110 P. 487 | Or. | 1910
delivered the opinion of the court.
“When the estate or interest to be protected is equitable, the jurisdiction should be exercised, whether the plaintiff is in or out of possession, for under these circumstances legal remedies are not possible; but, when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus, for example, a plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circumstances [citing authorities], but where he is in possession, and thus unable to obtain any adequate legal relief he may resort to equity [citing authorities]. Where, on the other hand, a party out of possession has an equitable title, or where he holds the legal title under circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned.”
Every case of this character, therefore, should be considered with reference to the facts before the court. The title asserted by plaintiff in the present case is a legal title. He does not allege that he is in possession, but only that he is entitled to possession. No particular or special fact is averred, such as a fraud in procurement of the execution of the deed sought to be canceled, upon which equity might act, aside from the fact that a cloud is cast upon the title. Where fraud is averred, equity assumes jurisdiction regardless of whether plaintiff is in or out of possession. State v. Warner Valley Stock Co., 56 Or. 283 (106 Pac. 780.) Nor is any other fact alleged tending to show that the legal remedy of ejectment is inadequate. The facts averred are substantially identical with those set forth in Hendershott v. Sagsvold, 49 Or.
The decree will therefore be reversed and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.