Carroll v. McLaren

• Decision Date: 28 November 1911
• Citation: 60 Or. 233,118 P. 1034
• Parties: CARROLL v. McLAREN.
• Court: Oregon Supreme Court

118 P. 1034

60 Or. 233

CARROLL v. McLAREN.

Supreme Court of Oregon

November 28, 1911

Appeal from Circuit Court, Union County; J.W. Knowles, Judge.

Suit by J.E. Carroll against J.R. McLaren.From a decree for defendant, plaintiff appeals.Reversed and rendered.

J.D. Slater, for appellant.

Turner Oliver(T.H. Crawford, on the brief), for respondent.

EAKIN C.J.

This is a suit to quiet the title to lots 6, 7, 8, 9, and 10 in block 21 of the town of North Powder.Defendant denies plaintiff's ownership and possession of the lots, and alleges that he is the owner and in the possession thereof.

The first contention of defendant is that at the trial it appeared that plaintiff was not in possession of the property at the time the suit was commenced, and that therefore the court is without jurisdiction, contending that such possession was jurisdictional under section 516, L. O.L.The subject of the suit is of equitable cognizance to quiet title, and in such a case the fact that plaintiff is not in possession of the property may be waived, and where the defendant answers to the merits and seeks affirmative equitable relief, as is done here, the court may proceed with the exercise of jurisdiction, and grant the equitable relief appropriate in the case.This is the holding in O'Hara v. Parker,27 Or. 156, 39 P. 1004, and in State v. Blize,37 Or. 404, 61 P. 735, and it is fully discussed in Maxwell v. Frazier,52 Or. 183 187, 96 P. 548, 18 L.R.A. (N.S.) 102.The defendant, having submitted himself to the court, and having invoked that jurisdiction for affirmative relief, has waived the right to question the jurisdiction of the court.

Plaintiff to establish his title to the premises, offered in evidence the judgment in ejectment, rendered by the circuit court of the state of Oregon, for Union county, on October 19, 1909 in the case of George A. Lee against J.E. Carroll(this defendant); the judgment being as follows: "Now, at this time this cause came on for further trial before the same jury as of yesterday, the parties thereto appearing by their respective attorneys, and the taking of testimony on part of the plaintiff in chief having been concluded, and the defendant having introduced his evidence, the plaintiff, by his attorneys in open court, moves the court to take from the jury all the testimony and evidence offered on part of defendant, and, the motion having been argued and submitted it is by the court ordered and directed that all of the testimony admitted on part of the defendant be, and the same is hereby, taken from the jury.Whereupon the defendant moves in open court for an order instructing the jury to return a verdict in favor of defendant, that he is the owner and entitled to the possession against the plaintiff of the property described in the complaint, for the reason that the plaintiff has failed to prove a case sufficient to go to the jury as follows, to wit: That the conveyance introduced in evidence by plaintiff from James Welch and wife to J.M. Buckley refers to a plat of the town of North Powder then on file in the office of the county clerk of Union county, Or., and that no such plat has been shown or proved, and the only plat introduced in evidence shows upon its face that it was made and acknowledged in September, 1885, and that plaintiff has shown no title to the property described in the complaint, and the plaintiff moves in open court for an order directing the jury to return a verdict in favor of the plaintiff that plaintiff is the owner and entitled to the immediate possession of the property described in the complaint, to wit, lots 6, 7, 8, 9, and 10, in block 21, of the town of North Powder, in Union county, Or., according to the plat of said town now of record in the office of the recorder of conveyances of Union county, Or., and, the two said motions having been argued and submitted together, it is ordered and directed that the jury return a verdict in favor of the defendant that defendant is the owner and entitled to the possession of the property described in the complaint, and plaintiff's motion is denied.Whereupon the jury returned into court the following verdict: 'We, the jury in the above-entitled action, find that defendant, J.E. Carroll, is the owner and entitled to the possession, as against the plaintiff, of the property described in the complaint, to wit, lots 6, 7, 8, 9, and 10 of block 21 of the town of North Powder, Union county, Or., according to the plat of said town now of record in the office of the recorder of conveyances of Union county, Or. B.W. Bates, Foreman.'Which verdict was read in open court, and ordered filed.Whereupon the defendant, in open court, moves for the entry of judgment upon the verdict, and it is therefore by the court ordered and adjudged that the defendant, J.E. Carroll, is the owner and entitled to the possession as against the plaintiff, Geo. A. Lee, of the property described in the complaint, to wit, lots 6, 7, 8, 9, and 10 of block 21 of the town of North Powder, Union county, Or., according to the plat of said town of record in the office of the recorder of conveyances of Union county, Or., and that said defendant, J.E. Carroll, have and recover of and from the plaintiff, Geo. A. Lee, defendant's costs and disbursements in this action to be taxed, and that execution issue therefor."Plaintiff also introduced in evidence a quitclaim deed, executed by George A. Lee and wife to this defendant, McLaren, of date December 31, 1909, and rested.

Defendant thereupon offered in evidence the transfer of the land by the United States to the state of Oregon, and the conveyance by the state of Oregon to James Welch, and plat of the town of North Powder, made by James Welch, dated September 16, 1885; a quitclaim deed by James Welch to this defendant, McLaren, dated December 15, 1909.Plaintiff thereupon offered in evidence a prior warranty deed to these lots, given by James Welch to Buckley, of date ...