Barrell v. Title Guarantee & Trust Co.

• Decision Date: 12 March 1895
• Citation: 39 P. 992,27 Or. 77
• Parties: BARRELL v. TITLE GUARANTEE & TRUST CO.
• Court: Oregon Supreme Court

39 P. 992

27 Or. 77

BARRELL v. TITLE GUARANTEE & TRUST CO.

Supreme Court of Oregon

March 12, 1895

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Colburn Barrell against the Title Guarantee & Trust Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E.B. Watson and F.L. Keenan, for appellant.

Geo. H Williams, for respondent.

WOLVERTON J.

This is an action to recover 2 3/8 acres of land situate in Multnomah county, Or. The complaint contains the usual allegations. The answer, after a specific denial of the material allegations of the complaint, sets forth four further and separate defenses thereto, in the first of which it is alleged that the title in fee and right of possession of the premises in dispute are in the defendant. The fourth shows the following state of facts, to wit: On the 29th day of November, 1882, one Charles E. Tilton commenced an action in the United States circuit court for the district of Oregon against the plaintiff herein and Aurelia J. Barrell to recover the possession of certain premises, including those in dispute. The defendants therein appeared and answered, denying the title of Tilton to said premises, and thereupon such proceedings were had that on the 9th day of July, 1883, it was duly considered and adjudged that Tilton was the owner in fee simple of said premises, and, as against the defendants therein, lawfully entitled to the possession thereof. The defendants thereafter appealed to the supreme court of the United States, and on July 16, 1883, gave a supersedeas bond for the prosecution of such appeal. At the October term of said court for 1886 the judgment of the lower court was affirmed, and on March 28, 1887, a mandate issued which was duly filed and entered of record in the circuit court. Four executions were thereafter issued upon dates respectively, September 9, 1890, June 2, 1891, March 16 1892, and June 30, 1893. The three first were returned not served, but the fourth was duly executed by the United States marshal by putting the defendant herein in possession of the property as Tilton's successor in interest, and the defendant has ever since remained in possession thereof. The third simply sets up the Tilton judgment as an estoppel. The reply denies the defendant's ownership in fee and right of possession, but admits the allegations of the fourth further and separate defense, except that the execution of June 30, 1893, was duly issued or served, and alleges that the issuance and service thereof were wrongful, without authority of law, and an abuse of the process of said circuit court. And, further replying to each of the second, third, and fourth separate defenses, avers that on the 3d day of July, 1893, and for more than 12 years next prior thereto, the plaintiff was in the open, actual, notorious, peaceable, and continuous possession, occupation, and enjoyment of all the premises described, claiming title thereto in fee simple, adverse to defendant and its grantors and the whole world, and by reason thereof had acquired, and then held and owned, a perfect title to said property in fee simple. Upon this state of the pleadings, the defendant interposed a motion for judgment, for the reason that the answer sets up a perfect estoppel against the plaintiff's claim of title and possession of the premises, and the reply in no way avoids such estoppel. The second further and separate defense is not material for the present consideration, but from it, in connection with the fourth, we are enabled to trace the history of the title in dispute. It appears that on and prior to December 4, 1879, the plaintiff and Aurelia J. Barrell were the owners in fee of the premises, but had executed to W.S. Ladd a mortgage thereon, and upon that date Ladd commenced foreclosure proceedings against the Barrells, which ripened into a decree March 22, 1880. A sale was had thereunder, and on August 25, 1880, Ladd obtained a sheriff's deed for the property. Tilton subsequently became the owner, and commenced the action to recover possession, with the result as shown by the third and fourth further and separate defenses. The plaintiff is thus without any paper title to the premises, and relies solely and exclusively upon a title by adverse possession for a period of more than 12 years, claiming that he has been holding adversely to the defendant, his grantors, and all the world, since the 25th day of August, 1880, the date of the sheriff's deed to Ladd, to the 3d day of July, 1893, when he was ousted by the marshal, under process from the United States circuit court, issued in the case of Tilton v. Colburn and Aurelia J. Barrell. It is settled by recent decisions of this court that adverse possession of real property for the period prescribed by the statute of limitations confers title, and vests it in the possessor. It extinguishes adverse titles, and entitles the possessor to all the remedies incident to the recovery and maintenance of possession under written titles. Parker v. Metzger, 12 Or. 407, 7 P. 518; Joy v. Stump, 14 Or. 361, 12 P. 929. For the purpose of testing the motion for judgment on the pleadings, so far as the fourth separate answer shows the facts, it is conceded that plaintiff's possession has been adverse and continuous since August 25, 1880, unless the action commenced in the United States circuit court and the proceedings had thereunder stopped it. Hence, title to the premises, and the right of possession, as it affects the respective parties, depends upon the effect of the commencement of that action, the judgment therein obtained, and enforcement of the same by putting defendant into possession.

We will first consider the effect of the judgment in Tilton v Colburn and Aurelia J. Barrell. Section 316, Hill's Ann.Laws Or., provides: "Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law." And section 318: "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 in such sum as may be therein claimed." The action thus provided for is termed by the statute "An action to recover the possession of real property," but, unlike the common-law action of ejectment, it is more than a possessory action. It is an action by which the title, estate, and duration thereof, to real property, may be determined, as well as the right of possession. There is very little resemblance between the action thus provided for by statute and the common-law action of ejectment, yet in common parlance both are referred to by the latter title. The character of the common-law ejectment is well known, and is founded upon a fiction. Originally, the lessor, or he who had the right of entry on the land, made a formal entry thereon with some friend, to whom he executed and delivered a lease for years, and left him in actual possession, where he remained until some friend, called the "casual ejector," or the actual tenant, either by agreement or accident, came and turned him out. The lessee thereupon brought his action against the party ousting him to recover his term, damages, and possession, for which the writ of possession was issued. If the party ousting him was the casual ejector, he was required, under a rule of court, to give notice to the tenant in possession that he had been sued and would make no defense. This served as a process to the tenant in possession, who appeared and defended by permission of the court, and thereby became the real defendant in the suit. The plaintiff by his declaration did not allege title. He simply alleged that his lessor, on a day named, demised to him the premises in question, to hold for a specified term then next ensuing; that, by virtue thereof, he entered upon said premises, and became possessed thereof for the term; that, being so possessed, the defendant, at a time specified, and before the expiration of the term, with force and arms entered and ejected him. Subsequently a change was made by the courts, after which the plaintiff and casual ejector were fictitious persons. The actual tenant, before he would be allowed to appear and defend, was required under the consent rule to confess the lease, entry, and ouster, and plead not guilty. The lease, entry, and ouster being confessed, it was unnecessary to enter proof to establish them, but it was necessary to show title in the lessor, notwithstanding none was directly alleged; and the title, though not directly in issue, thus became the real question, and the only question, litigated. 6 Am. & Eng.Enc.Law, 198; Caperton v. Schmidt, 85 Am.Dec. 195. A judgment thus obtained did not operate as an estoppel to a retrial of the same question of title. By making a fresh demise to another nominal character, it became the action of a new plaintiff upon another right. The reason for the nonconclusiveness of the judgment is found in the fictitious character of the action. Another reason therefor is assigned by Mr. Justice Miller in Miles v. Caldwell, 2 Wall. 41, namely, "the peculiar respect, almost sanctity, which the feudal system attached to the tenure by which real estate was held. So peculiarly sacred was the title to land with our ancestors that they were not willing that the claim to it should, like all other claims, be settled forever by one trial in an ordinary personal action, but permitted the unsuccessful party to have other opportunity of establishing his title." Thus, any number of actions...