3 Or. 406 | Multnomah Cty. Cir. Ct., O.R. | 1872
delivered the following opinion:
This is a suit by a plaintiff in possession, and if sustained, it must be as a suit to remove a cloud from the plaintiff’s title. Much has been said on the subject of the power of the court to amend the judgment alleged to have been confessed by the late William M. King in favor of T. J. Carter. But it is not necessary to advert to that subject further than to say, that this cannot be considered a bill for that purpose. The complaint does not sufficiently describe that judgment to enable the court to make an amendment; it does not bring all the interested parties before the court; and it does not purport to set out the cause of action upon which the confession was made.
The allegations are insufficient to warrant an amend
Section 500 of the code provides that “any person in possession, by himself or his tenant, of real property, may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate or interest.”
It is necessary to consider the requisites of a complaint in this class of cases, and particularly what must be alleged in respect to the defendant’s claim. It is not every idle assertion, made by one who has neither title nor color of title that will suffice to invoke the power of a court of equity to the relief of the plaintiff. It has been claimed that the enactment of this section has so revolutionized the practice in this class of cases, that a statement of the defendant’s claim in the language of the statute is sufficient to constitute a case in equity; and the case of Curtis v. Suiter (15 Cal. 259) is referred to as supporting that position. The point decided in that ease is, that an injunction was properly dissolved upon the coming in of an answer, which denied the title of the plaintiff and set up paramount title in the defendant. The opinion is expressed that, under the statute of that state, “it is unnecessary for the plaintiff to delay seeking the equitable interposition of the court until ho has been disturbed in his possession by the institution of a suit against him, and until judgment in such suit has passed in his favor.
Chief Justice Field in that case intimates that a party was formerly thus restricted, and that the restriction was removed by the enactment of that section. If it is true that such restriction was universal before the enactment of that section, there certainly are grounds for the statement that the section “ enlarges the class of cases in which equitable relief could formerly be sought in quieting title.” It may be questioned, however, whether that restriction was universal before that enactment. (Story Eq. Jr. ss. 694, 700; Petit v. Shepherd, 5 Paige, 492.) "Without pursuing the subject of what the law was before the enactment, it is safe to say, it cannot be fairly inferred from the
Tbe defendant is right, I think, in bis position tbat if tbe plaintiff does not show a valid judgment against ¥m. M. King, she does not by her complaint show any right in herself, or any sufficient cause of suit. But tbe defendant states bis case too strongly when be says: “ If tbe supposed judgment was complete, tbe plaintiff has title, and no grounds for equitable relief can exist.” Tbe rule on tbat subject goes no further than this: if tbe legal title is in tbe, plaintiff, and tbat fact appears on tbe face of tbe deed, instrument, or chain of title under wbicb tbe defendant claims, or if it appear on tbe face of such deed, instrument, or chain of title tbat tbe defendants’ claim is without foundation, tbe suit will be dismissed. (Heywood v. City of Buffalo, 4 Kern. 534; Ward v. Dewy, 16 N. Y. 519; Vandorn v. Mayo, 9 Paige, 388; Story Eq. Jr. sec. 700.
It is no objection to tbe claim here set up tbat tbe plaintiff has a legal title, if it also appears tbat tbe claim made by tbe defendant and tbe chain of title upon which it is based present proof prima facie of the legal title in tbe defendant, and presents nothing on tbe fa.ce of tbe title papers to tbe contrary. Or if it is shown tbat there is an obstacle to tbe plaintiff asserting her title in a court of law, wbicb ought to be removed.
In judgments other than by confession, under that act, the judgment roll contained a copy of the judgment, the original entry being in the judgment book.
The defendant objects that the complaint should state the acts done, in the attempted confession of judgment; and it will be necessary to notice that objection hereafter; but the principal argument, on the hearing of the demurrer, was addressed to the question whether a valid sale could be made without an entry in tho judgment book.
The statute requires the clerk to indorse the judgment on the statement filed, and enter it in the judgment book. The indorsement and the entry must be considered simultaneous acts, or at least, it cannot be contended that the entry of the judgment in the book need precede the writing of it on the back of the statement. Tho two entries may be considered duplicates; at least, the indorsement on the statement is not to be a mere copy, and it must be considered an original entry, under the language of the act. Doubtless the two entries ought to be deemed to have the force of duplicate copies, each having the full effect of an original entry. If this is a proper construction of that statute, when the clerk had made one of these entries, the
The case of Neale v. Berryhill (4 How. Pr. 16), was under a statute exactly similar in this particular to ours above quoted; and the mistake is the same that is alleged in this ''case, except that the clerk omitted in that case to endorse the 'judgment on the statement, but did enter it in the judgment book. After other parties had taken judgment against the same defendant, the court permitted the endorsement to be made nu/rn pro tunc. This, after third parties had obtained judgments, could not be done on principles of justice, no matter how broad the statute of amendments, unless upon the idea that the proceeding had become a judgment before the rights of the third party intervened. I do not, however, deem that case, nor any of the cases cited, in which leave to amend was the point before the court, as of great weight on this subject, for the reason that this complaint ought not to be considered as an application to amend. It is said in Gray v. Palmer (28 Cal. 416), and in Genella v. Relyea (32 Cal. 159), that the entry of judgment in the judgment book is a mere ministerial duty of the clerk. The point in those cases relates to the time when a judgment shall be deemed rendered. In each
Conceding that the statement was regularly made and filed, and the judgment indorsed upon it, the question arises whether the failure of the clerk lo make the entry in the judgment book, the loss of the judgment roll and the subsequent conveyance by the administrator of the judgment debtor's estate, are sufficient grounds for equitable relief. I am not prepared to assume jurisdiction on a supposition that the alleged judgment roll, if in existence, could not be read in an action at law, notwithstanding the failure to