Jacobs v. Jacobs

180 P. 515 | Or. | 1919

JOHNS, J.

1, 2. There is no merit in the defendant’s contention. A suit for the partition of real property is a statutory proceeding. Section 435, L. O. L., provides:

“When several persons hold real property as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, or when several persons hold as tenants in common a vested remainder or reversion in any real property, any one or more of them may maintain a suit for the partition of such real property, according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appears that a partition cannot he had without great prejudice to the owner.”

Section 436 specifies that:

“The interest of all persons in • the property, whether such persons he known or unknown, shall be set forth in the complaint, specifically and particularly, as far as known to the plaintiff. * * ”

Section 440 requires that, “The defendant shall set forth in his answer the nature and extent of his interest in the property.” Section 441 is as follows:

“The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined in such suit, and where a defendant fails to answer, or where a sale of the property is necessary, the title shall he ascertained by proof to the satisfaction of the court before the decree for partition or sale is given.”

These sections of the Code do not treat of or deal with the question of rents, issues and profits, which are personal property.

As plaintiff in the partition suit the defendant here was the moving party, and the only issue raised by his complaint was the division of the property according to the interests of the respective owners. To that 'complaint Mary Jacobs answered, admitting that John Jacobs was the owner of an undivided two-thirds interest in the lands and that she was the owner of an undivided one-third interest. As a matter of fact, the decree was one by consent as to the interest of each party in the land, the partition thereof and the appointment of referees to make the division. There was no allegation in the complaint about any issues or profits or the rent of the land and there was nothing said about those items in the answér. Whatever may have been the province or the duty of the court if such issues had been raised and litigated by J ohn J acobs in the partition suit, the fact remains that he did not elect to present them, and he has no right to complain because they were not raised by Mary J acobs in her answer.

3. The primary purpose of the statute is to ascertain and determine the title to real property only, and while it may be trué that under proper allegations the question of rental and proceeds would become an incident to a partition suit and could be settled by a decree, in the absence of proper allegations such questions could not be adjudicated.

“Plaintiff may, as an incident to the proceeding for partition, seek and obtain relief in addition to that obtainable in a partition at law and necessary to a complete adjustment of all matters arising out of the cotenancy, such as an accounting for moneys paid for improvements or received by defendants as rents and profits. * * It is sufficient for our present purpose to say that for whatsoever relief plaintiff seeks other than that of the partitioning of the property, he must in his complaint make the allegations necessary to sustain it. If no allegation is made, no relief can be granted, and if an allegation is made, it must fail unless it would be sufficient if it were employed in an independent action ”: 30 Cyc. 218, § 11, and authorities there cited.

In 20 R. C. L. 785, the rule is thus laid down:

“It is a well-affirmed principle of law that a judgment or decree in a partition suit, when the court has jurisdiction over the parties and the subject matter, is 'as conclusive between the parties upon all the material issues in the case which the court was called upon to examine, and which, under the pleadings, were tried and determined, as are judgments in other actions.”

And in Volume 15, page 964, of the same text we find:

“If the same evidence would sustain both, the two actions aré considered the same, gnd the judgment in the former is a bar to the subsequent action, although the two actions are different in form. If, however, different proofs would be required to sustain the two actions, a judgment in one is no bar to the other. t It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has even been designated as infallible.”

The question of rents and profits was not within the pleadings in the partition suit or adjudicated by the decree in that proceeding. The judgment of the Circuit Court is affirmed. Affirmed.

McBride, C. J., and Bean and Bennett, JJ.} concur.