Reeder v. Reeder

135 P. 176 | Or. | 1913

Lead Opinion

Mr. Justice Bean

delivered the opinion of the court.

Counsel for plaintiffs contend that the description of the exception in the deed of Catherine Reeder to J. L. Reeder is so vague and uncertain that it is impossible to determine what land was intended to be conveyed.

1. The position of counsel for defendants is that this question is res adjudicata. In the former suit wherein the title of defendant J. L. Reeder to the north half of the donation land claim of Simon M. and Catherine Reeder, with the exception of the “old home place” of 20 acres, was in question, it was incumbent upon plaintiffs to have asserted any right they might have had to the land in controversy affecting the title thereof. The title to the land was the very thing in issue in that suit.

There is no room for- controversy, under the authorities, as to the rule of law that an issue once determined upon the merits, in a court of competent jurisdiction, cannot be litigated again between the same parties. Such a judgment in a subsequent litigation for the same thing is an absolute bar and concludes the parties and their privies, not only as to every matter that was actually litigated, but as to any other matter that might have been litigated: 2 Black, Judg., § 504; La Follet v. Mitchell, 42 Or. 465, 472 (69 Pac. 916, 95 Am. St. Rep. 780); Pacific Biscuit Co. v. Dugger, 42 Or. 513, 517 (70 Pac. 523).

2. In their complaint in the case at bar the plaintiffs ignored the deed from Catherine Reeder to J. L. Reeder which had been decreed to be valid, and under which J. L. Reeder held title to the land therein described. By so doing, the plaintiffs again asserted title to this land which they failed to recover in the former suit. It is necessary at some stage of litigation to say “so shall it be.” However, if we waive this question, it appears to us from the record that the south side of the 20 acres of land excepted from the grant in the deed referred to bordered upon a fence, and the east side upon the bank of the river, leaving the two other sides only to be established by measurements so as to make the 20 acres as nearly square as possible. We do not understand that the tract described in the exception is a “float,” or could be moved, so to speak, in either direction. It could not be located farther to the east, as that would make it partly in the river and off the Reeder place, which of course was not contemplated by the deed, and it would not then be “on the north side of road fence.” It could not be selected farther west, as it would not then be “on the north side of road fence” according to the description contained in the exception, as the fence does not extend westward beyond the square 20-acre tract. For all practical purposes there is one side of square given, viz., the fence upon which to construct a square containing 20 acres.

F. L. Campbell, a competent surveyor, testified that he examined the place and that he could locate the 20-acre tract as set out in the deed, and from the description therein given. It also appears from the report of the referees appointed to partition the land that they did locate this tract from the description in the decree and deed. The description of land in a deed by which the property can be identified by a competent surveyor with reasonable certainty, either with or •without the aid of extrinsic evidence, is sufficient: Smiley v. Fries, 104 Ill. 416; Pennington v. Flock, 93 Ind. 378; Campbell v. Carruth, 32 Fla. 264 (13 South. 432); Flegel v. Dowling, 54 Or. 40 (102 Pac. 178, 135 Am. St. Rep. 812, 19 Ann. Cas. 1159).

3. Objection is made upon this appeal to that part of the report of the referees in regard to the tract known as Horse Shoe Island, for the reason that they awarded one part to J. L. Reeder, leaving the remaining seven parts, as described and divided, to be awarded to the respective heirs at law by choosing lots; and also that the referees should have marked and designated the lines by a proper landmark. We would understand the report of the referees to the effect that they ran lines and divided the different tracts to mean that they marked the same on the ground. However, it is not stated how the lines were designated. When the report of the referees was made, plaintiffs interposed specific objections thereto which included only the objection as to indefiniteness of description in the exception. Any irregularities or informalities in that report should have been called to the attention of the court, thereby giving an opportunity to correct the- same; and, by failing to do this, plaintiffs are not in a position now to complain of an incomplete or too general report of the referees. Evidently the referees were of the opinion that the plaintiffs were on good terms and could allot among themselves the different parcels on Horse Shoe Island, as it had been divided. The plaintiffs at that time did not appear to be dissatisfied with that part of the report.

4. Plaintiffs claim that there was error in the interlocutory decree for the reason that the court instructed the referees to locate J. L. Reeder’s portion of the old home 20 acres contiguous to the lands already owned by him. Had it appeared at the time of the report of the referees that their report was unfair or inequitable as to such allotment, plaintiffs would have reason to complain. As it was shown to be fair, no injury has resulted to them on account of such instructions.

Plaintiffs, if they so desire, upon proper application to the Circuit Court, should be permitted to have the partition of the Horse Shoe Island tract completed. With this provision the decree of the lower court is affirmed; defendants to recover costs. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.

Decided December 23, 1913.

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Rehearing

On Petition for Behearing.

(137 Pac. 191.)

Mr. Justice Bean

delivered the opinion of the court.

5. In a petition for rehearing, counsel for plaintiffs first call attention to a mistake in the description in the decree of the lower court of one of the tracts of land involved in his suit for partition, known as the “Old Home Place.” From the record it appears that the report of the referees correctly describes the tract, but the decree, after reciting the report of the referees, further describes the tract, omitting the north line thereof. This description should therefore be corrected so as to conform to the report of the referees.

6. As to the costs, Section 483, L. 0¡ L., provides in part that the costs of partition, including the fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree. The costs in the lower court and in this court will therefore, according to that section, he apportioned, one eighth thereof to the defendants and one eighth to each of the plaintiffs.

With the exception of these modifications the former opinion is adhered to. The rehearing is denied.

Modified: Rehearing Denied.

Mr. Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.