On Petition for Rehearing.
(187 Pac. 621.)
On petition for rehearing. Petition denied.
Rehearing Denied.
Messrs. Clifford & Correll and Mr. Thomas H. Breeze, for the petition.
Mr. John L. Rand and Mr. A. A. Smith, contra.
BEAN, J.Counsel for defendant files an earnest petition for a reconsideration of this case. The main contention is that “there is manifest error in drawing conclusions of ultimate facts, in diametrical opposition to those drawn by Mr. Justice Harris” in the former suit of Bessler v. Derby, 80 Or. 513 (157 Pac. 791).
In passing we wish to state that we notice no such conflict between the findings in the former suit and the conclusions of the jury in the present case.
"Were it not for the fact that one of the learned counsel for defendant is from a sister state where apparently they do not preserve the distinction between an action at law and a suit in equity, as our Code does, we should not feel disposed to discuss this question. In our f ormer opinion we twice declared, and we again as*288sert, that we do not find the facts or pass npon the question of the weight of the evidence in this law action. That is the province of the jury. The inhibition of our Constitution, Article VII, Section 3, is as follows:
“In actions at law, no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”
Therefore, in referring to the facts which the jury found by their verdict, it is only for the purpose of ascertaining whether there is any substantial competent evidence to support the verdict. That is as far as our authority extends, as to conclusions of fact in an action at law. It does not seem to be claimed on the part of defendant, and indeed we do not see how it could be so claimed, that there was no competent evidence to sustain the verdict. There was some dispute it is true, and different conclusions of fact might reasonably be drawn from the circumstances of the case by the triers of the facts, but those matters were set at rest by the verdict.
Complaint is made in regard to the statement in reference to Blanchard, the agent of defendant of whom plaintiff’s predecessors in interest attempted to purchase the land in question. Our discussion of the question of adverse possession of the land in our former memorandum was based upon the proposition that the contract of purchase under which plaintiff and his predecessors claimed was-invalid, and wé attempted to so state. Plaintiff’s right to the land is based solely upon adverse possession thereof for the statutory period, and not upon a contract of purchase.
After a careful examination of the courteous petition for a rehearing, we adhere to our former opinion. The petition is denied.
Affirmed. Behearing Denied.