Rouse v. Riverton Coal Co.
142 P. 343
Or.
1914
Check Treatment
Mr. Justice Eakin

delivered the opinion of the court.

1. First we should call attention to the fact that pleading by cross-bill in equity is an anomaly under our code, for there can be no such thing. By Section 390,- L. O. L., cross-bills are abolished except in a law action, where a matter material to the defense is cognizable only in equity. To defenses to a complaint in equity, Sections 74, 401, L. O. L., apply, providing that any proper defense to an equity complaint may be interposed by counterclaim. Frequently pleading comes to this court filed as a cross-bill in an equity suit. When possible, we have treated such a cross-bill as a counterclaim: See Howe v. Kern, 63 Or. 487 (125 *157Pac. 834, 128 Pac. 818); Le Clare v. Thibault, 41 Or. 601 (69 Pac. 552); Krausse v. Greenfield, 61 Or. 502 (123 Pac. 392, Ann. Cas. 1914B, 115).

2,3. The relief sought by the cross-bill filed by Rouse asks only that the agreement between Urquhart and Rouse be reformed to conform to the facts set out therein; but neither in the complaint nor in the prayer is it alleged or shown that there is error in the contract, nor of what the error consists. The purpose seems to be to have the contract conform to alleged subsequent conditions. There is an effort on the part of Rouse to wrest from Urquhart all interest in the excepted five acres on the ground that Urquhart did not establish the boundaries thereof within 60 days from the 12th of January, 1904. Rouse was occupying the five-acre tract as the lessee of Urquhart, and, we are to infer, claims to have included such possession in his assignment of the option to the coal company; but he could not deny the title of his landlord, and probably that is the reason he thought he could not defend at law, and his successor is in no better position in that respect than was he. By the assignment the coal company did not acquire the possession adversely to Urquhart: See Jones v. Dove, 7 Or. 467; Willis v. Miller, 23 Or. 352 (31 Pac. 827). It is not denied that Rouse occupied the five acres under his lease until April 15, 1909, and so far as appears still so occupies. Therefore both he and the coal company are precluded from denying the title of Urquhart. Rouse could not by his own act change landlords without first surrendering his possession to Urquhart, which he has not done. The cross-bill of Urquhart alleges that Rouse has been in the actual use and possession of the five *158acres as tenant of Urquhart, which is admitted. The reservation is:

“Except the use of five acres of the surface thereof, which five acres is a part of the portion thereof which has heretofore been in cultivation, and is to extend back from the river front in such form as to include the dwelling-house and outbuildings thereon, and the boundaries of which five acres is to be definitely located by the said parties of the first part (Urquhart and wife) within 60 days from the date hereof (January 12, 1904).”

Thus its approximate location is specified as from the river front back to include the buildings on the cultivated ground, and Urquhart is given the exclusive right to fix the boundaries; but failure of the owner to fix the boundaries within the 60 days did not amount to a conveyance or an abandonment thereof to the optionee. In this case the owner did fix the boundaries before the action for possession was commenced and before the defendant was entitled to a deed. This was only an option, which on April 1, 1909, became a contract to sell, and is not like an exception from a deed, which would be construed to convey the whole land regardless of the attempted reservation: See Pearce v. Watts, L. T. 20 Eq. 492. However, although the reservation is incomplete, the means of making it complete and definite is provided to be exercised by the plaintiff, and was in fact made definite before defendant was entitled to the deed: See Loyd v. Oates, 143 Ala. 231 (38 South. 1022, 111 Am. St. Rep. 39). And defendant in the action is not shown even by a cross-bill to have been in any way prejudiced by the delay in marking the boundaries of the five-acre tract, but has occupied it during all this time without question.

The decree is affirmed. Affirmed.