[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 145 Suit by George Jensen and Eline Jensen, his wife, of Port Alexander, Alaska, against George Jensen and Della E. Jensen, his wife, of Salem, Oregon, and others to cancel deeds executed by named defendants purporting to convey plaintiffs' property. From that portion of decree canceling deeds as imposed a lien upon a portion of the property in favor of defendant Samuel H. Probert and Minnie Probert, his wife, for permanent improvements placed thereon, plaintiffs appeal.
REVERSED. This is a suit by the plaintiffs, George Jensen and Eline Jensen, husband and wife, to cancel deeds as clouds on the plaintiffs' title to land. The decree of the circuit court cancelled the deeds and decreed that the plaintiff George Jensen is the owner in fee of the premises, but it imposed a lien upon a portion of the same in the sum of $1,500 in favor of the defendant Probert in compensation for the value of the permanent *Page 146 improvements placed thereon by him. The plaintiffs appeal from that portion of the decree which impressed the lien on plaintiff Jensen's property.
The facts are unique. On February 17, 1926, one Egil Olsen, being then the owner of the property described in the complaint, conveyed it to the plaintiff George Jensen who thereafter, as owner, paid the taxes and assessments against the property.
On January 21, 1941, the defendant George Jensen who enjoyed the same name as the plaintiff George Jensen, being of an enterprising and fraudulent disposition, purported to convey the property by warranty deed to Hollis Vick for $200. The defendant George Jensen had no right, title or interest in the property. The circuit court so held and no appeal has been taken by the defendant George Jensen, or by any other party defendant. It is therefore unnecessary to review the evidence upon that issue except to say that we are in entire accord with the finding of the trial court.
On April 11, 1941, Hollis Vick purported to convey a portion of the property by warranty deed to the defendants Hemann. We shall, for convenience, designate that portion as the "Hemann tract." On April 29, 1941, Hollis Vick purported to convey the balance of the property to the defendant Samuel H. Probert by warranty deed. We shall designate that portion as the "Probert tract." It is properly conceded by the plaintiffs that the defendants Vick, Hemann and Probert acted in entire good faith. There was nothing in the record title to indicate that the George Jensen who deeded to Vick was not the George Jensen who owned the property. Hemann and Probert each took out title insurance policies, insuring to them a fee simple title. *Page 147 No improvements have been made upon the Hemann tract and the cloud upon the plaintiff's title by reason of the respective deeds was properly removed by decree of the trial court. The plaintiff George Jensen is the owner in fee of that tract. The defendant Probert in good faith constructed a small house upon the Probert tract. As to that tract also, the court cancelled the deeds as clouds on the title of plaintiff Jensen, but the decree provided further:
"* * * that there be and there is hereby impressed a lien on the premises hereinafter described as the Probert Lien tract in the sum of ONE THOUSAND FIVE HUNDRED AND NO/100 ($1,500.00) DOLLARS; said lien being in favor of defendant Samuel H. Probert and being in compensation for the value of the permanent improvements placed on said Probert Lien Tract by defendant Probert, and said sum is hereby fixed as the net value of such improvements after deducting from the whole value thereof the value of the use and occupancy of the said Probert Lien Tract for the period during which defendant Samuel H. Probert has been in possession thereof."
The plaintiffs Jensen had no knowledge of the fraudulent conduct of the defendant Jensen, nor of the existence of any of the deeds to Vick, Hemann or Probert. It does appear that in 1939 the plaintiffs were informed by a third party that another George Jensen had claimed to be the owner of the property. The defendant Jensen never took possession of the property and apparently was only upon it on two or three occasions. On the last occasion, in the fall of 1939, he told Mrs. Lentz, who lived on the adjoining property, that he owned the property, but admitted that he had no deed. Mrs. Lentz advised that he had the wrong property *Page 148 — "the wrong lot or wrong block number." Mrs. Lentz never saw him again until the day of the trial.
The plaintiffs resided in Port Alexander, Alaska, and only occasionally visited in Salem at the home of Mrs. Jensen's father, Egil Olsen. They had no knowledge that anyone had taken possession of the property, or that any improvements had been made thereon until September, 1941, when the plaintiff Eline Jensen returned from Alaska and discovered that Probert had constructed a small house on plaintiff's land. She promptly consulted an attorney and thereupon this suit was brought to remove the cloud from plaintiff's title.