67 P. 511 | Or. | 1902
delivered the opinion.
This is a suit to determine an adverse estate or interest in realty. The complaint contains allegations that the plaintiff is the owner in fee simple of the property in controversy, consisting of four lots in Carter’s- Addition to the City of Portland, and that it is not in the actual possession of any one else. His title depends upon four deeds executed by the Chief of Police of the City of Portland in pursuance of bids made by him at the sales of the respective lots for delinquent sewer assessments, the defendant being the owner at the time of the assessments and sales. To the eomplaint the defendant first filed an answer, denominated a plea in abatement, by which he simply denied that no one is in possession of the premises, and set up that he is now, was at the time of the commencement of the suit, and for a long time prior thereto had been, in actual possession, and other facts indicating such possession, followed by an averment that the court was without jurisdiction of the subject-matter, and .a prayer that the suit be abated. This was treated as a plea in abatement, and a trial was had upon the issues tendered, resulting in a denial of the plea. Thereupon defendant filed an answer denying that plaintiff was the owner in fee, and that no one is in actual possession, and, the other allegations having been controverted,
There was much discussion at the hearing concerning the nature of the defenses interposed, it being contended upon the one side that the first answer was purely a plea in abatement, and, the court having disposed of the matter and passed on to the hearing under the subsequent answer upon the merits and the defendant not having appealed, that he is precluded from insisting upon a hearing here as to that plea; while on the other hand, it is insisted that both pleas constituted answers going to the jurisdiction of the court, and that the second hearing should be treated as a rehearing upon the same question, and therefore that defendant is entitled to a hearing in this court upon the whole matter, the trial being do novo. -
Under the ordinary equitable jurisdiction, to remove a cloud and to quiet possession to realty the bill could not be maintained without clear proof of both possession and legal title in the plaintiff: Frost v. Spitley, 121 U. S. 552 (7 Sup.
The decree of the court below will be modified accordingly.
Modified.