whence the consideration came, the money being treated as the original gift with which the land was purchased: Velten v. Carmack, 23 Or. 282 (31 Pac. 658, 20 L. R. A. 101). The rule announced in that case, however, is not applicable to the facts involved herein, for it will be remembered that the answer admits that plaintiff and her sister paid their father the sum of $300 on account of the house which he built on the premises conveyed to them. The construction of the house made it a part of the realty to which it was attached, and, having been put up after the land was conveyed, the building became their property. Their agreement to pay one half the cost of erecting a house on the land to be conveyed to them was an executory consideration for the deed, which is sufficient to support it, and a failure on their part to perform the terms of their agreement does not invalidate the instrument, but merely furnishes their father a right of action against them for the consideration stipulated: Lake v. Gray, 35 Iowa, 459; Gray v. Lake, 48 Iowa, 505. Invoking the maxim that "Equity looks to the intent rather than to the form" (Pomeroy, Eq. Juris. § 363), the agreement entered into between Hindman and his daughters was in effect that he would erect a house on the land designated, and convey the premises to them, in consideration of their stipulation to pay one half the cost of the building, which afforded a valuable consideration for the deed.

2. It is also maintained by defendants' counsel that, in the action of ejectment brought against her, plaintiff had an opportunity to set up, by way of cross-bill, the facts now relied upon as the basis of equitable relief, but, not having done so, she is estopped by the judgment rendered therein. Our statute allows an equitable defense by cross-bill in actions at law (B. & C. Comp. § 391), and in construing this provision it has been held that a party may rely upon a legal defense without being thereby precluded from afterwards asserting his equitable title in an original suit: Hill v. Cooper, 6 Or. 181; Spaur v. McBee, 19 Or. 76 (23 Pac. 818); South Port. Land Co. v. Munger, 36 Or. 457 (54 Pac. 815, 60 Pac. 5).

3. Considering the case on its merits, the transcript shows that the southwest corner of block 14 of the United States townsite of Baker City has been established and is evidenced by an iron pipe driven in the ground. John Hagel, a surveyor, as defendants' witness, testified that on July 3, 1903, he measured west from this pipe 627 feet, as he construes the distance called for in Hindman's deed, at which point he located the southwest corner of the Hindman Block, and, continuing the line west 15.75 feet, he reached a corner of a fence running north; that, retracing the line 19.5 feet, he found an old fence post, and also saw evidence of a fence originally extending north therefrom; and that, measuring east from the corner so located 86 feet, the distance called for in plaintiff's deed, he found that the east wall of her house extends upon Mrs. Hindman's land 7.9 feet, the roof projecting about 18 inches further. The testimony of Grace C. Hindman, which was taken by deposition, shows that she was in Baker City when the house in question was built, but too ill to direct the carpenters doing the work; and that her father selected the site for the building, pointed out where the pillars supporting the corners were to be placed, and superintended the construction of the house. The deposition of Mrs. C. L. Kurtz shows that she was present when the site for plaintiff's house was selected, and saw her uncle, the defendant W. C. Hindman, measure the ground with a tape line and mark with a stick the points where the corners were to be placed, but she does not remember seeing pegs driven at the angles indicated; that her uncle superintended the construction of the building, where he spent most of his time each day until it was finished; and that he conferred with the witness as to the proper place to put a door in the house, and as to the color of the paint to be used thereon. Mrs. Anna Rutan testified that, immediately prior to commencing the work on the house spoken of, she saw W. C. Hindman measuring the lot on which it was to be placed, and, in answer to her inquiry as to what he was doing, he informed her that plaintiff wanted him to build a house for her. William Bostwick, a paper hanger, testified that W. C. Hindman showed him the different kinds of paper which the witness used in cover

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ing the walls of the various rooms of plaintiff's house. Barnes, Charles Barnes, and William Cunningham each testified that Hindman superintended the construction of his daughter's house.

When this house was built, plaintiff was not at Baker City, and she testifies that she did not select the site for the building nor have anything to do with its construction, except to pay the cost thereof, and not until about three years after it was finished did she know that it encroached upon her stepmother's land. further appears that, prior to the building of plaintiff's house, Hindman put up a wire fence on what was supposed to be the boundary between his land and that of his daughter. This fence was removed so that the house could be erected, and plaintiff testified that her father, in referring to this fence, said: "That is the boundary between us." The deposition of Grace C. Hindman shows that this fence was put up prior to conveying her interest in the land to her sister, and in speaking of her father she testifies as follows: "He built a wire fence between his property and our lots. He took me to the place and showed me this wire fence, and said: "This fence divides your and Phila's (plaintiff's) lots from mine." The defendant W. C. Hindman, in referring to plaintiff's statements as to what he said about the fence, testifies as follows: "I told her I supposed that that wouldn't be far from the line, but that there was no corners established at all, and explained it to Grace, also, when I gave her the deed, that the corner wasn't established." He further testified that he did not know any part of plaintiff's house was off her land until nearly a year after it was built.

It appears from the transcript that in the action brought by the defendant Mrs. Hindman, as plaintiff, against the plaintiff, Phila B. Clark, as defendant, a stipulation was entered into by the parties authorizing C. M. Foster, the county surveyor of Baker County, to determine the location of the house in question, and having done so, according to his theory, from an inspection of the deeds constituting the chain of title, he made a report of his survey, a copy of which was offered in evidence on the trial of this cause. This shows that on June 21, 1875, one J. M.

Boyd conveyed to W. W. Ellis a block of land beginning at a point 96 feet west of the southwest corner of block 14, in the United States townsite of Baker City, thence west 216.5 feet to the southwest corner, etc. Ellis, on December 24, 1875, conveyed to Parmela Boyd, the wife of J. M. Boyd, a tract of land beginning at the southeast corner of the Academy Block in Baker City, thence west 216.5 feet, thence south 125 feet to the southwest corner, etc. J. M. Boyd and wife, on June 30, 1877, conveyed to the defendant W. C. Hindman a block of land beginning at a point 80 feet west of the southwest corner of the block then owned and occupied by Parmela Boyd, thence west 216.5 feet to the southwest corner, etc. A plat of the blocks mentioned was also offered in evidence, an examination of which shows that the east line of the Academy Block is parallel with and 114 feet west of the west line of block 14 of the United States townsite of Baker City. It will be remembered that Boyd's deed to Ellis places the southeast corner of the premises conveyed at a point ninety-six feet west of the southwest corner of block 14. The deed from Ellis to Boyd's wife makes the northeast corner of her block identical with the southeast corner of the Academy Block, thus placing the premises described in her deed eighteen feet west of the land conveyed to Ellis. This discrepancy has been the cause of the uncertainty concerning the southwest corner of the Hindman Block. The judgment by which Mrs. Hindman recovered twenty feet off the east end of plaintiff's land probably resulted from the conclusion that the variance in the description of the premises was equal to the award, instead of eighteen feet as indicated.

The plaintiff testified that when she and her sister purchased the land from their father it was fenced on the south and west; that he and their brother measured with a tape line east eightysix feet from a tree, supposed to be the southwest corner of the premises intended to be conveyed, and the description given in their deed was taken from the measurement thus made; that she secured the deed under the belief that the land measured by her father and brother in her presence settled the boundaries thereof; that her father built a partition fence on the line located by

such measurement; that in 1899 she first learned that any controversy existed in relation to the boundaries of her land, and thereupon moved her west fence about fifteen or twenty feet further west, and placed it in line with a fence her father had built north of her land, taking in a part of the street, which was then eighty-four feet wide, though the plat thereof showed a width of only sixty feet. The defendant testified that the distance is five feet and four inches from the post once forming the corner of the old fence, east to a tree, the circumference of which is sixty inches, but when it was set out it was very small. In referring to this tree, the witness says: "I considered it as no corner. I couldn't have planned it for a corner when I wasn't sure where the corner was."

The foregoing is a fair summary of the testimony given at the trial, the preponderance of which, in our opinion, shows that the defendant W. C. Hindman, in order to locate the east boundary of the premises intended to be conveyed to his daughters, measured east eighty-six feet from the tree standing near the post that then formed the corner of the old fence; that he pointed out to his daughters the line which he supposed formed the east boundary of their land, and, based on such measurement, he executed the deed to them; that he thereafter put up a partition fence on the line thus located; that in plaintiff's absence he again measured her land, selected the site for her house, and superintended its entire construction. Hindman, as a witness in his own behalf, denies each of these facts, but, as he is eighty-one years old, his contradictory statements probably result from a defective memory, due to his advanced age, rather than to his interest as a party in the decision to be rendered in this suit. Based on these facts, which we think are established, the question to be considered is whether or not the acts of the defendant W. C. Hindman, performed in ignorance of the true location of the southwest corner of his block, and his representations in relation to the supposed east boundary of plaintiff's land, made without intent to deceive his daughters, estop his wife, as a subsequent grantee, to assert title to the land which she claims has been encroached upon by plaintiff's house. "A party," says a