By the Court,
Prim, J.:Felix G. Dorris, the appellant, who claims to be the equitable owner of lot 7 in block 25, of the city of Portland, brought this suit in the court below to compel respondents to convey to him the legal title of the undivided one half of said lot. The following facts are developed by the pleadings and evidence produced at the trial: On October 8, 1850, Daniel H. Lownsdale, being a settler upon the tract of land embracing the lot in controversy, sold and conveyed said lot by deed, for a valuable consideration, to one Hiram Wilbur, which was duly acknowledged by said Lownsdale, but not witnessed. At the time when this deed was executed Lownsdale had not completed his four years’ residence and cultivation upon said land, so as to entitle him to a patent under the act of congress of September 27, 1850, commonly called the donation law, under which he was seeking to acquire the title. Thereafter said Wilbur, for a valuable consideration, conveyed said lot to Lewis Day. On or about July, 1856, appellant bought said lot for a valuable consideration, and procured the same to be conveyed by said Day and wife to George P. and Felix G. Dorris. On October 9,1857, the appellant sold it to W. S. and B. B. Ingles, for two hundred dollars, and he and his wife conveyed the same to said Ingles by good and sufficient deed, which was duly witnessed, acknowledged and placed upon the records of deeds; that thereafter B. F. Smith, one of the respondents, having paid the full value of said lot and acquired the possession of the same by sundry mesne *273conveyances from B. R. and W. S. Ingles, conveyed the same to his daughter, Ella M. Smith. Respondents have remained in possession of said lot ever since, and have made many valuable improvements thereon; that in February, 1866, Lownsdale having died, and his heirs being the owners of the legal title to the tract of land embracing the lot in controversy, the respondent, Ella M. Smith, commenced suit in the circuit court of Multnomah county against said heirs, to compel them to convey to her the legal title of said land, claiming to be the equitable owner thereof through the said sundry mesne conveyances from Lownsdale to herself. The Lownsdale heirs appeared therein, but failed to answer the complaint and permitted a decree to be taken against them, according to the prayer thereof. In pursuance of said decree, they subsequently duly executed a conveyance of the legal title to her.
The complaint of appellant alleges that the said George P. and Felix G. Dorris were his minor children, and that appellant, being in the possession of the said lot for and on behalf of his said minor children, and supposing that he liad an interest or right to hold the possession of said land until his said children should become of age, executed the deed of October 9, 1857, together with his wife, to the said W. S. and B. R. Ingles, intending thereby to convey to them his said supposed right to the possession of said lot until his children should arrive at their majority; that on or about the year 1861, Felix G. Dorris, the said minor child of the appellant, and one of the grantees of said Day, died intestate, leaving the appellant his sole heir at law.
The complaint further alleges that all the allegations of the said complaint of Ella M. Smith in her suit against the Lownsdale heirs, so far as they refer to the conveyance by Lownsdale and mesne conveyances to Lewis Day, and from Day to George P. and Felix G. Dorris were true, but that all the allegations of the said complaint as to the deed from Felix G. Dorris were false and a fraud upon the right of the appellant; that Felix G. Dorris, one of the grantees of Day, never did convey his interest in the said land, but owned the same at the time of his death, and that the said quit*274claim deed of the appellant to Benj. R. and "William S. Ingles could pass, and was intended and understood to pass, no greater interest than he then had, which was- his supposed right to retain the possession until his said children should become of age, and that the appellant, as heir at law of his son, Felix G. Dorris, is now the owner of the equitable title and entitled to a conveyance of the legal title from the respondents.
The answer denies all the material allegations of the complaint except that in the said suit of respondent, Ella M. Smith, against the Lownsdale heirs, in which she obtained the decree compelling them to convey the legal title she in her complaint claimed to deraign her equitable title by and through the said conveyance from Lownsdale to Wilbur and mesne conveyances to Geo. P. and Felix G. Dorris, as alleged in the complaint, but avers that the said Felix G. Dorris was the appellant herein.
The answer, as new matter of defense, sets up that this suit was not commenced within twenty years from the time the cause of suit accrued. Also, that the suit was not commenced within five years from the date of the patent from the United States to Lownsdale to the tract of land embracing the tract in controversy, and that all the matters and things set out in the complaint upon which appellant claims relief occurred prior to the issuing of the patent, and that appellant’s claim for both these reasons is barred.
The answer also denies that the deed from the appellant to the Ingles was a quitclaim deed, and makes the said deed a part of the answer marked “ A.,” and alleges that by it appellant undertook to convey to the Ingles the fee-simple title to the land, as well as any interest he then had, ‘£ as any interest he might afterward acquire,” and in effect, that appellant ought now to be estopped to claim under any subsequently acquired title.
Alleges that the said deed was duly recorded and that the respondent, B. F. Smith, relying upon the said record, purchased the said lot. There is a further allegation in these words: “And he had not at the time of said purchase any notice or knowledge concerning the title thereto, except *275wliat appeared by the record as aforesaid.” There are also allegations that the appellant, knowing that the respondents were relying upon his said deed to Wm. S. and Benj. R. Ingles, stood by and allowed them to make valuable improvements on the land without giving them any notice of his title or claim to the same. The replication denies all the material allegations containing new matter, set up in the answer.
The issues and questions in this suit as summed up in appellant’s brief are:
1. Are the respondents estopped to deny that Felix G. and Geo. P. Dorris were, after the deed to them from Day, the equitable owners of the land in controversy ?
2. Is the right of the appellant barred by lapse of time ?
3. Does the deed of the appellant to Ben. R. and Wm. S. Ingles estop the appellant from asserting the title he afterwards acquired upon the death of his son, Felix G. Dorris ?
4. Can the respondents under the pleadings and proofs claim the rights of purchasers for value without notice ?
5. Does the fact that the respondents put improvements on the land estop the appellant, he being shown to have known nothing of it until after they put on ?
All of these questions are very ably discussed in the brief of appellant; but as the third proposition is the only one which was seriously urged on behalf of respondents, we deem it unnecessary'to consider the others. That proposition is as follows: Does the deed of appellant to B. R. and W. S. Ingles estop him from asserting the title he after-wards acquired upon the death of his son, Felix G. Dorris ? It is urged on behalf of appellant that the rule is well settled that a mere simple quitclaim of the right, title and interest of the grantor, does not estop him from asserting an after acquired title, which is undoubtedly correct; but that is not the only question presented here. Appellant had two minor children, George P. and Felix G. Dorris, the former being nine years of age and the latter six at the time when the lot in question was conveyed to them. Appellant not only negotiated the trade for the lot but furnished the *276consideration from Ms own means, and caused it to be conveyed by Day and wife to Ms said minor children.
About one year after this lot had been conveyed to these minor children of appellant, he having conceived the idea that he had some Mnd of ownership in the property until they should attain their majority, sold the same for its full value to B. B. and W. S. Ingles, and having so sold it, appellant and wife duly conveyed the same to them by-good and sufficient deed, which was duly placed upon the record. It is claimed however by appellant that the conditions of the title was fully understood by the Ingles at the time of their purchase, he having explained to them that he only claimed the right to control the property until his said children should attain their majority. But the Ingles having since died, their evidence can not now be obtained upon this question. It looks a little singular that if appellant only claimed the right to hold the land until his minor children should attain their majority, why he should deem it necessary to have his wife join with him in the deed to bar her right of dower, when it was impossible for her to have any such right under his theory.
Thus, when we view the act of the appellant in the light of the evidence in selling his supposed right to the lot and executing the deed in his own name, which was identical with that of his son, we think it was a circumstance which was very likely to deceive subsequent purchasers, and that the act of the appellant in executing a deed which might so deceive, was such an act or such negligence on his part as ought now to estop him from asserting the after-acquired title as against innocent purchasers. The least that could have been required of him by common prudence, under the circumstances, was to have signed his own name as Felix G. Dorris, senior, and that of his son as Felix G. Dorris, junior, so that third parties could have had the means of knowing which one of them had executed the paper.
Under the circumstances as presented in this case we think the circuit court did right in dismissing the suit with costs.
The decree of the court below is affirmed with costs.