O'Hara v. Parker

• Decision Date: 08 April 1895
• Citation: 39 P. 1004,27 Or. 156
• Parties: O'HARA v. PARKER.
• Court: Oregon Supreme Court

39 P. 1004

27 Or. 156

O'HARA v. PARKER.

Supreme Court of Oregon

April 8, 1895

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Action by P. O'Hara against H.B. Parker to remove a cloud from a title. From a judgment for defendant, plaintiff appeals. Reversed.

This is a suit for the removal of a cloud from plaintiff's title. His complaint sets forth that he is the owner in fee simple entitled to and in the actual possession of certain premises described as lot No. 6 of section 24, township 8 N., range 9 W. of the Willamette meridian, in Clatsop county, Or containing 10.75 acres; that the defendant claims to be the owner of the premises by virtue of a certain tax deed executed September 29, 1888, by G.W. Ross, then sheriff and tax collector of said county of Clatsop. A copy of this deed is set out in extenso, which is apparently regular on its face. The complaint further states that said deed is a cloud upon plaintiff's title, and prevents him from selling disposing of, or incumbering the premises, and that defendant claims to be the absolute owner thereof, with the right to possess, occupy, hold, and use the same for his exclusive use and benefit. Many facts are then alleged, by reason of which it is claimed the sheriff's or tax deed constituting the cloud is rendered void and of no effect to pass the title. The defendant denies all the material allegations of the complaint, except the execution and delivery of the tax deed; and for a further and separate defense alleges that he is now, and ever since the 29th day of September, 1888, has been, the owner in fee simple and in the actual and peaceable possession of the premises; that, believing he was such owner, he honestly and in good faith made valuable improvements thereon, which has added to their value to the extent of $750. For a second further and separate defense the defendant alleges that prior to the commencement of this suit, to wit, on May 28, 1890, the plaintiff instituted a suit against him in the circuit court for Clatsop county founded upon the same facts and subject-matter, and demanding the same relief, as in the suit at bar. A copy of the complaint in that suit is then set forth in haec verba. The portions thereof necessary for an understanding of its contents are as follows: "(1) That said plaintiff is the owner in fee and in possession of the following tract or parcel of land. *** (2) That said defendant, H.B. Parker, claims an estate or interest in said tract of land adverse to plaintiff, by reason of a certain pretended tax deed bearing record date September 29, 1888, and by him caused on the said 29th day of September, 1888, to be filed in the office of the county clerk of Clatsop county, Or., on page 594 of Book 12 of Deeds of said county. (3) Said plaintiff avers that said pretended tax deed was in truth and fact illegally and unlawfully issued by the officers of said Clatsop county to the defendant, for the reason that the county assessor of said Clatsop county, who assessed said tract of land in the year 1884 for taxation (upon which assessment said tax deed was issued), and also the county clerk and county sheriff of said Clatsop county, who authorized and issued and gave a tax deed to said defendant as alleged, were not qualified as directed by law, and failed to post and publish the proper notices as by statute provided for the taxation of real estate and the issuing and delivering of tax deeds, and failed to issue and deliver said tax deed as by law they were bound to do. (4) That said defendant paid to said sheriff of Clatsop county as aforesaid, on the 3d day of July, 1885, for said tax deed, the sum of four dollars. (5) That said tax deed still remains of record, and is a cloud upon plaintiff's title." The relief demanded was (1) that defendant be required to set forth the nature of his claim; (2) that it be declared and adjudged that defendant has no estate nor interest in said premises, and that plaintiff's title is good and valid; and (3) that defendant be forever enjoined from asserting any claim whatever to said premises adverse to plaintiff. It is further shown that a demurrer was interposed to this complaint, assigning as a reason therefor that it does not state facts sufficient to constitute a cause of suit. This demurrer was sustained by the court, and leave granted to file an amended complaint within 60 days. At the expiration of this period, the plaintiff refusing to plead further, a decree was given and entered dismissing his complaint and for costs. This decree is pleaded as a bar to the present suit. Plaintiff demurred to this defense, and, the demurrer being sustained, a trial was had upon the merits, which resulted in a decree for defendant, from which plaintiff appeals.

J.H. Smith and T. Smith, for appellant.

C.W. Fulton, for respondent.

WOLVERTON, J. (after stating the facts).

We will consider, first, whether the decree upon the demurrer is a bar to this suit. It is settled by this court that "a decree sustaining a demurrer to a complaint, and dismissing the suit, because it does not state facts sufficient to constitute a cause of suit, is, until reversed, a final determination of the issues presented by such complaint, and can be pleaded as a bar to a subsequent suit for the same cause." Hume v. Woodruff (Or.) 38 P. 192. Upon this proposition there seems to be no conflict of authority. See Black, Judgm. § 707; Messinger v. Insurance Co., 59 F. 416; Nickless v. Pearson (Ind.Sup.) 26 N.E 478; Alley v. Nott, 111 U.S. 472, 4 Sup.Ct. 495; Bissell v. Spring Valley Tp., 124 U.S. 231, 8 Sup.Ct. 495; Kimbro v. Railway Co., 56 Ga. 187; Wells, Res Adj. § 455. It is equally well settled, however, that when an essential allegation is wanting in a complaint to which a demurrer is sustained, followed by a decree of dismissal, which allegation is fully supplied in the second suit, the decree in the first is not a bar to the second; and this is so although the respective suits were instituted to enforce the same right, for the reason that the merits of the case as disclosed in the second complaint were not heard and decided in the former suit. Gould v. Railroad Co., 91 U.S. 534; Gilman v. Rives, 10 Pet. 298; Black, Judgm. § 707. The complaint in the case at bar was framed with the purpose in view of removing a cloud from title. It is held that in such a suit the complaint should state the nature of defendant's claim which constitutes the alleged cloud, and then state such facts and circumstances in respect to the claim as to show its invalidity. The suit is substantially one to determine the validity of some instrument or proceeding which it is claimed injuriously affects or clouds plaintiff's title. Teal v. Collins, 9 Or. 91. A suit to remove a cloud and one to quiet title are essentially different. In the latter it is sufficient to allege that the defendant claims an estate or interest in the property adverse to the plaintiff, and call upon him to assert the nature and character of such adverse estate or interest, and subject it to a judicial investigation, that the right of possession between them may be forever quieted. See Teal v. Collins, supra; Stark v. Starrs, 6 Wall. 410. It is a common-law equitable remedy, which was resorted to by the party in possession of real property, where successive actions in ejectment had been brought against him, all of which had failed. Ejectment at common law being founded in fiction, and based upon a fictitious demise between fictitious parties, a judgment thereon did not constitute a bar to another or many similar actions for the same premises. Hence, to prevent being harassed and annoyed by continued unsuccessful assaults against his title, the party in possession could resort to this equitable remedy to enjoin further actions in ejectment, and thereby determine the controversy, and forever set at rest and quiet his title. The remedy was also made available when many persons asserted equitable titles against a plaintiff in possession holding by legal or equitable title. Section 504, Hill's Ann.Laws Or., is an enlargement of this equitable remedy, and it is now the right of any person in possession of real property, by himself or his tenant, founded upon title, either legal or equitable, to have this remedy enforced against any person claiming an estate or interest adverse to him, without waiting for his possession to be disturbed by legal proceedings, or for successive or any judgments in ejectment to be given in his favor; whereas at common law it was necessary to await the action of the claimant, and to bide the time of defeating him in successive actions in ejectment, before the suit could be instituted. Section 504 is also regarded as governing, wherever applicable, in cases of suit to remove cloud from title.

It is difficult, from the complaint filed in the prior suit, to ascertain whether the pleader intended by it to institute a suit to remove a cloud or to quiet the title to the premises in question. The prayer would seem to indicate that his purpose was to quiet the title, while from the body of the complaint we take it that he intended to remove a cloud therefrom. It is alleged that "the defendant claims an estate or interest in said tract of land adverse to plaintiff, by reason of a certain pretended tax deed," describing it. Then it is alleged that said deed is void for the reason that the assessor who made the assessment, and the sheriff and clerk who were authorized to execute the deed "were not qualified as directed by law, and failed to post and publish the proper notices, as by statute provided, for the taxation of real estate and the issuing and delivering of tax deeds, and failed to issue and deliver said tax deed as by law they were then bound to do," and that...