Opinion of the Court-Prim, J.

upon one of its steamboats from Fisherton, W. T., to Astoria, Oregon, one chest of the value of five dollars, and the articles contained in said chest. The description and value of said articles are as follows, to wit: Gold and currency one hundred and ten dollars, one overshirt of the value of three dollars, one red undershirt of the value of two dollars and fifty cents, one pair of flannel drawers of the value of two dollars and fifty cents, one pocket knife of the value of two dollars and fifty cents, amounting to the sum of one hundred and twenty-five dollars. That said plaintiff has demanded from said defendant said money and property, but said defendant has neglected and refused to deliver the same to plaintiff. That said plaintiff has been at great trouble and expense in tracing and searching for his said property, to wit, the sum of twenty-five dollars, and at the expense of employing attorneys to bring and prosecute this action, to wit, in the sum of twenty-five dollars."

The first assignment of error is well taken. The first cause of action is for wrongfully carrying away certain personal property from Fisherton to Astoria, but there is no allegation that it was either the property of the plaintiff or property in which he was in any way interested. Nor is there any allegation that it was wrongfully taken from the plaintiff. Possession will not be presumed to be unlawful until it is shown to be so. In fact, the possession of personal property is prima facie evidence of ownership in said property, either special or general. The latter part of the complaint contains this expression, "That said plaintiff has been at great trouble and expense in tracing and searching for his said property." This allegation has reference to property which had already been described, and the words "his said property" could not enlarge those allegations. It is also a well settled rule of pleading, that a pleading must be construed most strongly against the pleader. There being no cause of action stated in the complaint it was not a defect which was waived by answering or cured by verdict.

The judgment is reversed and the cause remanded to the court below for further proceedings.

Statement of Facts.

LUCIEN REMILLARD ET AL., APPELLANTS, v. C. H.
RESPONDENTS.

PRESCOTT ET AL.,

MISTAKE IN DEED-GRANTOR.-In order to show a mistake in a deed, it
must be shown that the grantor was a party to the mistake.
IDEM-DEGREE OF PROOF.-In order to establish a mistake in a deed, it is
necessary that the mistake be shown by clear and convincing proof, since
the evidence must overcome the strong presumption existing in favor of
written instruments, which should not be annulled by uncertain and
contradictory testimony.

ESTOPPEL-PLEADING.-An estoppel, to be relied upon, must be pleaded
where there is an opportunity to plead it.

APPEAL from Union County.

This is a suit in equity, originally brought by the appellants, Lucien and Edward Remillard, who claim to be the legal owners of an undivided half and equitable owners of the other half of lot No. 4, of block No. 1, in the town of Union, to compel the respondent Prescott to convey to them the undivided half of said lot 4. Prescott having subsequently begun an action to eject the appellants from lots 4 and 5, in said block, and the appellants having filed a cross-bill to enjoin said action, claiming an equitable defense as to lot 4 in both appellants, and as to lot 5 in the appellant Lucien Remillard, the two suits were, by order of the court, consolidated.

The facts alleged are in effect: That in the month of March, 1865, one A. C. Craig purchased of J. A. J. Chapman, respondent, lots 4 and 5, in block No. 1, in the town. of Union, Union county, and went into the possession thereof; that thereafter, on March 3, 1865, no deed having been made by Chapman to Craig therefor, and Craig being absent from home, Prescott, acting for and in behalf of Craig, on his own motion, procured of Chapman a deed for said lots in fulfillment of said contract of purchase, but that by mistake, inadvertence, or at the solicitation of Prescott, said deed of conveyance was executed by Chapman to Prescott and Craig, when it should have been to Craig alone; that on, 1872, Craig conveyed, for a valuable consideration, lot 4 to respondent E. Remillard,

Statement of Facts.

and E. Remillard conveyed the same to respondent L. Remillard, on, 1874, and on May, 1877, L. Remillard reconveyed an undivided half thereof to said E. Remillard, and that they are now the owners thereof; that Craig, for a valuable consideration, conveyed lot 5 to E. S. McComas, and McComas conveyed to L. Remillard, who is now owner of the same; that appellants and their grantors have at all times since March 3, 1865, had full and undisturbed possession of said lots Nos. 4 and 5, and claimed title and had the exclusive use and occupation thereof, Prescott having full knowledge and information thereof; that Prescott advised and procured appellants and their grantors to purchase said lots from Craig, and acquiesced in the purchase and possession thereof, with full knowledge, and acquiesced in, and received large sums of money from appellants and their grantors for buildings and improvements put upon said lots with knowledge that appellants and their grantors claimed to be sole owners thereof; that appellants and grantors have paid all taxes thereon since 1865; that lot 4 is worth one thousand dollars, and lot 5 is worth two hundred dollars; that neither appellants nor their grantors had any knowledge that Prescott claimed any interest therein, or had any title thereto; that Prescott had knowledge of each of said conveyances at the time they were made, and made no objection thereto, and has been living in and near said town of Union ever since 1865 most of the time; that he has been advised of said mistake or misdescription in said deed, and requested to rectify it, but refuses to do so; that Prescott, on March, 1878, procured a Ideed from one Frederick Nodine and wife to said lots 4 and 5.

Prescott, by his separate answer, denies all the material allegations of the complaint, and sets up as a further defense that in 1863 Prescott and Craig purchased lots 4 and 5, and thereafter erected buildings thereon, and occupied the same as a saloon; that defendant Prescott paid to Craig four hundred and fifty dollars towards erecting said building, and that Chapman properly executed said deed of March 3, 1865, to Craig and Prescott, and that the said

Argument for Appellant.

deed was duly recorded in the county records; and for a further defense that Chapman was on March 1, 1865, largely indebted to Blaumer & Rosenblat, and that said Blaumer & Rosenblat sued Chapman, and attached said lots 4 and 5 on that day; that on the sixth day of March, 1865, Chapman gave a delivery bond for the property, and Nodine and Bennington were two of the sureties thereon; that Chapman, in consideration therefor, and of the release of said property from attachment, conveyed to them, Nodine and Bennington, said lots 4 and 5, with other property; that said Bennington deeded his interest to said Nodine, and said Nodine and wife to Prescott, in January, 1878, which deeds were duly recorded.

It is also alleged as master of estoppel against the appellants that Nodine, in the fall of 1867, published a notice calling on all persons to come forward on a day mentioned, and claim any right or title they might have in any of said. lots, that he was going to have them sold at public sale; but that Craig did not make any claim to them, and that the same were sold to Nodine, and that Prescott claims title to the whole of said lots 4 and 5. The appellants filed a demurrer to the separate defense in the answer, setting up title in Prescott from Chapman through Nodine and Bennington, and setting up matter in estoppel. The demurrer was sustained as to the estoppel and overruled as to the other defense. Thereupon the appellants filed their reply, denying all the material allegations in the answer. Upon the trial the court found that there was no equity in the bill, and it was therefore dismissed. From that order this appeal is taken.

Baker & Eakin, for appellant:

Where a person undertakes to act for another and takes a conveyance in his own name which he undertook to obtain for another, equity will consider it a trust for his principal. (6 Paige's Ch. 355; Hill on Trustees, 144.) If A. purchase an estate with his own money, and the deed is taken in the name of B., a trust results to A., and may be proved by parol. (1 Johns. Ch. 582; 6 Paige's Ch. 355; 2 Johns. Ch.

Argument for Respondents.

405; Lomax Digest, 200; 4 Kent's Com. 306; 2 Story's Eq. Jur. 1201, note 2; 5 Barb. 51; 21 Ohio, 547; 16 Barb. 376; 6 Or. 204.)

Where the owner of real estate suffers another to purchase the estate from a third person, and erect valuable improvements thereon under the erroneous belief that he has a good title, and intentionally conceals his title from the purchaser, he is estopped from thereafter setting up his legal title. (3 Paige's Ch. 546; 1 Johns. Ch. 354; Bigelow on Estoppel, 508.) Even though his deed is recorded. (Bigelow on Estoppel, 466, 533; 46 Texas, 371; 12 Met. 494.) A sheriff acquires no possession or title to real estate by attachment. The attachment becomes only a lien; and if released before execution issues, it leaves the title unaffected. (5 Or. 46.)

Sterns & Balleray, and F. M. Ish, for respondents:

To establish a resulting trust in a case like this, it is necessary to show mistake on the part of the common grantor, and mala fides on the part of the person procuring the deed to himself. (Lewin on Trusts, 201; Brown v. Kennedy, 33 Beav. 133; Phillipson v. Kerry, 32 Beav. 544; Kerr on Fraud and Mistake, 429.) Or a mutual mistake of the parties. (1 Perry on Trusts, sec. 186, 217; Andrews v. Essex Ins. Co., 3 Mason, 10; Bradford v. Romney, 30 Beav. 431.) The mistake if any, must also be clearly proved and put beyond cavil, as it operates to vary a written instrument. (Holmes v. Constance, 12 Ver. 279; Gillespie v. Moon, 2 Johns. Ch. 596; Atty. General v. Sitwell, 1 Young & Collyer, 583; Tucker v. Madden, 44 Maine, 206; Hillman v. Wright, 9.Ind. 126; Linn v. Balkey, 7 Ind. 69; Ruffner v. McConnell, 17 Ill. 212.)

Or there must have been fraud and circumvention of the common grantor Chapman by Prescott in obtaining the deed. If a resulting trust is to be established on account of fraud, the fraud must be alleged, and clearly, plainly, and specifically made out. Facts constituting fraud must be alleged. (Harding v. Handy, 11 Wheat. 103; Conway v. Ellison, 14 Ark. 360; Pendleton v. Galloway, 9 Ohio, 178; Bell