McCown v. Hannah

3 Or. 302 | Multnomah Cty. Cir. Ct., O.R. | 1871

By the Court,

Upton, J.

Formerly the action of ejectment afforded a means of obtaining possession, but was not decisive of ultimate rights of the parties. The evident intent of tjie code is to change the character of the action in this respect, and to so change the action as to enable the parties by one action to obtain the possession and a judgment that shall determine all questions relating to the title, and which shall be a bar to any future proceeding in relation to that matter. This is not a statute confering a right, but one dealing with the remedy for an injury to, or an invasion of, a right. The plaintiff does not come into court with a purpose to create a right by aid of the statute, hence it is not a case where a right is created by statute and where the statute must for that reason be construed strictly. It is a statute that changes the mode of obtaining a remedy, and being a remedial statute, it must be so construed as to carry out the intention of the legislature according to the spirit and meaning of the act, to be ascertained by the ordinary rules of construction.

It is true there is one fifth interest for which the defendant, Hannah, defends in his own right, and as to that interest he does not defend as tenant of another. But since a tenant in common in possession, is rightfully in possession of the whole, and may hold the whole, because he is tenant in common, Hannah has a right to defend for the four fifths as well as for the one fifth, and yet he does not own in his own right the fee in all that he has a right to possess. He owns but one fifth, and but for the tenancy he could possess in his own exclusive right only one fifth. It is only through his relation to his cotenants that he may possess the whole, or defend for more than one fifth. As to the four fifths I think he defends as tenant only within the meaning of section 314 of the code, and I think it is unreasonable to suppose that the legislature intended to make such case an exception, leaving it unprovided for, and thus compel a plaintiff to litigate for the whole premises successively, in one action after another, with several tenants in common. The motion to dismiss as to Caroline Worth, without prejudice, was overruled. ,

On the first day of the present term the plaintiff filed a motion and an affidavit for a continuance. On the sixth day of the ter'm he brought the motion on for argument. The motion was opposed by Hannah and such other defendants as had answered, Caroline Worth and two other defendants were still entitled to time in which to answer, and they did not appear to the motion. It was hdd, that the motion was premature.