223 P. 934 | Or. | 1924
The allegations of the complaint upon which this cause was heard in the Circuit Court are as follows:
“1. That plaintiff is the owner in fee simple, and entitled to the immediate possession, of the following*522 mentioned and described real property situate in Multnomah County, State of Oregon, to wit:
“An undivided one-half of Lots 9 and 10, in Block 23, in Columbia Heights, according to the plat and dedication thereof on file and of record in the office of the county clerk of said county.
“2. That the defendant wrongfully withholds the said real property, and the whole thereof, from the said plaintiff, and denies his right thereto, or to any part thereof, and denies that plaintiff has any right, title or interest in or to the said real property or any part thereof whatever.
“3. That plaintiff acquired his title to said real property by descent from his father, Fred C. Twigger, or F. C. Twigger, who died intestate in Multnomah County, Oregon, on or about the - day of May, 1921, and who, at the time of his death was the owner of an undivided one-half of said real property. That plaintiff is the sole heir at law of said F. C. Twigger, deceased, said F. C. Twigger having died unmarried and without issue other than one son, this plaintiff, his surviving.
“4. That plaintiff is informed and believes that defendant claims to be the sole and exclusive owner of the said real property, and the whole thereof, by reason of the form of the deed by which the said property was conveyed to plaintiff’s father and said defendant (a copy of which said deed is hereunto annexed, marked Exhibit ‘A,’ and made a part hereof), and by reason of her further claim that she is the surviving spouse of the said father of this plaintiff, namely, F. C. Twigger, deceased, but that said claim is without any justification or foundation in fact or in law, as more particularly appears from the following recital of facts, to wit:
“On or about the 18th day of July, 1914, said defendant being at said time the lawful wife of one A. J. Ward, a decree of divorce, or pretended decree of divorce from said A. J. Ward was awarded the said defendant by the Circuit Court of the State of Oregon for Clackamas County. That within six months from*523 and after the granting of said decree, and, to wit, on the 31st day of the same July, 1914, said defendant, in the City of Stevenson, State of Washington, entered into a contract, or pretended contract of marriage with the said F. C. Twigger, the father of this plaintiff. That at the time of the said marriage, or pretended marriage of said Martha Ward, the above-named defendant, with the said F. C. Twigger, as aforesaid, the said A. J. Ward, husband of the said Martha Ward was still living. That at and prior to the said marriage, or pretended marriage, of said defendant with the said F. C. Twigger, and continuously ever since the enactment thereof, Section 7151, Remington’s Codes & Statutes of Washington, being the compiled laws of the said State of Washington, provided, and still provides, that certain marriages are prohibited, particularly including any marriage when either party thereto has a wife or husband living at the time of such marriage; and such has been the law in force in the said State of Washington continuously since some time prior to the said marriage, or pretended marriage of said defendant with the said F. C. Twigger, the father of this plaintiff; and no act validating, or attempting to validate, such prohibited marriages has ever been enacted by the State of Washington since the said marriage, or pretended marriage, of said defendant to the said F. C. Twigger. That immediately after the performance of the said marriage ceremony in the said State of Washington, and, to wit, on or about July 31, 1914, defendant and said F. C. Twigger, returned to the State of Oregon, where they resided together continuously until the death of F. C. Twigger, hereinbefore alleged. That some time after their said return to Oregon said F. C. Twigger purchased from one Mary E. Reeves, a widow, the real property hereinbefore described, taking and receiving from the said Mary E. Reeves, the then owner of said real property, the deed a copy of which is hereunto attached and marked Exhibit ‘A.’ ”
“Know All Men by These Presents, That I, Mary E. Beeves, (a widow) of Portland, State of Oregon, being of lawful age in consideration of ten ($10.00) Dollars to me paid by F. C. Twigger and Martha Twigger, Husband and Wife of Portland, State of Oregon, do hereby grant, bargain, sell and convey to F. C. Twigger and Martha Twigger, their heirs and assigns, all the following bounded and described real property situate in the County of Multnomah, State of Oregon.
“All of Lots numbered Nine (9) and Ten (10), Block numbered Twenty-three (23) in Columbia Heights in City of Portland as shown by the duly recorded plat.
“To Have and to Hold the above-granted premises with all the rights, easements and appurtenances thereto belonging unto the said F. C. Twigger and Martha Twigger their heirs and assigns forever. * * ”
The Circuit Court sustained a general demurrer to this complaint and, as the plaintiff did not plead further, awarded judgment in favor of the defendant from which the plaintiff appeals, assigning as error the sustaining of the demurrer.
The requisites of a complaint in ejectment are thus set down in Section 327, Or. L.
“The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage, such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had,”
If the complaint had stopped with the first two paragraphs, no question could arise but that it stated facts sufficient to constitute a cause of action, for thus far it contained all the essential elements of the statute just quoted. The pleader, however, has undertaken to declare the defendant’s ground of defense incorporating it in the statement of his grievance and it remains to be seen whether he has committed harakiri and destroyed his complaint by averring a defense for the opposite party.
As stated, the Washington marriage took place July 31, 1914. The act of the Oregon legislature of
“All marriages which were in all other respects regular, entered into prior to the passage of this act and before the expiration of six months from the date of a decree dissolving the bonds of matrimony as to one or both of the contracting parties, and there being no existing right of opening or vacating such decree, are hereby declared valid marriages.”
“The following presumptions, and no others are deemed conclusive: * #
“3. The truth of the facts recited from the recital in a written instrument, between the parties, thereto,' their representatives or successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration; * * ”
In this very deed under which the plaintiff claims is recited: “F. O. Twigger and Martha Twigger, husband and wife,” and the grant is to “F. C; Twigger and Martha Twigger,” and finally, the habendum is “unto F. C. Twigger and Martha Twigger.” In Orthwein v. Thomas, 127 Ill. 554 (21 N. E. 430, 11 Am. St. Rep. 159, 4 L. R. A. 434), there was drawn in question a deed to Thomas Osborn beginning with this language:
*529 “Whereas, Hannah Ratcliff, wife-of William Rat-cliff, of said state of Illinois, daughter and heir of the said JTames Hillman,” etc.
The court there said:
“It is manifest that the recitals of fact in this deed operate by way of estoppel upon Thomas Osborn, and after its record in the proper county, August 9, 1827, upon his grantees. As was said in Pinckard v. Milmine, 76 Ill. 453: ‘We recognize the doctrine of estoppel by the recitals in a deed, and that a party claiming under such deed cannot be permitted to deny any fact admitted to exist by such recitals’; citing Byrne v. Morehouse, 22 Ill. 603, and Rigg v. Cook, 4 Gilm. (Ill.) 336 (46 Am. Dec. 462); and adding: ‘The principle of these cases is, that whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or defend the possession of such rights.’ Thomas Osborn would not have been permitted, nor can the appellees, his remote grantees, now be heard to deny the facts recited in this deed, namely, that Hannah Hillman and William Ratcliff were man and wife, and that Susannah Osborne was the daughter of Hannah Rat-cliff. Hannah Ratcliff was then a married woman, and Susannah is presumed to to have been born in lawful wedlock, and this presumption must prevail until the legal presumption of legitimacy, and which attaches to every child, is overcome by clear and convincing proof; and the burden of showing illegitimacy is, by the law, cast upon those who allege it.”
A well-considered case is Jacobs v. Miller, 50 Mich. 119 (15 N. W. 42). The plaintiff in ejectment was the grantee of three children of one Margaret Hack. She was divorced in 1859 from their father, Jacob Hack, and afterwards in 1861 she married one Taufkirch, with whom she lived as his wife until 1870 when she died. It appeared in evidence that at the date of this marriage Taufkirch had a living wife in Canada but whether this was known to Margaret does
“The state of the action necessitates a showing by parol that Taufkirch and the woman Margaret were never seized with the estate manifested by the deed, but took one of a wholly different character. An estate in common must be made out and developed not only in opposition to the plain legal import of the deed, but on oral evidence. This is not consistent with the Statute of Frauds, Comp. 1., § 4692; Bullen v. Runnels, 2 N. H. 255.
“By the principles of the common law the legal effect due to the plain words of a deed cannot be contradicted by parties or privies in any collateral matter by parol evidence. The terms must stand and receive their just and legal significance. 2 Whart. Ev. §§ 1050, 1054, and cases: Jackson v. Foster, 12 Johns. (N. Y.) 488; Janhkson v. Robert’s Exrs., 11 Wend. (N. Y.) 422. The name of the grantee is part of the deed (2 Rolle’s Abr. 43), and where a deed is made to several individuals without designating in what proportions they shall hold, they will take in equal proportions precisely as though it had been detailed at length in the deed (Campau v. Campau, 44 Mich. 31; Treadwell v. Bulkley, 4 Day (Conn.), 395), and*531 no parol proof can be admitted to give the deed a different effect than such as the words in it legitimately import. Treadwell v. Bulkley, supra; Morse v. Shattuck, 4 N. H. 229; Gully v. Grubs, 1 J. J. Marsh. (Ky.) 388, 389, 390; 1 Cowen & Hill’s Notes, 217, 1428 et seq., 1442, 1444. The case before us is governed by the same principle.
“Among the rules which have become axiomatic is one that a party must be consistent and not contradictory in the positions which he takes. In the language of Lord Kenyon he must not ‘blow hot and cold’ at the same time. And one of the most important applications. of the rule is where a party endeavors to establish a right or title in himself under one provision or implication of a deed or other instrument by ignoring or contradicting another provision or implication which is destructive or fatally repugnant. Now, according to the reason of the rule, which applies as well to deeds as to wills, a person cannot claim under the instrument without confirming it. He must found his claim on the whole and cannot adopt that feature or operation which makes in his favor and at the same time repudiate or contradict another feature or operation which is counter or adverse to it.” Citing numerous precedents.
The same doctrine is announced in Hawley v. Dibble, 184 Mich. 298 (151 N. W. 712). There William Fitzgibbons was the owner of a tract of land which he conveyed to one Budway for a nominal consideration, who thereupon, for like consideration, conveyed the same to “William and Sarah Fitzgibbons, husband and wife.” After the death of William, his children by a former wife sued to recover an undivided half of the tract thus conveyed to him and his wife, Sarah, on the ground that at the time William was married to her he had not been divorced from his first wife. The court, however, held that they were bound by the recitals in the deed under which they claim and were estopped to raise the question
“The first question in logical order is whether the-recitals of the deed estop the heirs of the husband to deny the title of the wife.
“In Succession of Bellande, 42 La. Ann. 241 (7 South. 535), it was held that a recital in a'deed to the wife that the purchase was made ‘with her own separate and paraphernal funds for herself, her heirs and assigns,’ absolutely estopped the husband to deny the verity of the recitals, in the absence of proof of error, fraud, or violence. The court cited Maguire v. Maguire, 40 La. Ann. 579 (4 South. 492);.Kerwin v. Insurance Co., 35 La. Ann. 33. See, also, Brown v. Stroud, 34 La. Ann. 374, and Succession of Wade, 21 La. Ann. 343.”
Thus it is plain that in addition to the effect of the validation statute of 1919, the recitals of the deed under which the plaintiff claims show conclusively as against him that his father and Martha, the defendant, were at the time of the execution of that deed husband and wife because it is so recited in the conveyance itself.
In Bennett v. Hutchens, 133 Tenn. 65 (179 S. W. 629), it is said that:
“It is immaterial that the deed in the present case did not on its face name the grantees as husband and wife; nor is it material that we find in the deed' no words used to indicate a purpose in the grantor to create an estate by the entireties; nor a purpose in the grantees that such an estate should be conferred upon them. The estate, by the entireties, upon the execution of the deed, depended on the unity of the husband and wife, under the common law.”
Section 9852. ‘ ‘Every conveyance or devise of lands, or interest therein, made to two or more persons, other than to executors and trustees, as such, shall be construed to create a tenancy in common in such estate, unless it be expressly declared in such conveyance or devise that the grantees or devisees shall take the lands as joint tenants.”
Section 9936. “A tenant in common may maintain any proper action, suit, or proceeding against his cotenant for receiving more than his just-proportion of the rents or profits of the estate owned, by them in common; and joint tenancy is abolished, and all persons having an undivided interest in real property are to be deemed and considered tenants in common.”
It is said in Section 556, Or. L.:
*535 “Upon an appeal from a judgment, the same shall only be reviewed as to questions of law appearing upon the transcript, and shall only be reversed or modified for errors substantially affecting the rights of the appellant”;
The result of "the decision-- of the court below was right in substance, at least so far as the same is based upon the construction of the 'deed under which the plaintiff claims. The judgment is affirmed.
Affirmed.