54 P. 815 | Or. | 1900
Lead Opinion
Decided 24 October, 1898.
On Motion to Dismiss Appeal.
[54 Pac. 815.]
delivered the opinion.
Mr. Justice Thayer, in Minter v. Durham, 13 Or. 470, 481 (11 Pac. 231), was very much in doubt whether two or more tenants in common had the right to join as complainants in an action of ejectment, and said, in speaking for the court, that “tenants in common hold by unity of possession, but they hold several and distinct freeholds, and, under our statute, the action to recover possession of real property includes a recovery of the estate which the demandant has in it, and which must be a legal estate.” The converse of the proposition is undoubtedly true,— that the several and distinct freeholds of each co-tenant may be the subject of a separate action for its recovery. As in law, so in equity ; to quiet title, the party claiming the whole may proceed separately against each person claiming to hold such an interest in the disputed premises ; and, while it may be convenient — perhaps proper— to join all the co-tenants claiming adversely, yet it is not
This doctrine does not dispense with the requirement that all parties who would be affected adversely, and whose interests would be in conflict with the reversal or modification of the decree appealed from or sought to be reviewed, must have legal notice of the appeal. If the relief sought by the appeal is of such a nature or character that it cannot be granted without adversely affecting parties not before it, either voluntarily as appellants or duly notified as respondents, then the court is without power or jurisdiction to proceed, and the appeal must be dismissed. But, if it appears that the special relief sought
Opinion on the Merits
Decided 19 February, 1900.
On the Merits.
[60 Pac. 5.]
On September 17, 1896, Abbie K. Munger commenced an action against the South Portland Land Company, plaintiff, to recover possession of the undivided one-half of the west half of what is known as the “William and Mary T. Collins Donation Land Claim,” situated in sections 27 and 34, township 1 south, range 1 east of the Willamette Meridian, in Multnomah County, Oregon. On October 17, the South Portland Land Company filed an answer to the complaint, denying all the material allega
Omitting matters of form, it is alleged, in substance, that on November 13, 1865, a patent was issued under the donation act to William Collins and Mary T. Collins, his wife, for a tract of land containing three hundred and eighteen and fifty-four hundredths acres, situate in sections 27 and 34, township 1 south, range 1 east of the Willamette Meridian, the west half to the husband and the east half to the wife ; that on the twenty-second day
And the plaintiff further avers that the private seal affixed to said original deed is a printed impression of the letters “L. S.,” inclosed in a printed bracket, and has no scroll or sign, made with the pen or otherwise, as a seal; that the defendants claim and assert that said deed is not sealed, and is therefore void, which claim also casts a cloud upon plaintiff’s title, but that said William Collins intended to and did deliver said instrument to his wife as and for his sealed deed, and intended to seal the same, but by mistake of the scrivener failed to do so; that said mistakes were each and all of them mutual as to the parties to the said deed, who both intended that said description in the deed should be the true and correct description of the land, and free from each and all of said mistakes ; that at the time of the execution of said deed William Collins was the owner in fee simple of the west half of said donation claim, which he agreed, for the consideration of $2,000, to convey to his said wife, in fee simple, and that said quitclaim deed was executed in pursuance of said agreement, but that, by the mutual mistake of the parties, the premises were misdescribed ; that thereupon, and after the execution of said deed, William Collins delivered to the said Mary T. Collins the. possession of the said west half of said claim and the whole thereof, and she and her successors in interest, including this plaintiff, have ever since been, and are now, in possession, claiming to own the same in fee simple ; that on September 1, 1887, Mary T. Collins, for the consideration of $8,000, sold, and by warranty deed conveyed, the whole of said donation land claim to Albert L. Maxwell and James H. Huddleson, and that the plaintiff, by mesne con
Defendants filed a motion to strike out, and a demurrer to said amended cross complaint, which being overruled, they filed an answer, denying each and every material allegation of said complaint except the statement that the seal to the original deed is a printed impression of the letters “L. S.,” inclosed in printed brackets, and that it has no other scroll or sign, made with the pen or otherwise, as a seal; and, further answering, they allege, among other things, that the deed is not sealed, and is therefore void ;
after making the foregoing statement of the facts, delivered the opinion.
The court below decided the motion and demurrer adversely to defendants, whereupon they filed an answer, and we are called upon to determine how far they have waived the right to call in question the action of the court in that respect. As it may pertain to the motion Scheland v. Erpelding, 6 Or. 258, is to the very purpose. Erpelding commenced an action against Scheland for the recovery of wages as a brewer. Scheland filed an answer denying such indebtedness, and setting up as a further defense that Erpelding, during the time in which it was alleged the wages had accrued, was in equal co-partnership with himself in the brewery business, thus presenting a complete defense at law, notwithstanding Scheland, immediately on filing his answer in the action, filed a cross complaint against Erpelding in equity, setting up the co-partnership arrangement, that Erpelding had refused to continue in the business, and praying that the action at law be stayed, and for an adjustment of the co-partnership affairs. A motion to strike out the cross complaint was made and overruled. Erpelding thereupon answered the same, and also set up a co-partnership between the parties, but arising from a somewhat different arrangement, and, the issues being made up, a trial was had upon the equity side of the court, which resulted in a decree favorable to Erpelding, and Scheland appealed. It was there insisted that, as a complete defense at law had been pleaded, a court of equity was without jurisdiction to entertain the suit instituted by virtue of the cross complaint. The court, speaking through Mr. Justice Boise, answered the objection in this way : “As
The remedy at law to which the statute alludes must be plain, adequate, and complete, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. It is not enough that there is a remedy at law : Boyce’s Ex’rs v. Grundy, 28 U. S. (3 Pet.) 210, 7 L. Ed. 655. Mr. Chief Justice Fuller (in Gormley v. Clark, 134 U. S. 338, 349, 10 Sup. Ct. 554, 557, 33 L. Ed. 909, 914), states the doctrine thus : “The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would afford under the same circumstances.” See, also, Kilbourn v. Sunderland, 130 U. S. 505, 514, 32 L. Ed. 1005 (9 Sup. Ct. 594); Watson v. Sutherland, 72 U. S. (5 Wall.) 74, 18 L. Ed. 580; Witter v. Arnett, 8 Ark. 57. So, in Henderson v. Johns, 13 Colo. 280 (22 Pac. 461), it is said: “The remedy at law which defeats a suit in equity must be full, adequate, and complete. Anything less than this will not be sufficient to deprive equity of jurisdiction.” And again, in 11 Am. & Eng. Enc. Law (2 ed.), 200, the learned author says : “The construction
In the case at bar, the statute of limitations, if entirely run, would afford a complete remedy at law by giving the plaintiff in the equitable proceeding a valid legal title as against all the world. But the equitable defense interposed shows that the possession was obtained through the alleged defective instrument by which it was intended that the legal title should have been passed to plaintiff’s predecessors at the same time that the possession was given. For the purpose of passing the legal title, it is admittedly insufficient. Before it can be made effective for such purpose, it must be reformed, else, if it constitutes merely a contract to convey, the plaintiff is without its supposed muniment until a specific performance supplies its place. Equity is alone competent to administer the remedy in either event. If plaintiff should prevail on its possessory title alone, it would still be without the perfect muniment to which it is entitled, so that the relief in equity can be said to be more adequate and complete than the action at law could afford, as it may take cognizance of all matters in any way bearing upon or influencing the conditions, and is not only competent to determine the present ownership, but it may correct or supply a muniment, and thereby render plaintiff’s chain of title perfect from the original source.
Viewing the matter in another light, should the imperfect deed be construed as a contract to convey, before the statute of limitations could be putin motion, it would have to be shown that the purchase price had been paid, or the conditions upon which the plaintiff was entitled to the deed had been fully performed; for, if the purchase price had not been paid, or the conditions performed,
It is claimed that the cross complaint states neither a cause of suit for the reformation of the defective muniment or for a removal of the cloud or to quiet title ; that, if it states a cause for any purpose, it must be for specific performance, treating the deed as a contract to convey ; and hence it is urged that the plaintiff has mistaken its remedy. The prayer for general relief will, however, warrant the court in decreeing specific performance, if such relief is otherwise appropriate under the facts stated: Franklin v. Greene, 2 Allen, 519; Hill v. Beach, 12 N. J. Eq. 31. Looking to the allegations of the cross complaint, it would seem the pleader supposed that the equities of plaintiff’s case consisted in the reformation of the imperfect muniment or the removal of a cloud from its title; but at the trial here it was insisted that, if the complaint was not sufficient for either of these purposes, it stated facts upon which to base relief in the way of a specific performance of the contract to convey, treating the defective deed as such contract. In this latter view we concur, whatever may be said of the soundness of the pleader’s first impressions. The complaint states all the facts necessary and requisite to show a sufficient and valid contract and undertaking by William Collins to convey the premises in dispute to Mary T. Collins, his
The evidence adduced at the trial shows substantially the following facts : William Collins and Mary T. Collins, his wife, were the donees from the general government of the tract of land described in the cross complaint, known as the “William and Mary T. Collins Donation
Huddleson went upon the property to live the following June, and resided theró two and one-half years, and after the plaintiff became the owner thereof occupied it four months more, paying plaintiff rent therefor at the rate of $10 per month. On April 7, 1888, Maxwell and wife, for the consideration of $6,750, sold and conveyed by warranty deed to Huddleson their entire interest in
Affirmed.