23 Or. 131 | Or. | 1892
1. The facts in this case for the purpose of this appeal are identical with those in Coulter v. Portland Trust Co. 20 Or. 469 (26 Pac. Rep. 565), and fully appear in that case as reported, and therefore need not be detailed here. The important question on this appeal is the same as in the former case, and is the proper construction of the power of attorney from Howard H. Palmer to his wife, Rhoda A. Palmer, and whether this power of attorney authorized her to convey the land in controversy to W. G. Jenne for the consideration and in the manner attempted. These questions were all fully argued by able counsel, orally and in elaborate briefs, in Coulter v. Portland Trust Co., and this .court held (Chief Justice Strahan delivering the opinion) that under the power of attorney and the facts in the case, the deed to Jenne was unauthorized and did not convey the title; and this decision was recognized as the settled law of this case by the learned referee and court below.
Counsel for appellants now earnestly insists, in an able and learned argument, that the decision in Coulter v. Portland Trust Co. ought to be revised, and many cogent reasons are suggested in support of this contention. If this was an open question on this appeal, we might feel induced, in view of counsel’s argument, to carefully reexamine the question; but the law is well settled that a decision of this court upon a point distinctly made becomes, in all subsequent proceedings between the same parties, concerning the same subject matter, and upon the same facts, the law of the case by which we are bound whatever our views might be upon an original consideration of the matter: Wells Res. Ad. & St. D. chap. 44. ‘ ‘A previous ruling by the appellate court upon a point distinctly made,” says Mr. Chief Justice Field, “may be only authority in other cases to be followed and
This question was presented to and considered by the supreme court of the United States in the case of Washington Bridge Co. v. Stewart, 3 How. 413; and although the question was the important one of jurisdiction, it was notwithstanding held that the former decision of the court in the same case was conclusive of the rights of the parties, and could not be reconsidered upon a second appeal, — such an appeal bringing under review only the proceedings of the circuit court subsequent to the mandate. To the same effect are Davidson v. Dallas, 15 Cal. 75; Huffman v. The State, 30 Ala. 532; Hawley v. Smith, 45 Ind. 183; Parker v. Pomeroy, 2 Wis. 84; Page v. Fowler, 37 Cal. 100; Thompson v. Ross, 15 Md. 268. This doctrine has been recognized and applied by this court in Powell v. D. S. & G. R. R. Co. 14 Or. 22, and Applegate v. Dowell, 17 Or. 299, in the latter of which Strahan, J., speaking for the court, said: “Upon the second trial, no new facts that were material were developed, and the court below simply applied the principles of law announced by this court to the facts as they appeared, which resulted in a decree for the plaintiff, from which the defendant has appealed. Upon this appeal, we are not at liberty to depart from the law announced in the case on the previous appeal. The decision then made became the law of the case, binding alike upon the court and the parties on any subsequent appeal. ” Many other cases to the same effect might be cited, but those already noted are sufficient to show the uniformity with which courts adhere to the rule that a point once distinctly presented and decided by an appellate court becomes in all subsequent proceedings in the same case, the law of that case, binding upon both the courts and the parties.
2. Nor does the fact that this is a proceeding in equity and the former decision was made in the law cases, avoid the effect of this rule: Hawley v. Smith, 45 Ind. 183. This is but a continuance of the law case, and
3. We have been unable, after a diligent examination, to find any equity in this record entitling plaintiffs to relief in this suit. It was claimed by counsel that a court of equity should treat Mrs. Palmer as the equitable owner of the property because she was the daughter of Susan E. Jenne, through whom Palmer deraigned title; but the evidence shows, and about that there is no dispute, that Mrs. Jenne, in arranging for the partition of her land, expressly declared and intended that Mrs. Palmer should have no part thereof, and the deed was made to her son-in-law, Palmer, according to her express intention and desire. The land belonged to her, and she could dispose of it as she saw proper; and when it was conveyed to Palmer by her direction, with the intention on her part to give it to him, it vested the title in him as completely as if he had purchased and paid value for it, so far as this case is concerned.
4. It is also claimed that the attempt of Mrs. Palmer to convey the land in suit to Jenne, was a mere defective execution of a power against which courts of equity will relieve. The rule is undisputed that if there be a defective execution, or attempt at execution, of a mere power, a court of equity will, in a proper case, interpose and supply the defect:. Story Eq. § 169. But this is not a defective execution of a power: it is an absolute want of power to do the thing intended, and the rule above stated cannot apply. The conveyance to Jenne, under the law of this case, was not authorized by the power of attorney, and was an invalid act to which a court of equity cannot give validity under the pretense of aiding the defective execution of a power.
It is further contended that plaintiffs are entitled to a decree in this case because defendants have not tendered or offered, to tender to them the amount of money which Jenne paid to discharge the mortgage on the property at the time it was conveyed to him. But this fact can in no
The decree of the court below is therefore affirmed.