the sum of $270 is now due, or to become due, in United States gold coin, said demand and account being hereafter specifically set forth and stated. That it is the intention of the said R. J. Rowland to hold a lien upon the premises hereinbefore described. And that it is his intention to claim and hold said lien, not only upon such buildings, erections, and superstructures, but also upon the land upon which the same are erected, viz. said lots 18 and 19, in block 11, in said Arbor Lodge. The following is a true and correct statement of the account and demand due the claimant herein:

For labor performed...
For material furnished....

Total amount of debts......

Deductions.

Paid in cash at different times, aggregating ..

Balance now due......

.$200 225

.$425

.$150 .$270

"That thirty days have not elapsed since the completion of said building and work. [Signed] "R. J. Rowland.

"Properly verified."

J. F. Boothe, for appellants. Dell Stuart, for respondent.

PER CURIAM. This is a suit in equity to foreclose a mechanic's lien upon the lots described in the complaint. The facts show that during the year 1892 the defendant William L. Harmon entered into a contract with the defendants Killam & Hewton, as copartners, by the terms of which they undertook to erect for him a dwelling house upon lots 18 and 19 for the sum specified; that while constructing said building they entered into a contract with the plaintiff Rowland to furnish the material and do the plastering and foundation work of said house for the sum of $240; that on the 27th day of October, 1892, the plaintiff filed with the recorder of Multnomah county a notice of lien upon said dwelling house and property for the sum of $270.

The first objection assigned is that the notice of plaintiff's lien is defective, in not naming the person to whom he furnished the materials. This objection is based on section 3673, Hill's Code, which provides, among other things, that the claim filed shall state "the name of the person to whom he furnished the materials." It may be admitted that the statement in the notice to which the objection applies is faulty and illy constructed, but, in view of the fact that by said section the contractor is made the agent of the owner, its meaning is plain, and is easily made to so appear by transposing some of its words. We think the notice of the lien informs the defendant Harmon and the public that the materials were furnished by virtue of a contract made with him through his agents.

The next objection is that the plaintiff's notice of lien was not filed within the statutory

period. Upon examination of the facts, we think, as the court below found, that it was so filed.

The last objection is that the notice of lien "does not contain a true statement of claimant's demand after deducting all just credits and offsets." This is based on the ground that the notice stated $150 as the sum to be credited, when the court found that the true sum was $152.50. The facts show that there was a conflict in the evidence as to the amount that had been paid on the contract, the plaintiff claiming that he had received in cash at different times $150, and the defendant Killam claiming that he had paid $152.50. The court found that the defendant should have been credited with $152.50, under the rule of the preponderance of evidence, but that the plaintiff was neither negligent nor willful in failing to give credit for the disputed sum of $2.50, and that his contention was made in good faith. These facts do not bring the case within Nicolai Bros. Co. v. Van Fridagh, 23 Or. 149, 31 Pac. Rep. 288, so as to invalidate the lien. The decree is affirmed.

(24 Or. 542)

CLAYSON v. CLAYSON. (Supreme Court of Oregon. Oct. 23, 1893.) PROBATE OF FOREIGN WILL-REQUISITES.

1. Hill's Code, § 3082, requires a foreign will devising land located in Oregon to be executed and proved according to its laws. Section 3083 provides that copies of such will "and the probate thereof" shall be recorded as wills executed and proved in Oregon. Section 731 provides that a judicial record of a foreign country may be proved by a copy certified by the person having custody thereof, with the seal of the court affixed, and with the judge's certificate that the certificate is properly made by the person having legal custody of the original, and also the certificate of the officer having custody of the great seal of the government that the court whose judicial act is certified had jurisdiction to perform the same. Hold that, where the proof on which foreign probate of a foreign will devising land in Oregon was granted did not show that the alleged will was executed and proved according to the laws of Oregon, and the record of the foreign probate was not authenticated in accordance with section 731, such will was not entitled to probate and record in Oregon.

2. The fact that such will and the foreign probate thereof were prepared and certified under amendments to sections 3082 and 3083 does not entitle it to probate and record in Oregon, such amendments not being in existence when testator died, and the will was admitted to probate in the foreign country.

Appeal from circuit court, Clackamas county; Frank J. Taylor, Judge.

Proceeding by Emma Jane Clayson against Charles Clayson. From a judgment of the circuit court reversing an order of the county court dismissing the proceeding, defendant appeals. Reversed.

A. S. Dresser and E. Mendenhall, for appellant. Joseph Simon, for respondent.

LORD, C. J. This is a proceeding brought in the county court of Clackamas county to

have the will of W. H. Clayson, a nonresident decedent, admitted to probate, and to have ancillary letters of administration with the will annexed issued thereon to some suitable person, and to have the defendant, Charles Clayson, administrator of the estate of such decedent, removed. A brief statement of the facts is essential to the determination of the question involved. It appears from the transcript that W. H. Clayson, who was an inhabitant and resident of England, died in that country on the 6th day of October, 1890, leaving an estate therein, and also leaving an estate consisting of real property in Clackamas county, Or.; that the deceased left a will, dated September 5, 1889, with a codocil thereto, dated October 7, 1889; that said will and codicil was duly probated, proved, and registered in the principal probate registry of her majesty's high court of justice in England, and letters testamentary duly granted thereon to Emma Jane Clayson, one of the trustees, and executrix therein named, who, on the 13th day of January, 1891, was duly qualified and sworn to execute the said will, and is still acting in England as such trustee and executrix; that on the 11th day of March, 1891, Charles Clayson, the appellant, of Portland, Or., filed a petition in the county court of Clackamas county, in which he represented, inter alia, that the said W. H. Clayson died intestate, leaving an estate in said county, and praying for the appointment of himself as administrator of said estate; that he was thereupon duly appointed, and on the 31st day of March, 1891, qualified as such administrator; that on the 4th day of September, 1891, Emma Jane Clayson, through her attorneys, filed in the said county court her petition for the probate of the will of W. H. Clayson, deceased, and the appointment of some suitable person as administrator with the will annexed, and for an order removing Charles Clayson as administrator, and revoking his letters of administration. Filed with her petition, and forming a part thereof, is a paper alleged to be a duly-authenticated copy of said will and codicil, with the probate thereof. There are other facts connected with these proceedings, but their statement is not deemed material to our inquiry. The transcript also shows that the appellant filed an answer, in which he denied either absolutely or upon information and belief substantially all the allegations of the petition, and alleged some new matter, which was denied in the reply. When the petition came on for hearing the petitioner offered in evidence an instrument purporting to be a certified copy of the last will of W. H. Clayson, deceased, with the probate thereof in the principal probate registry of her majesty's high court of justice in England, which the court refused to allow, holding, as indicated by its order,

that such instrument was not authenticated as required by law, and is not entitled to probate or record in this state, and thereupon dismissed the proceeding. From this order an appeal was taken to the circuit court, which reversed the order of the county court, and remanded the case for further proceedings therein. From the decree reversing said order this appeal was taken.

The question to be determined is whether, upon the facts as herein disclosed, the instrument offered in evidence as a certified copy of the last will and testament of W. H. Clayson, deceased, is entitled to be admitted to probate or record in this state. The principle is elementary that the title and disposition of real property is exclusively subject to the laws of the country where it is situated, which alone can prescribe the mode by which the title to it can pass from one person to another. "The validity of every disposition of real estate," says Sir William Grant, "must depend upon the law of the country in which that estate is situated." Curtis v. Hutton, 14 Ves. 537; McCormick v. Sullivant, 10 Wheat. 201; Story, Confl. Laws, § 424. Real property may be conveyed by a will or by deed, but in either case, to have that effect, it must be executed according to the laws of the country where the property is located. Real property is never for an instant without an owner. When a person dies leaving real property, the title to it vests eo instanti in his heirs, unless he has made a will conformable to the law of its situs, making a different disposition of it from that which the law would otherwise make. At the time of the testator's death, and also at the date of his alleged will, section 3082, Hill's Code, required a foreign will, devising real estate located in Oregon, to be executed and proved according to its laws. Said section provides that "any person not an inhabitant, but owning property, real or personal, in this state, may devise or bequeath such property by last will, executed and proved according to the laws of this state." A person not an inhabitant, but owning real property in this state, who died in a foreign country, and left a will devising such property, and the will was admitted to probate in that country, its execution and the proof thereof must be sufficient, if made in this state, to convey real property therein, before the heirs will be divested of their title to it. The probate of a will in one state does not establish its validity as a will devising real property in another state unless the laws of the latter state permit it. It is essential, therefore, in order that a foreign will be effective to convey real estate situated in Oregon, that it not only be executed in the manner prescribed by the law of the state, but also that it be proved in the foreign jurisdiction in the manner required by such law. When a foreign will has been executed and proved in the foreign court according to the laws

of this state, the next step required to be taken in order to give it effect is to present a copy of it and the probate thereof, duly authenticated, to the county court in which the land lies, so as to entitle it to be admitted to record. Section 3083 provides: "Copies of such will, and the probate thereof, shall be recorded in the same manner as wills executed and proven in this state, and shall be admitted in evidence in the same manner and with like effect." Woerner, Adm'n, § 493. In the light of section 3082, the words "the probate thereof" include the proof of the will before the foreign tribunal, and its order admitting it to probate. There must be a copy of the will and a copy of the evidence upon which such order was made, showing that in the execution and proof of the will the requirements of the law of this state have been complied with; but before copies of such will and the probate thereof in the foreign jurisdiction can be admitted in evidence they must be duly authenticated. There is nothing in section 3083, supra, to indicate the manner in which these copies are to be authenticated, nor is it necessary that there should be. A will admitted to probate is a judicial record, and section 7311 provides how a judicial record of a foreign country must be proved. It is clear, then, under the sections we have been considering, supra, that before a foreign will can be admitted to record it must be shown by authenticated copies of the will and of the evidence upon which the foreign probate was granted that the will was executed and proved according to the laws of this state. Mr. Woerner says: "In many states [among which he includes Oregon] it is affirmatively provided that the foreign probate is conclusive only in so far as the will concerns personal property. To pass title to real estate it must appear, either by proof furnished in the forum loci rei sitae or by the authenticated copy of the evidence upon which the foreign probate was granted, that in the execution, attestation, and proof of the will the requirements of the law of the state in which the land lies has been complied with." And again, unless the foreign probate is made conclusive as to real property by the statute, he says "it must affirmatively appear from such foreign probate, or other proof, that the law of the forum has been observed in making and proving the will, in order to give validity to its disposition of real estate." The validity of the will must be determined by the laws of the state in which the property is

Section 731 provides that a judicial record of a foreign country may be proved by a copy thereof, certified by the person having custody thereof, with the seal of the court affixed thereto, and with the judge's certificate that the certificate is properly made by the person having legal custody of the original, and also the certificate of the officer having custody of the great seal of the government that the court whose judicial act is certified had jurisdiction to perform the same.

situated, unless such laws make the foreign probate conclusive. Robertson v. Pickrell, 109 U. S. 610, 3 Sup. Ct. Rep. 407. As the facts disclose that the death of W. H. Clayson, and also the probate of his will in the foreign jurisdiction, occurred while the statutes cited were in force, it results, if such will is to have the effect to convey real estate in Oregon, that it must be shown to the satisfaction of the county court, either by proof furnished to it or by certified copies of the will and the probate thereof, showing that in the execution, attestation, and proof of the will the requirements of the law of this state were observed, and that the record of such probate-it being a judicial record-be duly authenticated, as required by section 731. The paper offered in evidence purporting to be the last will of W. H. Clayson does not meet these requirements. The proof upon which the foreign probate was granted is not disclosed so as to show to the court that the alleged will was executed and proved according to the laws of Oregon, nor is the record of the foreign probate authenticated so as to show that the court or officer whose judicial act or proceeding is certified had jurisdiction to probate the same, etc., as prescribed by said section 731. In fact, the will and codicil of W. H. Clayson and the foreign probate thereof presented to the county court were prepared and certified under the amendments of February 20, 1891, to sections 3082 and 3083, supra; but, as those amendments were not in existence when Clayson died and his will was admitted to probate in England, and as there is nothing retroactive in such amendments, they can have no application to the present case, as, in the absence of express words to that effect, a law can only operate upon future, and not upon past, transactions. From these considerations it follows that there was no error in refusing to admit such alleged will to probate and record, and that the decree of the circuit court be reversed, and the cause remanded for such further proceedings as may be deemed proper and not inconsistent with this opinion.

(13 Mont. 250)

HORSKY v. MORAN. (Supreme Court of Montana. Sept. 5, 1893.)

EJECTMENT-JUDGMENT ON PLEADINGS.

Plaintiff became the purchaser in 1874 of lots which, by the survey under which he purchased, were contiguous. On a survey in 1885 it was found that there was ground between these lots, for which piece plaintiff brought suit. He alleged adverse possession of such piece from the time of his purchase, but in such an obscure way as to require a construction of certain deeds, in connection with other evidence, to get exact knowledge of the meaning of such allegations. The answer denied actual occupation by plaintiff of such fractional piece previous to the later survey, alleging that it did not lie between the lots purchased by plaintiff, and that hence the pos session of those lots purchased by plaintiff could not have included possession of the

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Joseph Horsky against Patrick Moran. From a judgment for plaintiff, defendant appeals. Reversed.

Statement of the case by HARWOOD, J.: Judgment was rendered in favor of plaintiff on the pleadings, and therefore, first of all, irrespective of the questions of law, we must ascertain from an examination of the allegations of the complaint, and the denials and averments of the answer, whether any material issues of fact are raised by the answer, as contended by appellant, for, if such issues are raised, judgment on the pleadings would not be 'proper. The complaint and answer are somewhat elaborate, and in quite compact narrative form. Therefore, in order to scrutinize each allegation and denial distinctly, we will set the same down in the order alleged, and number them for refer

ence.

The complaint alleges: (1) That on February 17, 1875, plaintiff acquired ownership and possession of lot 20, block 37, fronting "37 feet, more or less, on Main street," and running back 90 feet, more or less, to, and bounded on the east by, Jackson street, on the north by lot 21, and on the south by lot 19. (2) That on the 7th of May, 1874, plaintiff became the owner of lot 18, same block, "being 31 feet, more or less, on said Main street," and bounded on the east by Jackson street, on the north by lot 19, and on the south by lot 17. (3) That on the same date (May 7, 1874) plaintiff became the owner and in possession of lot 19, same block, fronting "35 feet, more or less, on said Main street," and bounded on the east by Jackson street, on the north by lot 20, and on the south by lot 18. (4) "That on said lastnamed date, (May 7, 1874,) plaintiff also became the owner and possessed of a fractional piece of ground, should the same be so regarded, situate between said lots numbered 19 and 20, in said block, containing 21.05 feet, more or less, on said Main street, and extending back to said Jackson St." (5) That on May 6, 1874, plaintiff became the owner and possessed of lot 17, same block, "being 34 feet, more or less, on said Main street," and bounded on the east by Jackson street, on the north by lot 18, and on the south by lot 16; all of said land being in Helena town site, Lewis and Clarke county, Mont. (6) "That in truth and reality the said lots owned and possessed by plaintiff and his predecessors in interest composed 161 feet frontage on Main street, and running back to said Jackson street, according to the original, established, and recognized boundaries of said lots." (7) "That according to an accurate measurement thereof the

ignated in the deed therefor by M. F. Truett, then probate judge of the county aforesaid, 21.05 feet; that according to the said lots and boundaries thereof, according to the calls in said deeds from said Truett, as such probate judge, no excess whatever existed; and that the title and possession of plaintiff and his predecessors in interest was acquired and obtained accordingly, and on account whereof the said lots, pieces, or parcels of land, and the dimensions thereof, were governed and controlled by the said boundary line so established and recognized by plaintiff and his predecessors in interest." (8) That, immediately upon becoming so the owner of said lots, plaintiff went into possession of said 161 feet of ground fronting on said Main street, running back, etc., "and, ever since, him and his tenants and agents have been in possession of the same." (9) That since, and long prior to, the year 1885, said premises have been inclosed by a good and substantial fence, and houses erected thereon, continuously, actually occupied and possessed, as aforesaid. (10) "That the lot, piece, or parcel of land described in the deed hereinafter mentioned to said defendant, and claimed by him, is inside of the inclosure of plaintiff, and is part and portion thereof, so inclosed since 1874." (11) "That said defendant, or no other person, except those claiming under plaintiff, and this plaintiff, have been in the seizure or possession of any part of said 161 feet of ground so inclosed as aforesaid." (12) "That for more than five years continuously and uninterruptedly prior to the obtaining by defendant of the deed hereinafter mentioned, and the institution of this action, this plaintiff and his tenants, and those claiming under him, have had said premises, and that portion thereof so deeded to and claimed by plaintiff, in actual possession, by means of substantial fences and inclosures, and the actual occupation and use thereof have been open, hostile, and notorious, and possession taken under the deeds of the predecessors in interest of this plaintiff." (13) That on August 20, 1873, Robert S. Hamilton, one of the grantors of plaintiff, being then in possession and actual occupation of said lots 18 and 19 in the block aforesaid, by inclosures thereof by substantial fences, according to the established and recognized boundaries thereof, "finding that the same, by actual measurement, exceeded the number of feet called for in the deeds, therefore, and for the purpose of avoiding trouble or contention concerning the same, duly made his application to the probate judge for the entry of said excess of ground according to the actual measurement, for the entry of and deed for the said portion of lots 19 and 18 so designated as a fraction, aforesaid; that the same was done while the said Robert S. Hamilton was so in possession and actual occupation of said lots." (14) "That at the time of said application the

said Robert S. Hamilton offered to pay, and tendered said probate judge, the fees and maximum price of said fraction, on account whereof he became and was, in equity and good conscience, the owner of, and entitled to a deed to, said premises or fraction, if any there be, and all of which was done for the purposes aforesaid, and without any intention of abandoning his title, according to the established and recognized boundaries of said lots 19 and 18." (15) "That this plaintiff, being the grantee of said Robert S. Hamilton, and succeeding to all his rights and equities in the premises, on the 15th of December, 1888, petitioned said probate judge to convey to this plaintiff the said alleged fractional lot so applied for by said Hamilton, and in pursuance of said petition and the application of his grantor, as aforesaid, said probate judge, on the date aforesaid, and while plaintiff was so in the possession and occupation of said premises as such grantee, made, executed, and delivered to plaintiff a deed for said premises." (16) "That notwithstanding the said ownership and possession by him had and held of said lots 17, 18, 19, and 20, and the alleged fractional portion thereof, the said defendant made his petition and application for a portion thereof so in plaintiff's inclosure as aforesaid, and, by his false and fraudulent representations in reference thereto, obtained from said probate judge a deed for a certain lot, piece, or parcel of land so embraced in said inclosure, to wit, said lot numbered 31 in block 37 of the Helena town site, according to the official survey approved September 12, 1885; that said deed is executed in due form of law, and has been ever since its execution, and is now, of record in the office of the county clerk and recorder of said county of Lewis and Clarke, state of Montana, and casts a cloud upon the title of plaintiff, greatly to his damage and injury." And upon those allegations plaintiff demands that title to said fraction be adjudged in him, and that defendant's deed therefor be canceled.

The answer to this complaint contains the following denials and affirmations: (1) Denies, on information and belief, that the several lots mentioned in said complaint, of which plaintiff alleges ownership, "as the same exist, and were shown upon the original plat of said town site in 1874-75, or for more than ten years thereafter, occupied the same position on the earth's surface as the position of the same named lots and block did at the date of the commencement of this action, and as they now occupy." (2) Denies, on information and belief, "that prior to September 12, 1885, the position of the bounding streets named in said complaint, to wit, Jackson street and Main street, were, according to any official survey or plat of said town site, in the same position on the earth's surface as they have been since September 12, 1885." (3) Denies the allegation that "said defendant, or any other person

except those claiming under plaintiff, or said plaintiff, have since 1874 been in the seizure or possession of any part of the 160 feet of ground mentioned in said complaint as being inclosed." (4) "Admits that the land occupied by plaintiff herein had been so occupied by plaintiff for a period of more than five years prior to the commencement of this action, but denies that such occupation, in so far as it relates to lot 31, block 37, was open, hostile, or notorious, or was adverse, or could be adverse, and denies that said possession thereof was taken under the deeds of the predecessors in interest of said plaintiff, or in any other manner than in subordination to the legal title of said land, which defendant alleges was and remained in the probate judge, in trust for this defendant, and none other, until the 11th day of December, 1888." (5) Denies that "said land had ever, prior to September 12, 1885, been officially platted, known, and designated as 'Lots 17, 18, 19, and 20,' and denies that there was, prior to September 12, 1885, any space, lot, piece, or parcel or fraction of land lying or existing between lots 19 and 20, block 37, or between either two or any of said lots numbered 17 to 21, and, on the contrary, alleges that prior to September 12, 1885, according to the official plat of said town site, then existing, the said named lots, to wit, 19 and 20, were adjoining lots, and consisted of no more or less than the number of feet frontage than as shown on said plat then existing, or then expressed in the deeds to the predecessors in interest of said plaintiff." (6) "Denies that in truth or in reality, or in any other manner, the lots mentioned in said amended complaint as numbered 17. 18, 19, and 20, as being owned by plaintiff herein, composed or included 161 feet frontage on Main street, and running back to Jackson street, according to the original, established,, and recognized boundaries, and denies that according to an accurate measurement said lots exceed the number of feet designated in the deeds therefor by M. F. Truett, the probate judge of the county aforesaid, 21.05 feet, or any other number of feet." (7) Defendant "admits that according to the calls of said deeds from said Truett, as such probate judge, no excess whatever existed, and admits that the title of plaintiff and his predecessors in interest was acquired and obtained accordingly, but denies that possession was taken accordingly, and denies that on account thereof, or any other account, as a question of law, or as a question of fact, the said lots, pieces, or parcels of land, or the dimensions thereof, were governed or controlled by any acts of plaintiff or his predecessors in interest, or by any other thing than the then existing plat, and the identical portion of the earth's surface, as shown and delineated thereon, and as expressed in said deeds, of which said plat constituted a necessary part; said plat being the original official plat, known