of beverages, one of which was termed “Phenix.” There was no analysis of this beverage, and whether whisky was one of the ingredients is not clearly shown. Witnesses did testify that “Phænix” was stimulating; some that it tasted, smelled and looked like beer; others that they became drunk by the use of it; and the defendant admitted that it contained some alcohol. The charge was the sale of intoxicating liquors, and, if the beverage sold was intoxicating, the mere fact that it was called “Phenix” will not change the rules of evidence, nor relieve the defendant from the consequences of its unlawful sale. The state elected to stand upon the sale of intoxicating liquors, and not upon the sale of "Phoenix,” as defendant argued.

The evidence is amply sufficient to show that the beverage sold was an intoxicating one, and the fact that the defendant had, in his place of business, a barrel of whisky on tap tended, in some degree, to sustain the charge, and, in connection with the other evidence, was sufficient to sustain a verdict.

The defendant Gutekunst voluntarily became a witness in behalf of Pfefferle and himself, and, upon cross-examination, he was asked if he was not an old saloon keeper, and if he had not been tried and convicted in that court several times for the sale of liquor. Other questions of like import were asked, and the witness, over the objection of the defendant, admitted that he had been engaged in the sale of liquor, and had recently been tried and convicted for its unlawful sale. The admission of this evidence is the principal error complained of. By taking the witness stand, Gutekunst

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