delivered the opinion of the court.
1. The parties agreed before the referee that the plaintiff’s paper title was deraigned from a United States patent covering the land in dispute issued to the Willamette Valley and Cascade Mountain Wagon Road Company under date of February 10, 1894, and recorded in the county records November 26, 1895, his immediate grantor being the Oregon and Western Colonization Company by deed of July 28, 1915, recorded August 9th of that year. It was also stipulated that the defendant, Samuel M. W. Hindman, received a deed from the State of Oregon covering the land, dated October 30, 1884, and recorded on Novem
2. It is contended, however, that the defendants are estopped to claim any title on account of their conduct. It becomes necessary therefore to rehearse some of the testimony. The plaintiff as a witness in his own behalf declares that he became acquainted with the land in 1906 when he was visiting in that country, and that Mr. Hindman had showed it to him and stated that he himself owned the property. The plaintiff says he bought the land of the Schonlebers February 15, 1913, and took possession immediately. He states that they had never cultivated it to his knowledge; that when he bought he understood Hindman had a claim against the property; that he interviewed him later in the spring, and that the latter seemed to think the company should have given him the preference in acquiring its title. He was then asked this question by his counsel:
“State generally, what your relations were with Mr. Charles J. Hindman and Martha Hindman, S. M. W. Hindman, relative to this land, and your occupancyPage 550of the same, and the improvements thereon, anything in connection with that. ”
He answered: “Well, in connection with this talk, at the time Mr. Hindman told me he had a deed from the state leading back several years for that land under Swamp Act, I believe, and of course in the conversation I simply remarked to him then, ‘Well, there is no occasion for us to have any trouble in connection with this matter. We will be friends and if you consider you have claim there, I would ask you, as a favor, to bring it to an issue at once, or as soon as you can. ’ Mr. Hindman simply stated that he would see his attorney in relation to the matter and would later advise me as to what he would do. And after we talked a week or ten days, he drove up to the store and called me out of my place of business and simply stated, he says, ‘Mack, I have decided to drop that matter,’ and he says, ‘You can go ahead.’
“Q. Did he say he had no title to the land?
“A. No, sir, he didn’t say that directly, he thought that possibly he might beat the case but went on to state it would be a long drawn out and expensive proposition and didn’t feel justified in doing it.”
On cross-examination, in speaking of his purchase from Mrs. Schonleber, he testified as follows:
“Q. Did she tell you anybody else claimed the premises?
“A. No, she didn’t.
“Q. Did you ask her about Hindman when she offered to sell to you, didn’t you inquire if Hindman owned these premises?
“A. No, sir.
“Q. Yet, Mr. Hindman told you six years before that he owned the land?
“A. Yes, I knew he claimed the premises.”
On cross-examination the defendant Hindman as a witness in his own behalf, testified thus:
Page 551“Q. Isn’t it a fact you came to Mr. McKinney since lie has been there and told him you were not going ahead to claim any title to this land?
“A. No, sir, I didn’t.
“Q. You do not remember of any such conversation?
“A. Not that effect. I told him several times if I could hold that land I was going to do it.
“Q. You knew he was going ahead and use this land?
“A. I knew he was plowing a ditch and put it in there I think two years.
“Q. You didn’t claim title during that time?
‘ ‘ A. I told him whenever I got around to it and could find out what I could do in regard to it I would do so.
“Q. You never did anything?
“A. No, never was able to both financially and physically.
“Q. Did you not know that Mr. McKinney was depending on what you said and what you were doing to give him exclusive (title) of the land?
“A. No, he told me he was depending on the road company and they was going to defend that title to the finish.”
3. McKinney for himself on the one hand and Hind-man for himself on the other gave practically all the evidence on the question of estoppel. On this branch of the case the issue is whether the conduct of Hindman amounts to an estoppel and further whether estoppel is sufficiently proved. The two witnesses are strongly at variance with each other in their statements. Conduct amounting to an estoppel should be clearly established by a preponderance of the testimony. As to that we conclude that the plaintiff has not made any stronger case than the defendants. The former contends substantially that Charles J. Hindman waived his title to the land and permitted the plaintiff to go ahead with his improvement; while Hindman
4. Again, the question is about the title to the land. Out of the plaintiff’s own mouth we learn that he knew of Hindman’s claim and had known it for several years; that equipped with this knowledge and without consulting Hindman he acquired the title of Mrs. Sehonleber and assumed her contract to buy the land, thus committing himself to the process of acquiring title without any inducement whatever from the der fendants. It is clear that the plaintiff was not thus far influenced to act by anything that Hindman said or did. By the least inquiry he could have ascertained the extent of the latter’s claim and would have discovered a state of facts conferring upon the defendant the fee-simple title to the land. He now relies upon what Hindman said to him after he had contracted to buy the land. In other words, he undertakes to divest the latter of title to realty by his verbal utterances. In Dechenbach v. Rima, 45 Or. 500 (77 Pac. 391, 78 Pac. 666), Mr. Justice Bean says:
“Estoppel m pais arises from misrepresentation or concealment of a material fact, and rests on the ground that it would be a fraud in a party to assert what his previous conduct has denied when others have acted on the faith of that denial. Such an estoppel can rarely arise unless it-has reference to a present or past state of things, or relates to an intended abandonment of an existing right; and it has no application to a mere breach of a promise or covenant relating to the future.”
“The only contention is that in making such purchase he (defendant) relied on the verbal promise of the plaintiff that, if he would buy the business, the plaintiff would thereafter execute to him a lease of the premises for more than one year. This contract was void by the statute of frauds, and is therefore void for all purposes. It conferred no right upon the defendant and created no obligation on the part of the plaintiff. ’ ’
The doctrine of that case is applicable to this. As respects the title to the land which is the only thing here in question, the plaintiff appears to have acted independently of anything stated by Hindman and to have embarked upon his enterprise and committed himself irrevocably to it before he consulted Hindman in any particular. Not having been influenced as to the acquisition of title by any conduct on the part of the holder of the title by prescription the latter is not estopped to assert the truth. All that seems to have been done by the plaintiff after his conversation with Hindman was to expend about $150, as he says,
“in connection with building and equipping a ditch and dam site on Squaw Creek for part of the land it covers and fencing and plowing, the cultivation and handling of that land, crops and so forth,”