103 P. 648 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
“A suit shall only be commenced within the time to commence an action as provided in Chapter 2 of Title I ■of this Code; and a suit for the determination of any right or claim to or interest in real property, shall be deemed within the limitations provided for actions for the recovery of the possession of real property; * * provided, this section shall not be construed so as to balan equitable owner in possession of real property from defending his possession by means of his.equitable title.”
There are other provisions in the section which affect suits relating to United States and State patents to lands, authorizing an equitable defense in an action of ejectment brought by the patentee; but the' proviso above quoted is the only portion of the section involved here, and by virtue of that proviso the statute of limitations cannot run against an equitable owner in possession so as to prevent him from defending his possession by means of his equitable title. In the cases of Spaur v. McBee, 19 Or. 76 (23 Pac. 818) and Rowland v. McCown 20 Or. 538 (26 Pac. 853). Mr. Justice Strahan refers to this proviso as an enlargement of the jurisdiction of courts of law; but in both "cases it was mere dictum. Also, in Coles v. Meskimen, 48 Or. 55 (85 Pac. 67) where this statute was evidently relied on, Mr. Chief Justice Bean passes it over with the statement that “an equitable defense cannot be pleaded in an action at law, unless, perhaps, that right is given by Section 392, B. & C. Comp., in actions to recover- the possession of real property—a question we need not now consider.” Therefore we consider the effect of that proviso an open question at this time.
From this history of the course of this legislation, it was evidently intended by the amendments of 1870 to limit the application of an equitable defense in an action at law to a cross-bill in which affirmative relief might be secured-. In discussing the scope of the jurisdiction in the cross-bill provided for in Section 391, B. & C. Comp., in S. P. L. Co. v. Munger, 36 Or. 472 (60 Pac. 6) being a cross-bill to enjoin an action of ejectment, in which the defendant pleaded his equitable title, Mr. Justice Wolverton says that the cross-bill is an innovation on the common law, which prohibited the setting up of an equitable defense to an action at law, and quotes from Hatcher v. Briggs, 6 Or. 31:
“The general doctrine resulting from the best considered cases is that the defendant can defeat the action on equitable principles, and not only defeat the action, but secure affirmative relief, and that, as the defendant becomes an actor and the pleading an equity pleading, the sufficiency thereof in substance, though not in form, is to be determined by the application of the general rules of equity pleading, and that, as an equitable defense may be set up to a legal claim, it would be inconsistent to lay down the doctrine that, because one party is asserting a right under a legal form, equity will not protect the equitable rights of the other party to the same extent as though the proceeding was under equitable forms.”
Thus a cross-bill is recognized as the appropriate remedy by which an equitable defense may be made available, and therefore the amendment of Section 392, above quoted, can only apply to an equitable defense to an action of ejectment set up in a cross-bill by a defendant in possession. Hence, as long as the defendant is in possession of the premises, he shall not by lapse of time lose his right to plead the equitable defense against1 the legal title. This proviso of Section 392 does not by
2. Defendant relies on two defenses: (1) The oral contract of purchase and part performance thereunder as sufficient to take the case out of the statute of frauds at law; and (2) he pleads the same facts as an equitable estoppel. Facts that would be sufficient in equity to take an oral contract out of the statute of frauds might not be sufficient to constitute an equitable estoppel either at law or in equity. Therefore these two defenses are independent of each other, though both are based on the same facts.
3. If the defendant’s possession were under a written contract of purchase, and he was not in default, then his possession would be legal, and, if sued in ejectment, such contract would be a good defense at law; the contract being competent evidence of its terms, although plaintiff could not have specific enforcement of it in that action, and that being obtainable only in equity. This statement may be taken as conceded, and needs no citation of authority to sustain it.
4. The question then arises: Can an oral contract of sale of real property be alleged and proved at law in defense of his possession by the vendee? Such an oral
5. Then we come to the question whether, under the facts alleged and proof offered, plaintiff is estopped from prosecuting the ejectment action, and is' not equitably estopped from pleading title by reason of an oral contract for the sale of real property, even though the vendee is in possession and has made valuable improvements and payments thereunder. The estoppel, to constitute a defense of possession in such a case, either at law or in equity, depends upon representations that title has passed, or such conduct on the part of the plaintiff as justifies the possessor in assuming that he has a good title.
6. An agreement by the vendor that he will convey upon the fulfillment of the terms of sale is not a repre
The fact that the agreement for the sale was oral appeared only from the evidence, and the court admitted evidence of the agreement on the theory that such an agreement could be proved by a defendant in an action of ejectment in defense of his possession thereunder, and the instructions were based on the same assumption. It is not necessary to refer specifically to the evidence, or to the rulings thereon.
These rulings were error, and the judgment is reversed and the cause remanded for such further proceedings as may be proper and not inconsistent with this opinion.
Reversed.
Dissenting Opinion
delivered the following dissenting opinion.
7. I regard a judicial construction of Section 392, B. & C. Comp., not essential to a determination of this controversy. I think it not improper, however, to suggest that the judicial dictum alluded to in Spaur v. McBee, 19 Or. 76 (23 Pac. 818), and Rowland v. McCown, 20 Or. 538 (26 Pac. 853), when taken together with the express declaration in the section mentioned, to the effect that none of the provisions thereof shall be so construed as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title, whatever may be the construction placed thereon, discloses not only an intention by the legislative department of our State to recognize such a defense, to the extent, at least, of permitting a defendant to' maintain his possession in that manner—constituting thereby a legislative construction of the law as it existed prior to that time—but that in the opinion of the court at the time the decisions were rendered, such defense should be available; and this appears to be in consonance with the progressive spirit manifested by such eminent authority as Pomeroy in his unexcelled work on Code remedies (Sections 87-97, inclusive [3 ed.]), and also Smith’s Leading Cases, vol. 2, p. 734. And it is well to note that the announcement of the rule upon the subject in Spaur v. McBee and Rowland v. McCown is entitled to more weight than is usually given to mere dicta. The question was there argued and presented, and, no dissent having been recorded to the views thus expressed by Mr. Chief Justice Strahan, we must presume that the views of that distinguished jurist were concurred in by each of the other members of the court, no less eminent, consisting of Justices Lord and Bean. It amounts to more than a mere declaration of the views of the writer of the opinions, known as dicta or obiter
I think, however, that, independent of Section 392, our Code clearly recognizes the right to maintain in ejectment, for the purpose of retaining possession of real property, the defense relied upon in this action. Sections 325 to 330, inclusive, of B. & C. Comp., provide a procedure in such actions, and indicate what is necessary to be pleaded on the part of the defendant, and the character of the defense which may be asserted. Nor are any of the provisions in these sections inconsistent with any of the provisions of the statute considered in the majority opinion. For example, Section 391 merely gives
Now, as pointed out, the statute expressly provides that, in order to maintain an action in ejectment, the plaintiff must (1) set forth the nature of his estate in the property, and (2) that it must appear that he is entitled to the immediate possession thereof, and (3) that the defendant wrongfully withholds possession of the same from him; and, as to the defendant, it declares, inter alia, that: “The defendant shall not be allowed to give in evidence any estate in himself * * or any license
It is stated in the majority opinion “that defendant relies on two defenses—the oral contract of purchase, and a part performance thereunder—as sufficient to take the case out of the statute of frauds at law. * *” I am unable to agree that this statement is in harmony with the record. The contract of purchase is pleaded in the answer, and facts are averred showing a full compliance therewith by defendant prior to the institution of the action; that possession was taken under it, $1,500 in improvements placed upon the land, and the purchase price fully paid; and that nothing remains to complete the transaction, in strict conformity with the agreement, except the formality of plaintiff’s execution of the deed as agreed. And, giving to the evidence adduced by defendant the favorable effect which the jury was entitled to, the facts are that decedent, for a valuable consideration, purchased the property involved, and, relying upon the contract of purchase, entered into possession, improved the same to the extent of $1,500, and paid the purchase price in full—all of which it appears was performed under the oral contract of purchase. The defendant is administratrix of the estate of the decedent, and holds possession under and by virtue of such executed oral contract. Can it then be said that the possession of the defendant is wrongful, or that in the face of these facts the plaintiff is entitled to the immediate or any possession thereof? I think not. As I understand the majority opinion, it holds that defendant must fail because of her inability, under the statute of frauds, to offer proof of these facts. Proof of this character was by this court held admissible in West v. Washington Ry. Co., 49 Or. 436 (90 Pac. 666) and Sprague v. Jessup, 48 Or. 211 (83 Pac. 145: 84 Pac.
No one questions but that in this State adverse possession for the statutory period may be successfully maintained in ejectment, and may be established by parol against one holding a patent, warranty deed, or other evidence of title. Title may be thus acquired regardless of the good faith of the occupant, even by a trespasser. See authorities collated from this court on this point in Gardner v. Wright, 49 Or. 609, 627 (91 Pac. 286). Must the rights of a trespasser claiming by reason of his adverse claim for the statutory period be recognized as superior in law to one who, as in this instance, in good faith, under a contract of purchase, and by permission of the holder, enters into possession, complies fully with the terms of his agreement by paying the purchase price in full, and by reason thereof remains in possession? Yet such is the effect of the conclusion reached by the majority. In this action the pleadings and proof disclose that under this contract the decedent, together with the defendant, has held the premises actually, openly, and adversely to plaintiff under claim of ownership for more than the period prescribed by the statute of limitations, prior to the commencement of this action. It is pleaded and asserted as an estoppel, it is true; but it is sufficient for either purpose, and, unless the sections of the statute quoted must be held to require it, such proof would seem admissible without pleading such defense affirmatively. 1 Cyc. 1141; 7 Ency. PI. & Pr. 340; 13 Ency. PI. & Pr. 284. A showing of the 10 years’ adverse possession alone is sufficient to give defendant a legal title such as to defeat plaintiff’s action.
Wilson v. Campbell, 119 Ind. 286 (21 N. E. 893), is a case analogous as to both the law and the facts involved. The defendant there had entered under a parol contract of purchase from his father; the facts being almost identical with the case in hand. After his father’s demise, and after the expiration of the time prescribed by the statute of limitations, an action was brought involving the rights acquired under the oral contract of purchase. In considering the law applicable thereto, Mr. Chief Justice Elliott observes: “The parol agreement, if valid between the immediate parties, cannot be successfully assailed by their heirs or grantees, even if fraudulent as to creditors. * * The defendant in this case relies upon possession under the parol agreement, and as that possession continued for 20 years, his title became one in fee
I regard the decision of this court in the case of Coles v. Meskimen, 48 Or. 54 (85 Pac. 67), as conclusive on the questions here presented. No distinction is made in that case as to whether it was a parol contract or otherwise. In fact, the records disclose that the defendant held the possession under an oral agreement only partly performed.- Mr. Justice Bean, speaking for the court, in referring to the plaintiff therein, observes: “He must show not only that he has a legal estate in the property, but also a present right to the possession. Section 326, B. & C. Comp. Any matter therefore which goes to disprove the fact of a wrongful withholding is a legal defense, whether it shows defendant’s interest in the premises to be legal or equitable.” It is made clear therein that a party in possession may, for the purpose of shielding, or enabling him to maintain possession, plead and prove a parol contract either partly or fully executed, under which possession was rightly taken and held. The majority opinion seeks to distinguish this case; but I think the conclusion announced amounts to an extinction, rather than a distinction. That case appears clearly in point, is well reasoned, and sustained by eminent authority, and I believe it to be in full harmony with the letter and spirit of our statute. It is suggested that there the pleadings seem to admit the oral contract of purchase; but it was not decided on that theory. An examination of the records and briefs upon which the cause was submitted discloses that the point' by which it is sought to distinguish this case from the one under consideration was not suggested. Taking this feature in connection with the language used in the opinion, it is clear that the conclusion there reached was based upon the theory that a partly performed parol executory contract of purchase is a good defense in an action in ejectment, by one in
I fully concur in the views announced by counsel for respondent in their belief that it is an unexampled doctrine to hold “that a party by admitting in his pleading that he made an oral contract for the sale of land, and that such contract was never reduced to writing, thereby waives the protection of the statute. ■ It is also a novel doctrine * * that a party need not have a cause of action when he files his complaint, that he can swear the defendant wrongfully withholds possession of his land, and can rely upon defendant coming into court, setting up a void oral contract, and then admit that he made that contract, and thus defeat his own right of recovery.” And a recognition of such practice, it occurs to me, can but result in rewarding one who may have but little regard for the sanctity of an oath, and punish him who in his honesty, may admit an oral contract; in other words, he who makes an oral contract, and says so, takes the case out of the statute of frauds, and is bound by it, and must submit to a trial in ejectment, while he who makes a solemn oral agreement, but denies it, may keep both the purchase money and the land, unless his legal antagonist, in order to get justice, resorts to 'another forum than that in which plaintiff has proceeded against him. This
The plea of estoppel, relied upon, I think sufficiently pleaded and proved, and it constitutes a complete defense to this action. My views upon this subject cannot be more clearly stated than to quote from Warvelle, Ej., § 260, where that eminent author, after noting that at a very early period it became a rule of property in courts of equity that, where a man remains silent when good faith requires him to speak, he cannot afterwards be heard to deny that which his conduct unmistakably declared to be true, and upon the faith of which others have acted, observes:
“But while this doctrine originated in a court of equity, where it is freely applied to all species of property, it has also long been employed in courts of law in matters pertaining to chattels. There is, however, no good reason, at this time and under the rules of modern practice, why its application should be restricted in courts of law. As has been well said, protection against fraud is equally necessary, whatever may be the interest at stake; and there is nothing in the nature of realty to exclude those wise and salutary principles which are now adopted without scruple, in both jurisdictions, in the case of personalty. Wherefore we find a number of instances where a plea of equitable estoppel has been permitted to operate as a sufficient defense in an action of ejectment.”
To the same effect, Smith’s Leading Cases, vol. 2, p. 734.
For the reasons given, I feel impelled to record my dissent from the conclusion announced by the majority of my associates, and am of the opinion that the judgment of the court below should be affirmed.
On Motion to Recall Mandate.
delivered the opinion of the court.
This is a motion to recall the mandate issued to the court below, for the purpose of taxing the costs of this court. The cause was tried at Pendleton during the May term, 1909, decided at Salem August 17th. A petition for rehearing was filed and denied October 26th. The mandate was issued November 4, 1909. The cost bill was tendered to the clerk November 11th, who refused to file the same for the reason that it came too late.
8. If we were to adopt counsel’s construction of Section 568, B. & C. Comp., which provides that “such statement of disbursements 'may be filed with the clerk at any time after said five days,' but not later than the first day of the next regular term of the court occurring after the expiration of said five days,” the refusal of the clerk to file the cost bill was proper, as it was not tendered within five days after the decree nor within the term.
9. It is held, in Hammer v. Downing, 39 Or. 524 (64 Pac. 651: 65 Pac. 17, 990: 67 Pac. 30), that the judgment of the Supreme Court is final when the opinion is handed down, and a motion for a rehearing, if filed, only suspends the judgment from the date of filing. However, this court has held, in Heywood v. Doernbecher Mfg. Co., 48 Or. 369 (86 Pac. 357: 87 Pac. 530), that Section 568, B. & C. Comp., as amended by Laws .1903, p. 209, does not apply to the taxation of costs in this court. This holding was affirmed in Allen v. Standard Box & Lumber Co. 53 Or. 10 (98 Pac. 509), and Sommer v. Compton, 52 Or. 173 (100 Pac. 289), and, having re-examined these cases, we are confirmed in the opinions there expressed.
11. This court has formulated rules for the orderly transaction of its business. Rule 24, 50 Or. 582 (91 Pac. xi) provides that: “Upon the disposition of a petition for rehearing or if within twenty days after final judgment or decree no petition shall have been filed, the clerk
Twenty days must elapse in every.case between the rendering of the judgment and the issuing of the mandate, which is ample time to cover any emergency in filing cost bills, so that, in either event, the motion to recall the mandate must be denied, and it is so ordered.
Reversed : Rehearing Denied : Motion to Recall Mandate Denied.