4. For the delivery to the wife, when she is not the party in fault, of her personal property in the possession or control of the husband at the time of giving the decree;

5. For the appointment of one or more trustees to collect, receive, expend, inanage, or invest, in such manner as the court shall direct, any sum of money

decreed for the maintenance of the wife or the nurture and education of minor children committed to her care and custody;

6. To change the name of the wife, when she is not the party in fault. [L. 1862 ; D. Cd. § 497 ; H. C. § 501.]

CUSTODY OF MINOR CHILDREN.—A decree of divorce which fails to provide for the care and custody of minor children of the marriage, if there be such, is defective: Boone v. Boone, 12 Or. 439, 8 Pac. 450.

The care and custody of minor children should be given to the party not in fault, unless there is evidence showing that it will be manifestly improper to do so, and a special finding of fact made by the court to that effect: Lambert v. Lambert, 16 Or. 485, 19 Pac. 459.

The mere fact that the care of the children is awarded to the party in fault raises no presumption of error: Pitman v. Pitman, 3 Or. 553.

In providing for the future care and custody of the minor children in such a case,

the principal matter for consideration is the best interest and welfare of the child. That consideration should be paramount to every other motive and influence: Lambert v. Lambert, 16 Or. 485, 19 Pac. 459.

§ 514. Power of Court to Modify Decree.

Other things being equal, a father is to be preferred to a grandfather as custodian of the child: Jackson v. Jackson, 8 Or. 402. In the case of Lambert v. Lambert, supra, however, the custody was granted to the grandfather in preference to the father.

ALIMONY.-Where the supreme court has a divorce case for final disposition on its merits, it will grant such relief in the way of an additional allowance for alimony or expenses as may seem proper under the proof submitted: O'Brien v. O'Brien, 36 Or. 96, 58 Pac. 892.

At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit. [L. 1862; D. Cd. § 498; H. C. § 502.]

of alimony was proper: Brandt v. Brandt, 40 Or., 67 Pac. 508.

MODIFICATION OF DECREE.-Under such marriage, and from further payment this section the court has authority, on motion, to set aside, alter, or modify so much of a divorce decree as may have provided for the maintenance of either party. A divorce, therefore, is not final nor res judicata between the parties as to such matters: Henderson v. Henderson, 37 Or. 141. 60 Pac. 597, 48 L. R. A. 766.

Where a decree awarding permanent alimony is not based on any consideration of property rights of the wife, but merely as a provision for her support and maintenance, the statute is sufficiently broad enough to authorize an order releasing defendant from the payment of further alimony for causes arising subsequently to the decree, where such course appears equitable. Thus, where a wife was allowed permanent alimony, and subsequently remarried, an order releasing defendant from the payment of alimony which had accrued subsequent to

§ 515. Marriage Terminated by Decree

Such modification can only be made on a motion in the original suit, and the court, under this section retains jurisdiction for that purpose. The court has no power to direct the husband to pay the wife's counsel fees in a suit brought independently by a husband to modify a decree fixing the amount of permanent alimony: Corder v. Speake, 37 Or. 108, 51 Pac. 643.

But a decree carriyng into effect the terms of an agreement between husband and wife, by which the latter is to receive a certain sum per month during her life, after a divorce caused by the husband's misconduct, can not afterwards be modified by the court without the consent of both parties thereto: Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 48 L. R. A. 766.

- Right to Remarry.

A decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor

as if such decree had not been given, until the suit has been heard and determined on appeal, and if no appeal be taken, the expiration of the period allowed by this code to take such appeal. [L. 1862; D. Cd. § 499; H. C. § 503.]

CHAPTER IX.

OF SUITS TO DETERMINE ADVERSE CLAIMS TO REAL PROPERTY, AND TO CANCEL A PATENT WRONGFULLY

ISSUED THEREFOR.

§ 516. Suit to Determine Adverse Claim to Real Estate.

Any person claiming an interest or estate in real estate not in the actual possession of another may maintain a suit in equity against another who claims an interest or estate therein adverse to him, for the purpose of determining such conflicting or adverse claims, interests, or estates. [L. 1862; D. Cd. § 500; H. C. § 504 ; L. 1899, p. 227.]

smith v. Smith, 10 Saw. 294, 21 Fed. 611.

It is necessary to state facts from which a court can properly draw the conclusion that defendant's claim is a cloud on plaintiff's title: King v. Higgins, 3 Or. 407.

Thus, it is held that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity ought to be stated: Teal v. Collins, 9 Or. 89; but where, as in this state, the statute declares a tax deed to be prima facie evidence of title, in a suit to remove a cloud created by such a deed, the mere naming of the instrument, alleging that it is regular upon its face, is sufficient to show its apparent validity: Day v. Schneider, 28 Or. 459, 43 Pac. 650.

In a suit to prevent a cloud on title, a complaint describing the property as "70 acres thereof," referring to a farm of 110 acres, is insufficient: Kadderly v. Frazier, 38 Or. 273, 63 Pac. 487.

A complaint must show the particular muniment which is said to constitute the cloud and the particular infirmity which renders it void, and the facts as to the infirmity must be set out. It will not be sufficient to allege generally that the muniment or record is void. Thus, an allegation that a certain section of a city charter "in so far as it attempts to authorize any improvement or repair of any street to be made without any petition therefor, or without any remonstrance being heard thereto, and also by reason of not providing for any sufficient notice thereof is unconstitutional and void," is not the equivalent of an allegation that no notice was given of the proposed improvement, or that no opportunity was afforded plaintiff of being heard on the question of the proposition of costs to be assessed against each parcel of land affected: Shannon v. Portland, 38 Or. 391, 62 Pac. 50.

A legal title, either one resting on records

or on adverse possession, can not be asserted in equity, as by a suit to remove a cloud from a title, except by one in possession: Silver v. Lee, 38 Or. 511, 63 Pac. 882.

The plaintiff in a suit to quiet title can not, at his option, split it up into many suits, and if he omits to set forth and prove all the grounds of his right or his adversary's want of it, he can not afterwards bring another suit upon the fragment or portion of the case omitted; and where one of the grounds of relief is abandoned by the plaintiff because adjudged to be inconsistent with another ground of relief alleged in the complaint, and such suit is finally determined adversely to the plaintiff, he is barred from maintaining another suit for the same relief upon such abandoned ground: Starrs v. Stark, 1 Saw. 270.

An application filed in the office of the secretary of state to purchase the accretions of a river cast upon the property of a person as swamp and overflow land is a mere nullity, and casts no cloud on the title of the riparian owner: Minto v. Delaney, 7 Or. 338.

A suit to ascertain and quiet title, under this section, extends to and includes all grounds of controversy between the parties as to the title of the premises, and by the final decree therein all matters affecting such title are determined: Starrs v. Stark, 1 Saw. 270.

A suit to restrain an infringement upon the enjoyment of an irrigation franchise is not a suit to determine an adverse claim to real property, within the meaning of this section: Umatilla Irrig. Co. v. Umatilla Imp. Co. 22 Or. 386. 30 Pac. 30.

A suit by the owner in fee to determine an adverse claim to or interest in real estate, or to remove a cloud from the title. is never barred while the adverse claim or interests exists: Meier v. Kelly, 22 Or. 138, 29 Pac. 265.

§ 517. Suit to Cancel Patent Wrongfully Issued.

Whenever any person claims any real property as a donee of the United States, by virtue of a settlement thereon, under the act of congress approved September 27, 1850, commonly called the donation law, or the acts amendatory thereof, and the patent for such property, or any portion thereof, shall have wrongfully issued to another, such person may maintain a suit in equity against the person to whom the patent may issue, or those claiming under him, for the purpose of having such patent canceled, and the estate or interest of the plaintiff in the property ascertained and established. In such suit, the party entitled to and making the settlement under such acts of congress, and complying with the subsequent conditions thereby required, shall be taken and deemed to have a legal estate in fee in the property, although the patent therefor has issued to another. [L. 1862; D. Cd. § 501; H. C. § 505.]

173, it is held that the limitation prescribed by § 392, ante, was intended to apply only to controversies arising under this section. At that time the limitation prescribed by § 392 was five years, but this limitation has been extended to ten years, the same as the limitation in other actions for an interest in real property.

This section expresses in a condensed In Baker v. Woodward, 12 Or. 18. 6 Pac. manner what has always been the rule of practice of the United States courts in equity cases concerning public grants of land: Lee v. Summers. 2 Or. 267. This right to set aside a patent can not be exercised by a stranger to the title. The right to resist a patent rests only with the government and those who are in an attitude lawfully to claim under the government: Lee v. Summers, supra.

CHAPTER X.

OF ASCERTAINING AND ESTABLISHING BOUNDARIES.

§ 518. Suit May be Brought to Establish Boundary.

In any case where any dispute or controversy exists, or may hereafter arise, between two or more owners of adjacent or contiguous lands in this state, concerning the boundary lines thereof, or the location of the line or lines dividing such lands, either party or any party to such dispute or controversy may bring and maintain a suit in equity in the circuit court of this state in the county where such lands, or some part thereof, are situated, for the purpose of having such controversy or dispute determined, and such boundary line or lines, or dividing lines, ascertained and marked by proper monuments upon the ground where such line or lines may be ascertained to be, and established in such suit. [L. 1887, p. 53, § 1; H. C. § 506.]

This act was intended to give courts of equity jurisdiction in cases of disputed boundary, where a dispute or controversy exists as to the boundary merely, without regard to any other equity: Love v. Morrill, 19 Or. 545, 24 Pac. 916; King v. Brigham, 23 Or. 270, 31 Pac. 601, 18 L. R. A. 361; Dice v. McCauley, 22 Or. 459, 30 Pac. 160.

But the jurisdiction under this section is limited to the ascertainment of boundaries; it does not give the court of equity jurisdiction to determine questions of title: Love v. Morrill, supra; King v. Brigham, supra; School Dist. v. Price, 23 Or. 294, 31 Pac. 657. It therefore is constitutional within the provision that the parties can not be deprived of their right of trial by jury: King v. Brigham, supra.

Equity can not determine a claim of title by adverse possession to the land between the lines claimed by the respective parties to be the correct lines: School Dist. v. Price, supra.

Nor has it jurisdiction where the question in dispute is which of two lines was meant by the description in a deed, for this simply is determining the title to the land between the two lines: Miner v. Caples, 23 Or. 303, 31 Pac. 655.

RES JUDICATA.-Where a boundary line has been settled in a former suit in which the controversy was as to its location and not as to the title to the strip of land lying between the different lines claimed by the parties, the title to the strip, not being directly in issue, is not adjudicated by the determination of the boundary, and such suit is no bar to a subsequent suit to quiet title to the strip in question: King v. Brigham. 23 Or. 262. 31 Pac. 601, 18 L. R. A. 361. APPEAL.-Where the decree is reversed

because the evidence is largely directed to the issue of title which could not properly be tried in such a suit, the cause will be remanded to enable the parties to segregate the evidence, where it is so intermingled that the reviewing court can not do so, and if necessary to adduce new evidence bearing on the proper issue: School Dist. v. Price, 23 Or. 294, 31 Pac. 657.

EVIDENCE.-Where the question as to the disputed boundary rests wholly on facts and there are circumstances inherent in the case of weight and importance which are corroborated in substance by witnesses, whose long residence in the neighborhood and opportunity to know give value to their testimony; held sufficient to establish such boundary: Bewley v. Chapman, 16 Or. 402, 18 Pac. 489.

Courses and distances must yield to fixed monuments, and when they are inconsistent, the monuments called for in the deed are paramount: Anderson v. McCormick, 18 Or. 301, 22 Pac. 1062.

The location of lines and monuments on the ground will control over courses and distances: King v. Brigham, 19 Or. 560, 31 Pac. 601; Vandusen v. Shively, 22 Or. 64, 29 Pac. 76; Goodman v. Myrick, 5 Or. 65; Lewis v. Lewis. 4 Or. 177; Robinson v. Laurer, 27 Or. 310, 40 Pac. 1012, and collection of cases in the footnote.

Where it is claimed that lines and monuments do not agree with courses and distances, evidence of their actual location must be so clear and satisfactory as to establish that fact to the entire satisfaction of the court, and place beyond question the actual location of the lines or monuments: King v. Brigham, 19 Or. 560, 31 Pac. 601.

§ 519. Pleadings in Suits to Establish Boundaries.

The complaint in such suit shall be sufficient, if it appears therefrom that the plaintiff and defendant or defendants are owners of adjacent lands, some part of which is in the county in which said suit is brought; that there is a controversy or dispute between the parties concerning their boundary or dividing line or lines, and it shall not be necessary to set forth the nature of such dispute or controversy further than that the plaintiff shall describe the

boundary or dividing line as he shall claim it to be. The defendant in his answer shall set forth the nature of his claim, with reference to the location of the line in controversy. [L. 1887, p. 54, § 2; H. C. § 507.]

$ 520. Proceeding Analogous to that in Other Suits.

The mode of proceeding under this act shall be analogous to that of other suits in equity: Provided, that at the time of entering the decree fixing the true location of the disputed boundary or dividing line the court shall appoint three disinterested commissioners, one of whom shall be a practical surveyor, and shall direct said commissioners to go upon the lands of the parties and establish and mark out upon the grounds, by proper marks and monuments, the boundary or dividing line as ascertained and determined by the court in its decree. [L. 1887, p. 54, § 3; H. C. § 508.]

COMMISSION TO LOCATE DISPUTED BOUNDARY.-It is error at the time of entering a decree for the court not to appoint a commission, as required by this section, to mark it on the ground, although the evi

dence shows that the boundary was already plainly indicated by a fence: Robinson v. Laurer, 27 Or. 315, 40 Pac. 1012; Vandusen v. Shively, 22 Or. 67, 29 Pac. 76.

§ 521. Oath and Duties of Commissioners.

Before entering upon the discharge of their duties, the said commissioners shall make and file their oath in writing, to faithfully and impartially perform their duties as such commissioners, and after designating the said line by proper marks and monuments, they shall file, in said court and cause, a report of their doings as such commissioners, and the same shall be, when approved or confirmed by the court, a part of the judgment roll in said cause. [L. 1887, p. 54, § 4; H. C. § 509.]

§ 522. Their Report.

The report of the commissioners may be confirmed by the court, upon written motion of either party to such suit, whenever it shall appear to the court that said motion was served upon the adverse party two days before the presentation thereof, and that no exceptions have been filed to said report within two days after said service. If exceptions are filed as aforesaid, to said report, said exceptions may be heard with the motion to confirm, and the court may confirm, modify, or set aside said report, as shall seem just, and in the latter case may appoint a new commission or refer the matter to the same commissioners, with appropriate instructions. [L. 1887, p. 54, § 5; H. C. $ 510.]