Miller v. Fisher, 151 P. 971

Miller v. Fisher

151 P. 971 | Or. | 1915

Opinion by

Mr. Chief Justice Moore.

1. The second ground of the demurrer is without merit, for the statute declares that:

“In an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of a cross-bill, which shall stay the proceeding’s at law, and the case thereafter .shall proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree: Section 390, L. O. L.

*537In Oregon, though a court at law and one in equity are presided over by the same judge, they are essentially distinct forums, and in order to authorize the consideration of a purely equitable question, or to warrant a review of facts that tend to overthrow the plaintiff’s legal title, or to give the defendant a better right by reason of his superior equity, when he is without a plain, adequate and complete remedy at law, such facts may be presented to the court in the manner provided in the section of the statute from which the excerpt has been taken: Moore v. Frazer, 15 Or. 635 (16 Pac. 869); Dose v. Beatie, 62 Or. 308 (123 Pac. 383, 125 Pac. 277). A complaint, in equity, in the nature of a cross-bill, cannot be interposed to enjoin the prosecution of an action at law until such action has been instituted ánd an answer filed therein; and, this being so, there must always be pending an action between the same parties in which the facts stated in the complaint must necessarily be somewhat analogous to the averments of the cross-bill.

2. Considering the other ground of demurrer, it is possible.the plaintiffs herein, as defendants in the ejectment action, could, by their answer, have set forth facts and by proof established a valid title to the demanded premises, and thus have defeated a recovery; but in such action the original plat could not have been canceled, and hence that which might have been alleged, as a reason why the plaintiffs therein should not have recovered what they sought, did not afford a plain, adequate and complete remedy at law: Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738).

3. If, in negotiating sales of land in Park Addition to Albina, Mr. Steel or his agents pointed out to purchasers the stakes set in the ground to indicate par*538ticular lots, which were not conveyed to others, and such purchasers accepted deeds thereto and entered into possession of the premises, making valuable improvements thereon, their titles should be protected without regard to the earlier plat. When the second map was made is not disclosed by the cross-bill but if it was in existence at the time the conveyances referred to herein were executed, and such sales of lots were made in accordance with the amended plat, though it had not been filed, and the real property described in the deeds so given did not interfere or conflict with prior conveyances, the original plat should be canceled.

4. Since no demurrer was interposed to the cross-bill on account of a defect of parties, it must be assumed that lots 16, 17, 20 and 21 in block 2 of Park Addition to Albina were the only tracts in controversy, and the parties to this suit the only .individuals who would be interested in or affected by a cancellation of the original plat.

It is believed that the complaint herein stated facts sufficient to constitute a cause of suit, thereby requiring the defendants to set forth by answer the facts composing their defense, and for this reason an error was committed in sustaining the demurrer and dismissing the suit.

The decree is therefore reversed, and the cause remanded for such further proceedings as may be necessary not inconsistent with this opinion.

Reversed and Remanded.

Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.