GRACE v. MCDOWELL. (Supreme Court of Oregon. Jan. 30, 1912.) 1. BROKERS_ (§ 71*)-COMMISSIONS FOR EXCHANGE-BASIS OF COMMISSION-VALUE OF PROPERTY RECEIVED. If defendant agreed to pay plaintiff all money over $9.000 which defendant received for his land, from a purchaser procured by plaintiff, and to take suitable city property in payment thereof, the actual value of the city property received in exchange, and not the price placed thereon by defendant and the purchaser, should be taken in determining the amount of plaintiff's compensation. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*] 2. EXCHANGE OF PROPERTY (§ 1*)-SALE OR EXCHANGE. If a price is fixed at which respective properties are to be exchanged, the transaction is a sale, but if no price is placed upon them, it is an exchange. [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 1, 2; Dec. Dig. 8 1.*] 3. EVIDENCE (§ 419*)-PAROL EVIDENCE CONSIDERATION OF DEED. As between the parties, the amount of the consideration expressed in a deed is only prima facie evidence of the consideration and the value of the property. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1912-1917; Dec. Dig. § 419.*] Appeal from Circuit Court, Jackson County; H. K. Hanna, Judge. Action by J. H. Grace against R. S. McDowell. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. This is an action to recover $4,025 as compensation for the sale of land. The cause was tried before a jury, and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant appeals. According to the facts set forth in the complaint, plaintiff and defendant entered into an oral contract, some time during September, 1908, in Jackson county, Or., whereby it was agreed that if plaintiff would procure a purchaser willing to buy a certain 630 acres of defendant's land in that county, defendant would pay all sums of money which the buyer should pay defendant therefor, over and above the sum of $9,000. It was further agreed as a part of the transaction that defendant would accept in payment for said 630 acres suitable property in Los Angeles, Cal. Plaintiff accepted the employment and agreed to endeavor to secure a purchaser. In November, 1908, plaintiff procured one Mary Fitz as purchaser for the tract of land, and thereupon defendant sold the tract to her for the sum of $13,100, and took in payment therefor certain Los Angeles property, which was then and there agreed upon between the said Mary Fitz and defendant to be worth the sum of $13,100, after deducting a mortgage thereon for $1,600. Defend ant executed and delivered to Mary Fitz his deed of conveyance transferring said tract and reciting a consideration of $13,100, and accepted in payment therefor deeds of conveyance of said Los Angeles property executed and delivered to him. Defendant by his answer, as his first defense, admits that a contract was made, but denies that he agreed to accept in payment for the 630 acres, any Los Angeles property or anything except $9,000 in money. He alleges that about November 1, 1908, at Los Angeles, Cal., plaintiff and defendant entered into an agreement whereby it was agreed to abrogate the first contract. Under the new compact plaintiff agreed to try and procure one Mary Fitz to exchange certain property for said 630 acres of land. Defendant, in turn, agreed to pay plaintiff a reasonable value for such services. The defendant asserts that these services were performed pursuant to said last-mentioned agreement and not otherwise, and that the value for such was $500 and no more. As a second separate defense, after admitting the matters contained in the first part of the answer, defendant denies that plaintiff produced a purchaser who was able and willing to pay defendant $13,100; or that Fitz that the Los Angeles property, which it was agreed between defendant and Mrs. he received for said 630 acres, was worth $13,100; or that the same should be taken as a payment of $13,100 upon the purchase price of said land. He alleges that plaintiff did procure said Mary Fitz to make an exchange of certain property owned by her, consisting of several distinct parcels in Los Angeles, for said 630 acres, and that the exchange was made; but that no price or value was agreed upon by Mary Fitz or defendant, as the price or value of either the land conveyed by him or the property conveyed by Mrs. Fitz; and that said transaction was merely an exchange of the land of the defendant for the property of Mary Fitz, the consideration of each conveyance being the conveyance made by the other; that the whole value of the property conveyed to defendant was $10,600, subject to a mortgage of $1,600; and that the only consideration for the transfer of said 630 acres by him to Mary Fitz was $9,000 and no more. In his reply, plaintiff denies the allegations of the answer except as alleged in the complaint. Upon the trial, plaintiff testified substantiating the allegations of his complaint to the effect that the contract was made on the train in Jackson county, Or., in the presence of Mr. Dunning; that defendant plainly stated that he would take good Los Angeles or Santa Ana property in exchange for his tract, and said, "I will give you all over $9,000;" and, further, "There would nothing please me better than to write you and that the latter told him what he asked for them, namely, the above-mentioned amounts; that after Mr. Fitz returned from Oregon the parties met and the contract was signed; that he never agreed to take any of the Los Angeles property at any particular price; and that the total market value of the same, which he received, was $10,600, subject to a mortgage of $1,600, making a net worth of $9,000. a check for $3,000, if you get me $12,000 on which the latter was to receive for his servthe property, for you will need it." Plain- íces in making the sale all that he could get tiff also testified that he produced a buyer above $9,000 in cash. He stated that nothfor defendant's tract of land, one Mary Fitz, ing was said in regard to an exchange; that to whom defendant sold the property, for when Mr. Grace afterwards presented the which he received in payment certain Los | Fitz deal, he and the plaintiff went to see the Angeles real estate acceptable to him. Plain- different properties, together with Mr. Fitz, tiff stated that he was present at their negotiations; that the parties went and looked at the properties, first visiting the Central Avenue property which was put in at $5,000, subject to a mortgage of $1,000, to which McDowell said: "That's all right;" that they next looked at the two-story house in which Mrs. Fitz lived, and the lot adjoining; that the same was put in at $5,000 clear, defendant saying, "That's all right; that is good property, and the price is all right;" that they then went to Fifty-Sixth street where Mr. May and Victor Fitz had two places which were put in at $2,600, subject to a mortgage of $600, and adjoining that on the next lot, a four or five room cottage put in at $2,200, to all of which defendant said: "That's all right. I will accept all this property." Plaintiff further testified that he came to Oregon with Gilson Fitz, a son of Mrs. Fitz, and showed him the land; that further negotiations were had, and that after their return to Los Angeles the parties met and figured up the above-mentioned properties, not including a vacant lot examined on Fiftieth street, and put the same in at the above-named figures aggregating $14,800, subject to mortgages of $1,600; that defendant said: "Why, Mrs. Fitz, you are not asking a fancy price for your property, and I will not for mine. I will give you my property of yours." Other witnesses testified tending to corroborate the testimony of the plaintiff in regard to the original agreement, and as to many of the details of the transaction. D. G. Fitz, witness for plaintiff, to the question, "Did Mr. McDowell at that time acquiesce in these prices that were fixed by you?" answered: "He did not object to any of them anyhow." On further examination this witness testified that the defendant offered to trade the land in Oregon for the Los Angeles property, if they would give a mortgage on the land in Oregon to offset the $1,600 mortgages. Mary D. Fitz, testifying for plaintiff, said that the latter brought the defendant and her together; that to the question, "Did you buy this 630 acres from Mr. McDowell?" she answered: "Why, I exchanged it, of course." And to the question, "What did you pay for it with?" answered: "I paid for it with our property in Los Angeles." On cross-examination, she said that the properties in Los Angeles were accepted by defendant, and that it was agreed that the values above mentioned should attach to the same in the trade. Defendant McDowell testified in his own behalf as to the making of the contract with plaintiff in October, 1908, by The testimony of several real estate men in Los Angeles, taken by deposition, was to the effect that the value of the Fitz property at that time was between $9,000 and $10,000. D. G. Fitz also stated in rebuttal that the prices named were the reasonable value of the California property. Porter J. Neff (Neff & Mealey, on the brief), for appellant. Gus Newbury, for respondent. BEAN, J. (after stating the facts as above). It will be noticed from the pleadings that the plaintiff and defendant allege different contracts; one agreement differing from the other mainly as to the sale of the tract of land for cash only. [1] Counsel for defendant contend that the price agreed upon between defendant and Mr. Fitz as the basis of the exchange of the property is not conclusive upon the question of the amount received by the defendant for the property in fixing the compensation plaintiff should recover for his services in obtaining a purchaser. The court was requested to instruct the jury to determine, from all the evidence in the case, the actual value of the real estate received by defendant, and to give plaintiff the excess over $9,000. The court refused to give such instruction and defendant duly saved an exception. The court instructed the jury as follows: "If you should find for the plaintiff under the original contract and find that it was agreed upon between the defendant and the parties who were negotiating the property that this property that was taken in exchange for his property was taken for the sum of thirteen thousand two hundred dollars, if you should find that that was the agreement between the parties at that time, then the plaintiff would be entitled to recover the difference between the nine thousand and thirteen thousand two hundred." In the different instructions given by the court, the jury were charged that they should take into consideration the reasonable value of the Los Angeles property, only in the event that they should find that the subsequent contract was made as claimed by de fendant. To all of these instructions an ex- [ property conveyed to defendant McDowell by ception was duly saved by defendant. Testi- Messrs. and Mrs. Fitz, arises between one of mony as to the value of the California prop- these parties and a third, plaintiff Grace, erty was introduced by both parties without who was not a party to the original contract objection, and defendant strongly contends and who was concerned therein only as a that this feature of the case should have broker. been submitted to the jury. This is the main question in the case. Plaintiff's counsel relies principally upon the case of Thornton v. Moody (Tex. Civ. App.) 24 S. W. 331. A careful examination of the latter case discloses that it differs from the case at bar, mainly in the fact that the defendant there in did not testify, and that no issue appears to have been raised as to the value of the property received by the seller; but that the value placed thereon was sanctioned as between the broker and the seller, and that the amount of the compensation claimed by the former was a fixed sum. * The pleadings raise the issue as to the value of this property and testimony upon this point was introduced at the trial. There was also evidence tending to show that the value of the respective properties was fixed solely for the purpose of facilitating the exchange, as a mere incident to the trade, and not with the intent to determine the real worth thereof. The actual value of the Los Angeles property is the correct basis for ascertaining the amount received by defendant in excess of $9,000. [3] As between the parties thereto, the amount expressed in the deed is only prima facie evidence of the value of the property, and may be rebutted. Negus v. Simpson, 99 Mass. 388. In such transactions it is but natural that each party should endeavor to slightly inflate the value of his property. If, in making the transfer referred to, McDowell and Mrs. Fitz had named the price of the real estate in Los Angeles at $8,000, we do not think that the plaintiff would have been bound thereby. Therefore we think that, under these circumstances, the defendant was entitled to have the question of the value of the California property received by him, submitted to the jury, and we think that there was error in this regard, and that the substance of the instruction re In Fagan v. Hook, 134 Iowa, 381, 111 N. W. 981, an action to rescind a contract of exchange wherein it was claimed that an agreement had been made fixing the value of the properties exchanged, and that this agreement was binding upon the parties, the court makes use of the following language: "Ordinarily, where the action is for the recovery of property, and its value has been agreed upon by the parties, the measure of damages is the quantum thus fixed. *If, on the other hand, the agreement is a mere trading contract, by the terms of which one party is to exchange certain property belonging to him for that of the other upon or by the payment of the difference, and to this end and for the purpose solely of accomplish-quested should have been given. As someing this result, but not to ascertain their actual values, estimates are placed on the respective properties, then neither party is bound by the values so estimated, and the measure of damages to be applied is that of quantum meruit. In other words, the values designated in the agreement to be binding on the parties must appear to have been specified as such, and not as merely incidental to some other purpose not involving the intention of deciding the true worth." [2] In determining whether there has been a sale or exchange of property, the criterion is whether there is a fixed price at which the things are to be exchanged. If there is a fixed price, then the transaction is a sale; but if there is not the transaction is an exchange. Tiedeman on Sales, § 12. Boyd v. Watson, 101 Iowa, 214, 70 N. W. 120, was an action by a real estate dealer for his commission of 5 per cent. on the purchase price of real property sold by him. Part of the purchase price was paid in town lots. It was held that the commission should be based upon the actual value of the lots shown by the evidence, and not upon the "nominal consideration" or "inflated trade value," and that this is the true rule. In the case at bar, the question of the value of the what in point, see the case of Caumisar v. Conley (Ky.) 60 S. W. 375. The trial court in their instructions to the jury, in several instances, limited this inquiry by them to the price agreed to in making the exchange. Other errors are assigned; one among them being to the effect that the evidence of offers received by Mrs. Fitz for her property was not admissible to prove value, but as such are not likely to occur again after the case has been thoroughly examined by counsel, we do not deem a discussion thereof necessary. For the reason above stated, it follows that the judgment of the lower court must be reversed and the cause remanded for a new trial, and it is so ordered. 1. LAMBERT v. MURRAY et al. (Supreme Court of Colorado. Jan. 6, 1912.) QUIETING TITLE (§ 37*)-ANSWER-EFFECT. alleging that he was the absolute owner in fee In a suit to quiet title, defendant's answer of the land described in the complaint under a tax deed, under which he had been in continuous possession, was equivalent to a denial of well as a claim of adverse interest in defendant. the ownership and possession of plaintiffs, as [Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 37.*] 35*)-POSSESSION OF 2. QUIETING TITLE ( PLAINTIFFS-STATUTE. Under Rev. Code, § 274, providing that an action may be brought by any person in possession of real property against any one who claims an adverse estate therein to determine such adverse interest, one bringing an action to quiet title must not only allege his title, but must aver his possession. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 73, 74; Dec. Dig. § 35.*] 3. QUIETING TITLE (§ 43*)—PLEADING-PosSESSION OF PLAINTIFFS. his commission as a notary expired some 10 years previous is insufficient. [Ed. Note. For other cases, see Acknowledgment, Dec. Dig. § 20.*] 9. EVIDENCE (§ 370*)-DEEDS ADMISSIBILITY. Under Rev. St. 1908, § 696, providing that unacknowledged deeds are admissible in evidence, where their execution is otherwise proved in the manner required by the rules of evidence, a deed insufficiently acknowledged was properly admitted in evidence, where the only objection to its admission was the want of a proper acknowledgment, though no preliminary proof of execution was given. [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 370.*1 In a suit to quiet title under Rev. Code, $274, providing that an action may be brought by any person in possession of real estate to determine adverse claims, plaintiff cannot be 10. TAXATION (§ 761*)-TAX TITLES-TAX put upon proof of his possession and ownership, DEEDS. unless defendant plead an adverse interest, but, where such adverse interest is set up, proof offered for sale for taxes on one day only, and A tax deed showing that the land was ofpossession is an essential to the maintenance struck off to the county on that day, is void on its face. of the action. [Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 43.*] In a suit to quiet title under Rev. Code, 8 274, providing that an action to quiet title may be brought by any person in possession, where defendant answered that he was owner in fee simple of the land described in the complaint, that he obtained his title by a tax deed, and has ever since remained in possession, and prayed that the complaint be dismissed and he be decreed owner of the lands, defendant did not set up an affirmative defense which waived his right to demand that plaintiffs prove possession, for his answer at most merely set up his adverse claim, and prayed for the relief which would be granted him, if plaintiffs failed. [Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 37.*] 5. QUIETING TITLE (§ 44*)—POSSESSION-PRE SUMPTIONS. Under Rev. Code, § 274, providing that any person in possession may maintain a suit to quiet title, actual, as distinguished from constructive, possession must be shown, save in the case of vacant land, and so in a suit to quiet title, where it did not appear that the land in controversy was vacant, mere proof of plaintiffs' title was insufficient, though raising an inference of constructive possession. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 89; Dec. Dig. § 44.*] 6. DEEDS (§ 36*)-SUFFICIENCY. A deed stating that J. R., in consideration of the sum of $150, grants, bargains, sells, conveys, and confirms certain described land unto a bank, contains sufficient words to constitute a conveyance of the land described. [Ed. Note.-For other cases, see Deeds, Dec. Dig. § 36.*] 7. DEEDS (8 38*)-DESCRIPTION-SUFFICIENCY. Where a deed described land by giving the quarter section, town, range, and meridian, according to government survey, so that it could be located without any reference to counties, it was immaterial whether the right or wrong county was mentioned in the description. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.*] 8. ACKNOWLEDGMENT (§ 20*) - WHO MAY TAKE. The statute providing that acknowledgment of a deed shall be taken before a notary public requires the notary to be one at the time of taking the acknowledgment, and so an acknowledgment taken before one who certified that [Ed. Note. For other cases, see Taxation, Dec. Dig. § 761.*] 11. TAXATION (§ 762*) -TAX TITLES - TAX DEED ASSIGNMENT OF CERTIFICATE OF SALE. certificate of sale, on which it was issued, had A tax deed showing on its face that the been assigned by the clerk in 1901, more than three years after the sale of the land for taxes, is void upon its face; an assignment by the clerk after a lapse of three years being a nullity under the law as it stood at the time of assignment. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 762.*] 12. TAXATION (§ 762*) - TAX TITLES-TAX DEEDS ASSIGNMENT OF CERTIFICATE. Where a tax deed recited that the land was sold in 1896, and that A. county, by J. A., its clerk, assigned a certificate of the sale in 1901, the assignment of the certificate was not the act of the county, but was the act of the clerk, who had power to assign such certificate only within the period of three years; and hence a tax deed based upon such assignment could not be sustained on the ground that the county as such could assign the certificate at any time. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 762.*] 13. TAXATION (§ 709*)-TAX TITLES-REDEMP TION. Where land was lawfully sold for payment of taxes and a certificate was issued, a tax deed issued to the purchaser and based on such certificate was void on its face, because the assignment of the certificate was made more than three years after sale, the owner of the land could redeem only upon payment of the taxes up to the time of the issuance of the tax deed. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 709.*] 14. TAXATION (§ 816*)-TAX TITLE-DECREE. On a finding for plaintiff, in a suit to remove a tax deed as a cloud upon title, it is error to render an absolute decree for plaintiff and a money judgment for defendant, but the court should order plaintiff to pay into court for defendant's use the amount found to be due, and, on compliance therewith, should render an absolute decree for plaintiff. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 816.*] Error to District Court, Washington County; H. P. Burke, Judge. Action by George Murray, M. C. Henneberry, and Clara W. Thompson, copartners, do For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes ing business under the firm name of the Bank | cisions of this court, the assertion of an adof Akron against W. T. Lambert. There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded. verse title in the defendant with a specification of its nature, coupled in the same defense with a denial of the possession of the plaintiff (if such a denial in necessary), is Allen & Webster, for plaintiff in error. J. E. McCall and Stuart & Murray, for de-sufficient to put the plaintiff upon proof of fendants in error. MUSSER, J. [1] This writ of error was sued out to review a judgment of the district court in favor of the plaintiffs, who are defendants in error here. The action was one to quiet title. The complaint was in the usual form. The answer consisted of five numbered paragraphs. The plaintiffs seem to insist that each of these paragraphs was a separate answer, while the defendant contends that they all constitute one answer. It is unnecessary to determine this. It will be assumed, as the plaintiffs seem to contend, that the third paragraph is a separate answer, and it will be spoken of hereafter as the answer. In this answer the defendant alleged that he was the full, absolute, and unqualified owner in fee simple of the land described in the complaint, and then stated perhaps unnecessarily, that he obtained his title by a tax deed from the county treasurer of the then county of Arapahoe. It is then alleged that, under and by virtue of the tax deed, the defendant took and ever since has remained in possession of the premises, and that he paid all taxes assessed thereon since the date of the tax sale, which, together with the sum bid at the said sale, amounted to the sum of $300. The allegations in the answer of ownership and possession in the defendant are in effect a denial of ownership and possession in the plaintiffs. Bessemer I. D. Co. V. Wooley, 32 Colo. 437, 440, 76 Pac. 1053, 105 Am. St. Rep. 91. The answer, therefore, which constituted one defense, not only asserted an adverse interest in the defendant, specifying its nature, but also denied that the plaintiffs were in possession of the premises. [2, 3] Section 274, Rev. Code (section 255, Mills' Code), under which the action was brought, reads: "An action may be brought by any person in possession by himself or his tenant, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate or interest." This statute is plain. The person who may bring such an action must aver his possession, coupled with his title to the premises. This the plaintiffs did. Before the defendant could put the plaintiffs upon proof of their possession and ownership, it was necessary for him to assert an adverse interest in himself. The defendant, in the answer under consideration, not only asserted an adverse interest in the premises, specifying its nature, but also denied the possession of the plaintiffs. These are the facts with reference to the pleadings under consideration. It is to these facts that the law must be applied. Under all the de his title and possession, and, under such circumstances, the proof of the one is as necessary for the maintenance of the action as the proof of the other. Wall v. Magnes, 17 Colo. 476, 30 Pac. 56; Phillippi v. Leet, 19 Colo. 246, 35 Pac. 540; Reynolds v. Campling, 23 Colo. 105, 46 Pac. 639; Mitchell v. Titus, 33 Colo. 385, 80 Pac. 1042; Lambert v. Shumway, 36 Colo. 350, 85 Pac. 89; Sayre v. Sage, 47 Colo. 559, 108 Pac. 160; Buckland v. Fielder, 48 Colo. 153, 109 Pac. 262; Empire Co. v. Bender, 49 Colo. 522, 113 Pac. 494. [4] No proof whatever was offered or admitted touching plaintiffs' possession, nor was it shown that the land was vacant or unoccupied. At the close of plaintiffs' case, a motion was made that the complaint and action be dismissed for the reason that the evidence was insufficient to sustain the allegations of the complaint, and because no proof had been submitted requiring the defendant to make any defense. This motion was overruled, and the defendant did not thereafter supply any deficiency in plaintiffs' proof. It is the contention of the plaintiffs that the defendant set up an affirmative defense and asked for such affirmative relief as to now preclude him from requiring that the plaintiffs prove possession. The weakness of plaintiffs' contention in this regard lies in the fact that the defendant did not set forth an affirmative defense in the nature of a crosscomplaint, nor ask for any relief except such as he was entitled to under the statute. It is plain from a reading of section 274, supra, that the purpose of such an action is to determine the adverse claim, estate, or interest of the defendant, and in this determination the relative merits of the two titles would be involved. The defendant set forth just what the statute required, namely, his adverse interest. In his prayer, perhaps unnecessarily, he asked that the complaint be dismissed; that he be decreed the owner of the lands described in the complaint; that the plaintiffs are without title, and for his costs. The determination of the adverse title would necessarily result in just what the defendant asked for, if he sustained his answer, so that his prayer asked for no other relief than he would have been entitled to if he had merely alleged his adverse title and omitted the prayer. To hold that, on account of his defense and prayer, he waived proof of possession by plaintiffs, would be to say that the assertion of his adverse title, which the statute required, would be such a waiver, and the statute, so far as possession is concerned, would be thus entirely abrogated. The plaintiffs base their contention upon the case of Relender v. Riggs, 20 Colo. App. 423, 79 Pac. |