Hoover v. King

• Decision Date: 29 June 1903
• Citation: 43 Or. 281,72 P. 880
• Parties: HOOVER v. KING et al.
• Court: Oregon Supreme Court

72 P. 880

43 Or. 281

HOOVER v. KING et al.

Supreme Court of Oregon

June 29, 1903

Appeal from Circuit Court, Harney County; M.D. Clifford, Judge.

Action by Newton Hoover against W.J. King and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is an action to recover possession of the E. 1/2 of the S.W. 1/4 of section 8, township 25 S. of range 35 1/2 E., in Harney county, which plaintiff tried to recover possession of from the same defendants in an action begun in 1889, wherein he alleged in his complaint that he was the owner in fee simple and entitled to the possession of the property, and that the defendants and each of them wrongfully and unlawfully withheld possession from him. The defendants answered denying the plaintiff's title or right to the possession or that they wrongfully or unlawfully withheld possession from him, and for an affirmative defense pleaded title in the defendant Mrs. Alice L. Bartlett. A trial was had, and the jury returned the following verdict, omitting title "We, the trial jury in the above-entitled action, find for the defendants Alice L. Bartlett and George W. Bartlett and against the plaintiff, Newton Hoover." Upon motion of defendants for judgment on the verdict, it was "ordered and adjudged that said motion for judgment be, and the same is hereby, granted and allowed, and that plaintiff's complaint filed herein be, and the same is hereby, dismissed, and the defendants have and recover of and from the plaintiff their costs and disbursements herein, taxed at $16." Thereafter the plaintiff commenced the present action. The complaint is in the usual form. The answer denies the material allegations thereof, sets up title in the defendant Alice L. Bartlett, and pleads as a bar the judgment in the former action. The court held the plea in bar good, and instructed the jury that the former judgment was a sufficient defense to this action. Notwithstanding this instruction, however, the jury found that the plaintiff was the owner in fee simple of the premises in controversy, returned a verdict in his favor, and assessed his damages at $700. The verdict was set aside on motion of the defendants, and a new trial ordered, upon which the jury, by direction of the court, returned a verdict in favor of the defendants. From the judgment entered thereon plaintiff appeals.

Will R. King, for appellant.

Parrish & Rembold, for respondent.

BEAN J. (after stating the facts).

The only question presented by this appeal is whether the judgment in the former action is a bar to this. At common law, ejectment was a mere possessory action between fictitious parties. The judgment therein did not determine the estate or interest of the parties in the property, nor did it conclusively determine the right to possession. It therefore was not a bar to another or subsequent action to recover possession of the same property. 2 Black, Judgm. § 650. But in the majority of the states of the Union the common-law action has been pruned of its fiction and artificiality, and made a simple remedy for the recovery of the possession of real property and the trial of the title thereto. It has generally been prescribed, either expressly or by necessary inference, that the judgment in such an action shall be conclusive between the parties and privies. Such are the provisions of our statute. Any person having a legal estate in real property and the present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law. B. & C. Comp § 326. The plaintiff is required to set forth in his complaint the nature of his estate, whether in fee, for life, or for a term of years, and for whose life, or the duration of such term. Id. § 328. The defendant is not allowed to give evidence of any estate in himself or another, or any license or right to the possession of the property, "unless the same he pleaded in his answer," with "the certainty and particularity required in a complaint." Id. § 329. The jury are required to find, if their verdict is for the plaintiff, "that he is entitled to the possession of the property described in the complaint, or some part thereof, or some undivided share or interest in either, and the nature and duration of his estate in such property, part thereof, or undivided share or interest in either, as the case may be"; and, if for the defendant, "that the plaintiff is not entitled to the possession of the property described in the complaint, or to such part thereof as the defendant defends for, and the estate in such property or part thereof, or license or right to the possession of either, established on the trial by the defendant, if any, in effect as the same is required to be pleaded." Id. § 330. The judgment "shall be conclusive as to the estate in such property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the same is given, and against all persons, claiming from, through, or under such party, after the commencement of such action, except as in this section provided." Id. § 339. It is thus apparent that the statute contemplates that the title to land may be tried in an action to recover possession thereof, and that, so far as the same is tried and determined, the judgment therein is conclusive upon the party against whom it is given. Barrell v. Title Guarantee Company, 27 Or. 77, 39 P. 992; Moores v. Moores, 36 Or. 261, 59 P. 327. But it is only when it appears from the judgment that the title has in fact been tried and determined that it can have such an effect. At common law, the judgment in an action to recover real property was not conclusive upon the parties, nor is it conclusive under the statute, unless it is within the terms thereof. It is declared in express terms that the judgment is conclusive on the title only ...