Jacobs v. Jacobs
| Decision Date | 02 May 1919 |
| Citation | 180 P. 515,92 Or. 255 |
| Parties | JACOBS v. JACOBS. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Linn County; George G. Bingham, Judge.
Action by Mary Jacobs against John Jacobs. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
The plaintiff alleges that between November 24, 1914, and May 22 1916, she was the owner in fee simple of an undivided one-third interest in the Calvin P. and Elizabeth Jane Burkhart donation land claim in Linn county; that the defendant was the owner of an undivided two-thirds interest therein; and that between the dates mentioned the defendant excluded the plaintiff therefrom, and held and enjoyed the sole possession thereof, and leased and rented the same collected the rental, retained and converted the proceeds to his own use, and now refuses to account to the plaintiff therefor, or to pay to the plaintiff her share thereof, of which the reasonable value is $500, and for which demand has been made.
The defendant made a general and specific denial of every allegation in the complaint, and for a first further and separate answer alleged that until November 24, 1914, he was the sole owner of the land; that prior to that time he and the plaintiff were husband and wife; that on the date mentioned she brought suit for divorce, in which the court rendered a decree in her favor and gave her an undivided one-third interest in the said real estate; that at the time of the decree the plaintiff and the defendant were residing thereon and in possession of the land; and that after the divorce the plaintiff left the farm and has never returned. The defendant also avers that between the alleged dates he remained in possession of all the lands, without objection by the plaintiff, and paid taxes thereon. As a second further and separate answer and by way of estoppel the defendant alleges that on April 1, 1916, as plaintiff, he commenced a suit in the circuit court of Linn county against this plaintiff as defendant therein, for a partition of the lands described in the complaint, alleging that he was the owner of an undivided two-thirds interest; that the plaintiff here owned an undivided one-third interest therein, and that such lands could be divided, and asked the court to appoint referees for that purpose. The plaintiff here appeared in that suit, and admitted the allegations of the complaint. Thereafter the court appointed referees to make the partition, and on June 26, 1916, they filed their report which was confirmed by the court. One-third of the land was then set off by decree to the plaintiff, Mary Jacobs, to be held by her in severalty, and the remaining two-thirds to the defendant, John Jacobs, to be held by him in the same manner.
The defendant alleges that the circuit court had jurisdiction of the parties and of the lands, and was entitled to settle all questions of ownership, including that of rents and profits during the period that the lands were owned and held by the plaintiff and the defendant as tenants in common; that at the time of the partition suit and while it was pending Mary Jacobs had knowledge of the rental, and made no claim for the amount thereof; that she could and should have set up this matter in her answer to the complaint in the former suit that all of such questions should have been litigated, tried and determined in the partition suit, and that by reason of her failure and neglect the plaintiff is now estopped to make any claim or prosecute any action for the alleged rents and proceeds.
A demurrer to the defendant's second further and separate answer was sustained. The plaintiff replied, and after hearing the testimony the jury returned a verdict in favor of the plaintiff, upon which judgment was entered, and from which the defendant appeals, claiming that the court erred in sustaining the demurrer and in rendering a judgment on the verdict.
J. K. Weatherford, of Albany (Weatherford & Wyatt, of Albany, on the briefs), for appellant.
W. S. Risley, of Albany (W. R. Bilyeu, of Albany, on the briefs), for respondent.
JOHNS, J. (after stating the facts as above).
There is no merit in the defendant's contention....
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Buck v. Mueller
...the former action does not, however, preclude him from asserting it in the present action. Stillwell v. Hill, supra; cf. Jacobs v. Jacobs, 1919, 92 Or. 255, 180 P. 515. Contra: Sobey v. Beiler, 1869, 28 Iowa 323; But cf., Denton v. Young, 1922, 154 Ark. 538, 242 S.W. We reluctantly reach th......
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Norwood v. McDonald
...Bittner v. West Virginia-Pittsburgh Coal Co., 4 Cir., 15 F.2d 652; Hodge v. Shaw, 85 Iowa 137, 52 N.W. 8, 39 Am.St.Rep. 290; Jacobs v. Jacobs, 92 Or. 255, 180 P. 515; Curtiss v. Crooks, Trustee, Furthermore, the right or interest of the plaintiff, if any, in the property under the claim mad......