| Or. | Mar 20, 1923
Plaintiff, claiming to be the owner of an undivided one-half interest in the lands described in the complaint, seeks to obtain a partition of said lands and to have her portion thereof allotted to her so that she can hold the same in severalty. She bases her right and estate in said lands upon a deed executed by the defendant conveying to her an undivided one-half interest in said lands and upon a decree dissolving the marriage relations between the plaintiff and the defendant, which, by its terms, confirms plaintiff’s title to an undivided one-half interest in said lands. By his answer the defendant seeks to impeach the validity of said deed for fraud in its procurement as well as in the consideration thereof, and to have the decree of divorce vacated and set aside on the ground that the said decree was fraudu-. lently obtained. By the allegations of the answer the defendant presents an issue arising out of the relation of the plaintiff and defendant to the common property involved in the suit, which, if sustained, requires the annulment and cancellation of the deed and the
“When a suit for partition,” says Mr. Freeman in his work on Cotenancy and Partition (2 ed.), Section 505, “is in a court of equity, or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. ‘He who seeks equity must do equity.’ Hence whoever, by a suit for partition, invokes the jurisdiction of a court of equity in his behalf, thereby submits himself to the same jurisdiction, and concedes its authority to compel him to deal equitably with his cotenants. As the equities of the cotenants may arise from a variety of circumstances, it follows that the assertion of these equities necessarily introduces into partition suits a great variety of issues, and calls for various allegations in the respective complaints and answers which would not be required in ordinary suit for partition not complicated by any special equities between the cotenants.” In the next section he says: “The equities which may be adjusted and enforced in a suit for partition are such only as arise out of the relation of the parties to the common property.” In a footnote, he quotes from Dall v. The Confidence Silver Mining Co., 3 Nev. 535, in part as follows: “and in disposing of the cases for partition, the equities of the respective
Equitable jurisdiction over suits for partition arose from the inadequacy of the legal remedy, and “As early as the reign of Elizabeth, partition became a matter of equitable cognizance; and now the jurisdiction is established as of right in England and in the United States.” 4 Pomeroy, Equity Jurisprudence (3 ed.), § 1387. This equitable jurisdiction of suits for the partition of real property is recognized and expressly conferred upon courts of equity by statute in this state: Sections 435-483, inch, Or. L.
Hence, it follows that this court in this suit has full and complete jurisdiction to award to either party, plaintiff or defendant, such equitable relief as, under the issues raised by the pleadings and under the facts established by the evidence, such party is equitably entitled to.
It was established by the evidence in this cause that the plaintiff and defendant intermarried on August 10, 1915; that the defendant was hard-working, industrious, saving and thrifty, and at the time of the marriage was well past the meridian of life; that for years he had been a laborer working at Portland, Oregon, as a stevedore and longshoreman, and had accumulated considerable property consisting of houses and lots in Portland, Oregon; that he was occupying one of these houses and renting the others; that the plaintiff, who seems to be much younger than the defendant, was a trained nurse, and at the time of the marriage possessed neither money nor property of any kind. After the marriage the defendant took the plaintiff on a trip to San Francisco and then
“I went up and she was feeling awfully bad, said she fell down the stairs at the Y. W. and may have broke her ribs. I said, ‘What have I done to you that you have done this?’ ‘Oh, you know, you did not treat me right,’ she said. I said, ‘I am willing to treat you right.’ She said, ‘If you died I wouldn’t get one penny.’ I said, ‘Nonsense, whatever is coming to you, the law allows.’ She said, ‘You have got to give me a third interest in the place and everything you have in order to protect me.’ ‘My goodness,’ I said, ‘If it is that bothering you so bad I will deed you two or three houses, I will deed you the house you live in.’ I said, ‘Let’s go up to Mr. Croat and draw up the deed.’ She didn’t ask particular thing. Mir. Croat said, ‘You are liberal, the law only*131 allows her a third.’ ‘I said, ‘Give her a half.’ ‘Now, understand, Catherine,’ I said, ‘this is final.’ ‘I don’t believe in divorces, my creed don’t allow it, now it is distinctly understood there will be no more divorces, I am doing this to protect you.’ She said, ‘I am satisfied, and will be no more-trouble. ’ ”
Her version of the affair is as follows:
“Q. After you brought the first divorce suit what took place then between you and Mr. Murray? A. I went over to the Y. W.; I was staying there and Mr. Murray came over I think the third or fourth day, and he told me that if I would come back and live with him and not disgrace him he would give me all his property, all the money I wanted, a key to the strong box and that I could go and collect the rents and use all the money I wanted and he would put the other money in the bank. I said that Mr. Murray didn’t have enough money for me to go back and live with him, that his property wasn’t any inducement, that I married him because I was in love with him and went to live with him because I wanted a companion and Mr. Murray was exceedingly nice to me for two months.”
Thereupon and on March 27, 1919, the defendant executed and delivered to the plaintiff the deed in question conveying to her one half of his real property and the parties returned home and resumed their marital relations. They lived together until some time in June following, when the plaintiff informed the defendant that her mother in New York City was ill and requested the defendant to furnish her with money to make a trip to New York to see her mother. The defendant provided the money as requested and the plaintiff left for New York. How long she remained away the record does not disclose, but she was gone for several months and returned by way of San Francisco, where she was met by the defendant who brought her to their home at Portland. She re
The defendant contends that the sole consideration for the execution and delivery of the déed was plaintiff’s promise to dismiss her then pending divorce suit, and thereafter to live and cohabit with him and
After a careful consideration of all of the testimony offered in this cause and of the records and files of the cause, we are convinced that the plaintiff, in obtaining a deed for an undivided one-half interest in defendant’s property, not only induced the defendant to believe, but. that she expressly promised, that whatever difficulties, if any, may have existed between them prior thereto, would be forgotten and forgiven by her and that they should no longer be deemed or considered by her as grounds for a later divorce, and that by her words and conduct she led the defendant to believe that she would, in good faith, resume her marital relations with him.
The evidence thoroughly satisfies us that the plaintiff, in consideration of the execution and delivery of the deed, did expressly promise, the defendant to resume her marital relations with him, and that she would not subsequently sue him for divorce. Even if the plaintiff did not expressly make this promise, the law would imply such a promise upon her part
If the evidence in this case had disclosed that subsequent to the time of the execution and delivery of the deed, the defendant had been guilty of conduct toward the plaintiff entitling her to a divorce, such misconduct upon his part would have relieved her from her obligation not to commence suit for divorce. But a careful inspection of the complaint filed by her in the second divorce suit shows no allegation by her of any misconduct upon the part of the defendant subsequent to the execution of the deed, except that contained in the following quotation:
“Plaintiff accepted defendant’s offer of reconciliation and dismissed her said suit and returned to live with the defendant, but defendant has in no wise mended or bettered his conduct toward the plaintiff. On the contrary his conduct and behavior in all respects hereinbefore alleged has grown steadily worse and plaintiff’s life with defendant has been rendered so unbearable that she is no longer able to endure it.”
This excerpt from her complaint charges the defendant with no specific act and merely alleges her
The plaintiff was called as a witness in this suit by the defendant, and she was interrogated by defendant’s counsel as to the charges and matters referred to in her complaint in the divorce suit, and from her testimony it is apparent that she had no legitimate ground of complaint, and was not entitled to a divorce upon any of the grounds alleged in her complaint. In that complaint she unequivocally stated, in effect, that notwithstanding the defendant was a man of considerable property and means, and always had money at his disposal, had always failed, neglected and refused to provide her with sufficient money to adequately meet the necessary household expenses and had required her to conduct the household on an allowance of $20 per month during their entire married life, which sum was wholly inadequate for such purpose. During her examination it was disclosed that this statement upon her part was a pure and baseless fabrication. From her own admissions, it appears that she had unlimited credit with two of the largest department stores in Portland, and that she exercised this credit without stint. Other evidence, convincing to us, shows that she was supplied with a large portion of defendant’s income. Her testimony having convicted her of making groundless charges against the defendant, and the evidence having conclusively established that these charges were baseless and unfounded, and were made without the slightest regard for the truth for the mere purpose of
By her complaint the plaintiff charged the defendant with cruel and inhuman treatment, but the evidence satisfies us that he was a kindly, affectionate, generous and faithful husband, and that the plaintiff herself was of a grasping and avaricious disposition, and was interested in him only to the extent of despoiling him of his property. It is unnecessary for us to review this testimony any further or to cast needless reflections or aspersions upon the motives of the plaintiff further than to say that the plaintiff’s conduct toward the defendant in respect to securing his property for herself, does not entitle her, in our judgment, to equitable consideration, and it is therefore the duty of the court to leave her where she was before she had obtained an undue advantage over the defendant.
Having accepted a deed from the defendant for one half of all of his property as a consideration for her dismissal of the divorce suit, and having promised to resume and maintain her marital relations with the defendant, there was an implied obligation at least upon her part that she would not resume those relations for the purpose of further despoiling the defendant of his property. After living with him but a few months, and after having been the recipient of his generosity, she again sued him for a divorce and again asked for an additional interest in his property. It appears that he was induced, through misapprehension of his rights, to sign a stipulation which, on its face, was a fraud and against public policy. The lower court, in ignorance of the fraud, was in
“It is. hereby stipulated between the parties to the above-entitled cause that the same shall be heard upon the evidence which the plaintiff may offer; that in case a divorce is granted by the court on the plaintiff’s proof, property and business matters shall be adjusted between the parties on the following basis, and the decree of the court shall provide accordingly.”
The fair import of this language is that the plaintiff shall be permitted to obtain a divorce upon such evidence as she shall offer, and that the defendant himself shall not in any way oppose her getting the divorce, nor offer any proof in his own behalf, no matter how false or fraudulent the proof offered by her might be.
The public interest in divorce suits in this state is ,such that a stipulation of this kind is against public policy, and anything done in carrying out the fraudulent scheme intended is fraud. This stipulation was carried out. The plaintiff herself offered testimony. The defendant offered none. And defendant paid over the costs covered by the stipulation and delivered the $150 in Liberty Bonds and paid to the plaintiff the stipulated sum of $600 in money and she secured her divorce, and it is this decree of divorce so secured that the defendant seeks to have vacated and set aside as fraudulent and against public policy. By the decree so secured in that suit, the plaintiff’s rights and interest in the lands conveyed to her by her husband were confirmed. To reach this property, it is necessary to set aside not only the deed, but the decree of divorce itself. The fraud charged in the answer has been established by clear, satisfactory and convincing evidence. This fraud en
For these reasons the decree of the lower court will be reversed, and in lieu thereof a decree will be entered annulling and canceling the said decree and vacating and setting aside the said decree of divorce rendered in the lower court in favor of the plaintiff, Catherine A. Murray, and against the defendant, Patrick Murray. The plaintiff and the defendant will be restored and reinstated to all their original marital rights and duties. The defendant, Patrick Murray, will be restored to and reinvested with all of his original rights and the sole ownership of the lands mentioned and described in said deed.
Reversed. Rehearing Denied.