151 P. 706 | Or. | 1915
Lead Opinion
delivered the opinion of the court.
The plaintiff moves to dismiss the appeal for the reasons: (1) That the record shows that this appeal is from a decree, and the testimony, depositions and other papers containing the evidence, etc., do not accompany the transcript; (2) that the defendants failed to file their abstract within 20 days from the filing of the transcript as required by the rules of this court; and (3) the transcript and abstract do not intelligibly present any question to be decided by the court.
“When an appeal from a decree in a suit in equity which is to be tried anew on the testimony, and no-transcript thereof has been sent up, the only question that can be considered is: Does the complaint state facts sufficient to constitute a cause of suit? Howe v. Patterson, 5 Or. 353; Wyatt v. Wyatt, 31 Or. 531 (49 Pac. 855); Morrison’s Estate, 48 Or. 612 (87 Pac. 1043). The sufficiency of the complaint, though not now challenged, is never waived, arid may be objected to at the trial in this court, and, this being so, the motion to dismiss should be denied, and it is so ordered.”
Motion Denied.
Opinion on the Merits
Modified October 17, 1916.
Bebearing denied November 11, 1916.
On the Merits.
(160 Pac. 373.)
Department 2. Statement by Mr. Chief Justice Moore.
This is a suit to set aside a decree so far as it affects the plaintiff, Margaret St. Martin, and to partition real
The answer admits that William M. Hendershott and Libbie E. are husband and wife; that the latter is the owner of an undivided one half of the premises; that Legault holds a mortgage upon the land; and that the decree referred to was entered. It is further substantially averred that the plaintiff ought to be estopped to controvert the validity of such decree. For another defense it is alleged that William M. and Libbie E. Hendershott are the owners in fee of the entire tract
The reply denied all the allegations of new matter in the answer, except that Mrs. Hendershott was the owner of an undivided half of the land and the payment of the taxes stated. For a further reply it is alleged that in perfecting the title to the real property the plaintiff had paid out more than $250, which sum should be offset against the taxes so paid. The cause was tried, and from the testimony received the court made findings of fact and of law, and, based thereon, granted the relief prayed for in the complaint, and appointed referees to partition the land. From this decree the defendants appeal.
Modified. Rehearing Denied.
For appellants there was a brief over the names of Mr. Horace B. Nicholas, Mr. W. G. Nicholas and Mr. B. W. Nicholas, with oral arguments by Mr. Horace B. Nicholas and Mr. W. G. Nicholas.
For respondent there was a brief over the names of Mr. John Bayne and Messrs. Richards & Richards, with oral arguments by Mr. Bayne and Mr. O. R. Richards.
Opinion by
An examination of a transcript of the testimony convinces us that the former suit was instituted and
Mr. Hendershott testified that he lived on the land until September, 1896, when his tenants took and held possession for him until September, 1901, when the house on the premises was burned before the ten years ’ adverse possession had fully run, but that Mrs. Edna Carpenter, who was then occupying the building in his right, left in another domicile on the land some household goods which she did not remove until the following January, thereby completing the full measure of the statute of limitations. He explains his several ineffectual attempts to purchase Mrs. St. Martin’s interest in the real property by stating upon oath that he did not then know Mrs. Carpenter’s possession fully completed the prescribed limit, thereby defeating the plaintiff’s right.
It is argued by defendant’s counsel that the deed, executed by John Arquette and his brother Michel to Mr. Hendershott, purporting to convey the entire premises, having been duly recorded, thereby imparted
“Now, you and Mrs. Hendershott don’t want to claim more than that half” of the land “now do you”?
He replied:
“Yes.
“Q. Why?
“A. Because, when they started in to beat us out of our share, we were going to fight on adverse possession; never would have been any question if they hadn’t attacked our rights there — not one bit; there is absolutely no question.”
On redirect examination of this witness the defendants’ counsel, referring to the period of limitation and to the land, inquired:
“During the ten years did you claim to own it?”
He answered:
“Why, I had a deed to the whole thing.
“Q. And you claimed to own it?
“A. Yes, sir.”
For the error committed in offsetting the plaintiff’s claim against that of the defendants, the decree is modified so as to require her, as a condition precedent
In all other respects the decree is affirmed.
Modified. Rehearing Denied.