Acton v. Lamberson

• Decision Date: 13 December 1921
• Citation: 102 Or. 472,202 P. 421
• Parties: ACTON v. LAMBERSON et ux.
• Court: Oregon Supreme Court

202 P. 421

102 Or. 472

ACTON v. LAMBERSON et ux.

Supreme Court of Oregon

December 13, 1921

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by Delia Acton against J.G. Lamberson and wife. From decree for plaintiff, defendants appeal. Reversed and rendered.

This cause was tried as a suit in equity, and a decree rendered in favor of plaintiff for an undivided one-third interest in 225 acres of land and for $450 damages. Defendants appeal.

The case was originally commenced as an action at law for the possession of the real estate. The defendants filed an answer denying the material allegations of the complaint and set up two defenses. One of the defenses was by authority of Section 390, Or.L., which, so far as material here, provides that--

"Bills of revivor and bills of review, of whatever nature exceptions for insufficiency, impertinence, or irrelevancy and cross-bills are abolished; but a decree in equity may be impeached and set aside, suspended, avoided, or carried into execution by an original suit; and in an action at law where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may set such matter up by answer without the necessity of filing a complaint on the equity side of the court; and the plaintiff may, by reply, set up equitable matter, not inconsistent with the complaint and constituting a defense to new matter in the answer. Said reply may be filed to an answer containing either legal or equitable defenses. The parties shall have the same rights in such case as if an original bill embodying the defense or seeking the relief prayed for in such answer or reply had been filed. Equitable relief respecting the subject matter of the suit may thus be obtained by answer, and equitable defenses to new matter contained in the answer may thus be asserted by reply. When such an equitable matter is interposed, the proceedings at law shall be stayed and the case shall thereafter proceed until the determination of the issues thus raised as a suit in equity by which the proceedings at law may be perpetually enjoined or allowed to proceed in accordance with the final decree; or such equitable relief as is proper may be given to either party."

The first defense alleges the following, in substance: Frank Cammann died intestate in the county of Malheur, Or., August 13, 1905. Prior to his death he was the owner in fee simple of the real property mentioned in plaintiff's complaint. He left surviving him, as his heirs at law, two daughters Monna Cammann, 5 years of age, and Maude Cammann, 2 years of age. On January 29, 1908, Alex Smith, the grandfather of these children, was appointed by the county court as the guardian of the persons and estate of said minors, and letters of guardianship were duly issued to him. On March 11 of that year, the guardian, being in possession of the land by virtue of an order of the county court sold the one-third interest of the wards in such real estate to Fred W. Cammann, and pursuant to the order of the county court executed and delivered to the purchaser a guardian's deed to the property, which was duly recorded. Fred W. Cammann immediately thereafter entered into possession of the premises. On March 30, 1908, Fred W. Cammann and his wife sold and conveyed the land to defendant J.G. Lamberson by a deed which was duly recorded. Immediately thereafter defendants entered into the possession of the premises, and since the guardian's sale Fred W. Cammann and defendants have held the land under color of title openly, notoriously, uninterruptedly, and adversely as against the plaintiff and all persons. Neither plaintiff nor her ancestors, predecessors, or grantors, nor any or either of them, were seized or possessed of the land or any part thereof within 10 years next prior to the commencement of the action. Alex Smith as such guardian held adverse possession of the land from about January 31, 1908, under claim and color of title.

Defendants further pleaded as an equitable defense substantially as follows: After the death of Frank Cammann, August 13, 1905, and on February 29, 1908, one J.D. Fairman was duly appointed as the administrator of the estate of Frank Cammann, deceased, and duly qualified as such. Plaintiff is the wife of Arley Acton. Arley Acton pretended to be a creditor of the estate of Frank Cammann, by virtue of an alleged promissory note executed by Frank Cammann, deceased, January 5, 1903. Arley Acton never filed any claim with J.D. Fairman, the administrator. On September 21, 1908, J.D. Fairman resigned as such administrator, and Arley Acton petitioned for the appointment and was appointed administrator of the estate of Frank Cammann, deceased, claiming to be a creditor of said estate, and qualified as such administrator. On July 29, 1909, Acton as administrator approved his claim against the estate wherein he claimed to be the owner and holder of the promissory note executed by Frank Cammann, deceased, for the sum of $394.

Defendants are informed and believe, and therefore allege, that the note was given without any consideration, and is therefore void; that, if executed, the same was done before Frank Cammann became 21 years of age, and was not given for any of the necessities of life; that Frank Cammann repudiated the obligation and declined to pay the same both before and after arriving at the age of 21 years; that Arley Acton endeavored to collect the note from the guardian of Frank Cammann prior to his becoming of the age of majority; that the guardian refused to pay the same for the reason the note was void; that Arley Acton, knowing the note was void, and contrary to his duties as administrator, allowed the claim against the estate in July, 1909; that, based upon such void and fraudulent claim and contrary to his duties as the administrator of the estate, Arley Acton petitioned for and obtained an order directing him as such administrator to sell the one-third interest of Frank Cammann in the 225 acres of land, and pretended to sell the same to Delia Acton, his wife; that the pretended sale was fraudulent and void and made for the purpose of defrauding the estate, and was in truth and in fact made by Arley Acton as administrator to himself for his own use and purposes, contrary to his trust and for the purpose of defrauding the estate; that thereafter Arley Acton, as administrator, executed and delivered to Delia Acton an administrator's deed purporting to convey the undivided one-third interest in the real property; and that the deed was recorded and now constitutes a cloud upon defendants' title to the land. Defendants pray that the deed be set aside, held for naught, and their title to the land be quieted, and that Arley Acton be made a party plaintiff, and for equitable relief.

Plaintiff by her reply denies that Alex Smith, the guardian of Monna Cammann and Maude Cammann, minors, was in possession of the real estate; challenges the sale of real estate made by the guardian; denies all fraud and irregularities or improper conduct on the part of Arley Acton in making claim upon the note or in selling the land; and in effect denies that the statute of limitations had run against the plaintiff's claim to the land.

The trial court made findings reciting the proceedings regarding the sale of the land by the guardian of the minor heirs of Frank Cammann, deceased, the former owner of the land; the execution of the guardian's deed of the real property to Fred W. Cammann; the conveyance of the land by Fred W. Cammann and wife to defendant J.G. Lamberson; that Lamberson and wife entered into possession of the premises about April 1, 1908, and since that time have held possession and farmed the land; that this suit was commenced by plaintiff on March 9, 1918; and that defendants have therefore acquired no title to the premises by virtue of adverse possession or the statute of limitations.

The court further found in detail the proceedings in regard to the administration of the estate of Frank Cammann, deceased, the sale of the one-third interest in the land by Arley Acton as administrator to satisfy the note for $394 and interest with a credit thereon of $90; the approval of the claim by Arley Acton as administrator, on July 22, 1909; the approval thereof by the county judge of Malheur county, Or., in 1909, but that through inadvertence and mistake the approval of such claim was not made a matter of record; that after the expiration of the term of office of the then county judge, based upon the affidavit of the former county judge, the succeeding county judge made and entered an order approving the claim as of date 1908; that the sale of the land was made by the administrator June 1, 1914, in accordance with the order of the county court and in conformity with the published notice thereof; that plaintiff purchased the property for the consideration of $1,000, $250 cash and by giving a mortgage on the real property to the administrator for $750; that the sale by the administrator was regularly approved and confirmed; that in June, 1914, Arley Acton, as such administrator, by direction of the county court, duly executed and delivered to plaintiff his administrator's deed to the real property; that the deed was duly recorded; and that the administrator duly filed his final account which was approved by the county court, and he was discharged as administrator of the estate. The court also found:

"That defendants are barred and estopped from questioning the proceedings so had, commenced, and concluded in the county court of the state of Oregon for Malheur county in the matter of the estate of Frank Cammann, deceased, for the reason that the petition for the sale of...