Appeal from Circuit Court, Deschutes County. J. R. Campbell, Judge.
Joseph Larkin, Redmond, argued the cause and filed a brief for appellant.
Charles R. Marsh, Bend, argued the cause and filed a brief for respondent.
The plaintiff filed this proceeding asking for a declaration of the respective rights of the parties to a parcel of real property in Bend and for general equitable relief. The court decreed that the plaintiff was the owner of the property subject to a lien in favor of defendant Dymple Ferguson Vance. Plaintiff appealed from that portion of the decree which gave defendant a lien on the property.
The controlling facts are not in dispute. R. A. Ferguson, plaintiff's father, died intestate on September 26, 1960, survived by his widow Dymple Ferguson, hereinafter referred to as the defendant,*fn1 and two adult sons by a prior marriage, his only heirs at law. Defendant was appointed administratrix of her husband's estate. At his death Ferguson was the owner of the property involved in this suit, a dilapidated house, which had been rented intermittently.
Defendant, apparently under the mistaken belief that upon Ferguson's death she became the owner of this property by right of survivorship, did not include the property as an asset of the estate, although it was
listed in the inventory for tax purposes. Shortly after Ferguson's death defendant decided to move into this house, but before doing so had it extensively repaired so as to make it livable. Plaintiff and his brother knew of her plans and of the repairs and did not object.
Ferguson's estate was closed on April 3, 1963. Shortly thereafter the heirs discovered that they owned the property and their attorney discussed the status of the property a number of times with defendant's attorney. From that time defendant was aware that there was a question about her title to the property, but neither she nor the heirs took any formal steps to resolve the problem. Defendant, who had remarried, continued to occupy the premises with her husband and made further improvements to the property.
In October, 1970, plaintiff, who had in the meantime acquired his brother's share in the property, made a formal demand upon defendant for possession. On December 31, 1970, he filed this suit.
Defendant, in her answer, claimed title by adverse possession and also on the ground that plaintiff was estopped to assert his claim. In the alternative defendant asked that, if the court should decree that plaintiff owned the property, she be given a lien thereon for mortgage payments, taxes, and the value of the improvements she had made while in possession.
The trial court held that defendant's claims based on adverse possession and estoppel were not supported by the evidence. The court decreed that plaintiff owned the property and held that defendant was entitled to recover the taxes she had paid and the amount expended in retiring the mortgage which had encumbered the ...