Crow v. Abraham

• Decision Date: 25 September 1917
• Parties: CROW v. ABRAHAM ET AL. [*]
• Court: Oregon Supreme Court

167 P. 590

86 Or. 99

CROW v. ABRAHAM ET AL. ^[*]

Supreme Court of Oregon

September 25, 1917

Department 2.

Appeal from Circuit Court, Douglas County; G. F. Skipworth, Judge.

Action by Olive F. Crow, as administratrix of the estate of E. J Crow, deceased, against Albert Abraham, individually and as executor of the last will and testament of Henry G. Crow deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

This is an action by Olive F. Crow, as administratrix of the estate of E. J. Crow, deceased, against Albert Abraham individually and as executor of the last will and testament of Henry G Crow, deceased, to recover money. The complaint charges that Henry G. Crow died testate in November, 1911, and, his last will having been admitted to probate, the defendant was duly appointed, and is now the legally qualified executor of such testament; that at the time of his death the testator was in possession, and during his lifetime was entitled to the occupancy, of a tract of real property, particularly describing it, in Douglas county, Or., which land he held as the tenant of E. J. Crow, who was the owner thereof; that the latter died intestate in May, 1913, whereupon the plaintiff was duly appointed, and having legally qualified she is now the administratrix of his estate; that when Henry G. Crow died E. J. Crow became entitled to the possession of such real property, and upon the death of the latter the plaintiff succeeded to his rights in the premises; that the defendant individually and as executor of such last will has been in possession of the land wrongfully, and received and converted to his own use the rents, issues, and profits thereof, which are of the reasonable value of $2,500, and upon proper demand therefor he refused to pay any part thereof. The answer admits the death of Henry G. Crow, and that the defendant is now the executor of his last will, but denies all other averments of the complaint. For a further defense it is alleged that for more than 20 years prior to 1908 Henry G Crow had been in the open, notorious, exclusive, and adverse possession of the premises under a claim of right, when by a good and sufficient deed he conveyed to the defendant, as trustee, an undivided one-third thereof, and it was agreed that such grantor should retain the rents, issues, and profits of the land until October, 1910, after which the defendant was to receive yearly the profits of the premises; that such adverse possession was continued by the defendant until October 1, 1914, when the plaintiff attempted to rent the land to his tenants, and she is now pretending to be in possession of the premises pursuant to the occupancy by such tenants, who are holding over against his will and consent. For a second defense it is alleged that in a case wherein S. Marks & Co. were plaintiffs and H. G. Crow and E. J. Crow were defendants, instituted in the circuit court of the state of Oregon for such county and appealed to the Supreme Court, it was finally determined that H. G. Crow was not in possession of the land as the tenant of E. J. Crow, as alleged in the complaint herein, which conclusion is res adjudicata and binding upon the parties hereto as the successors in interest of H. G. Crow and E. J. Crow. Marks & Co. v. Crow, 14 Or. 383, 13 P. 55. The reply denied the allegations of new matter in the answer, and alleged that all the facts set forth in the first separate defense herein were tried and determined in a cause instituted in such circuit court, wherein H. G. Crow, the predecessor in interest of the defendant herein, was plaintiff, and E. J. Crow, the predecessor in interest of the plaintiff herein, was defendant, which cause was finally determined in the Supreme Court. Crow v. Crow, 70 Or. 534, 139 P. 854. Copies of the pleadings and mandate in that suit are set forth in the reply herein, from which it appears that pending the trial H. G. Crow died testate, whereupon the defendant herein, as the executor of his last will, was substituted as plaintiff, and the plaintiff herein, as the administratrix of the estate of E. J. Crow, deceased, was put in his place as defendant. The reply further alleges that both the plaintiff and the defendant herein are bound by the final decree rendered in that suit. This action was tried without the intervention of a jury, whereupon the defendant, to support the averment of adverse possession, undertook to testify as to how long he and his grantor had occupied the land under such claim of right, but, the testimony being rejected, he stated what facts he would prove as tending to establish the allegations of the answer, but the offer was rejected and exceptions taken. From the evidence received findings of fact and of law were made, and based thereon judgment was rendered against the defendant individually for $283.33, and as executor in the further sum of $566.67, and he appeals.

Albert Abraham, of Roseburg, for appellants. O. P. Coshow, of Roseburg, for respondent.

MOORE J. (after stating the facts as above).

It is contended that the decree of this court in Crow v. Crow, supra, was put upon the ground of the great delay of Henry G. Crow in asserting his right to the real property, which procrastination constituted laches and prevented the granting of the relief prayed for, whereupon the suit was dismissed; that such final determination was not a decision upon the merits, and hence errors were committed in rejecting the testimony offered to establish the adverse possession. To entitle a party successfully to invoke the plea of res adjudicata, the decision of a prior suit or action between the same parties must have been rendered upon the merits of the controversy. Van Fleet's Former Ad. § 30; Hughes v. Walker, 14 Or. 481, 13 P. 450; Glenn v. Savage, 14 Or. 567, 13 P. 442; O'Hara v. Parker, 27 Or. 156, 39 P. 1004; Pruitt v. Muldrick, 39 Or. 353, 65 P. 20; Burnett v. Marrs, 62 Or. 598, 125 P. 838.

"The judgment is upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based on the ultimate facts or state of facts disclosed by the pleadings, and evidence upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions." 5 Words and Phrases, 4494.

An examination of the opinion announced in Crow v. Crow, supra, will show that all the testimony given at the trial was carefully considered on appeal in order to determine that Henry G. Crow was guilty of laches whereby his claim to equitable relief was rendered stale. That decision was within the issues, and predicated upon a review of the testimony, thereby rendering the final conclusion reached a decree upon the merits.

It is insisted that the question of Henry G. Crow's adverse possession of the real property was not involved in the former suit, and for that reason errors were committed in excluding testimony tending to substantiate such defense in this action. The complaint in that suit alleges that without an adequate consideration therefor Henry G. Crow executed a trust deed to E. J. Crow, who also obtained a sheriff's deed for all the real property here involved by consent of his brother, Henry G. Crow, who confessed a decree of foreclosure of a mortgage executed by the latter to prevent his then wife from securing alimony in a suit for divorce, which she threatened to institute. The complaint also sets forth sales and conveyances of parts of such land made by E. J. Crow, whereby he was repaid more money than it is alleged he expended on behalf of Henry G. Crow. Referring to such brother, the complaint contains a clause which reads:

"That the said plaintiff has always been in the exclusive possession of all the said premises described in said sheriff's deed and described in said trust deed, except the said property herein set out as having been sold under said trust and agreement since said sales, and now is in exclusive possession and has always received all the income and benefits of said land and premises, and is the equitable owner thereof."

The prayer of the bill is for an accounting and the execution by the defendant E. J. Crow and his wife of a deed conveying to Henry G. Crow all the remaining land. The material averments of the complaint were controverted by the answer. It will thus be seen that Henry G. Crow's alleged adverse possession of the premises was not put in issue in the former suit. That question not having been involved in that cause, does the final decree rendered by this court...