Jensen v. Probert

• Decision Date: 25 April 1944
• Citation: 174 Or. 143,148 P.2d 248
• Parties: JENSEN ET UX. <I>v.</I> PROBERT ET AL.
• Court: Oregon Supreme Court

174 Or. 143

148 P.2d 248

JENSEN ET UX.

v. PROBERT ET AL.

Supreme Court of Oregon.

Argued March 28, 1944.

Reversed April 25, 1944.

Improvements

1. At common law, true owner might recover his land in ejectment without incurring liability for improvements by an occupier, even though latter acted in good faith believing himself to be owner, but equity would under some circumstances allow compensation to such occupier.

Ejectment

2. Generally, true owner of land, in an action at law, and in absence of statute, is entitled to recover land without liability to pay for improvements by occupier even though occupier acted in good faith believing himself to be the owner.

Improvements

3. Generally, where true owner of land seeks relief in equity and occupier has in good faith and in belief that he owned land made improvements which enhanced value of land, court will grant relief to owner only upon condition that appropriate restitution is made to occupier.

Ejectment

4. Where true owner of land in addition to seeking ejectment of occupier adds a count for mesne profits, value of improvements made in good faith may be set off against claim for mesne profits on theory that action for mesne profits is an application of equitable action of assumpsit.

Improvements

5. Under Oregon law, an occupier of land who, in good faith, believing land to be his, has placed improvements thereon enhancing value of land, may recover value of improvements from true owner regardless of whether owner resorted to equity.

Equity

6. Where true owner of land resorted to equity to cancel deed, executed by a stranger to title who had same name as true owner, and to remove cloud from true owner's title, under maxim that he who seeks equity must do equity, true owner was required to make suitable restitution to possessor on account of improvements made in good faith.

Equity

7. Where defendant in action to remove cloud from plaintiff's title also sought equitable relief, defendant waived any objection to jurisdiction, and chancellor had jurisdiction to render complete

equitable relief notwithstanding that equity may have been without jurisdiction to remove cloud because tract was in actual possession of defendant.

Injunction

8. Where occupier in good faith, believing himself to be owner, installed improvements on land, and owner also acted in good faith, owner stood before equity in as fair a light as occupier for purpose of determination of equities between them.

Improvements

9. Where both owner and occupier act in good faith and a lien is to be imposed on property to compensate occupier for improvements enhancing value of property, decree should give owner option to receive from occupier payment for lot at its just value without improvements and convey lot to occupier or hold lot with improvements and pay occupier actual value of improvements.

Evidence

10. Supreme Court took judicial notice that a small house without a basement is susceptible to removal without serious difficulty.

Injunction

11. Where occupier in good faith acquired possession of property in reliance upon policy of title insurance and warranty deed and erected thereon small house susceptible of removal without serious difficulty, and true owner also acted in good faith, equity would require occupier to remove building and rely on remedies on title policy and warranty deed rather than place a lien on property for value of improvements.

Injunction

12. Where circumstances so require, equity has power to permit or require the removal from true owner's land buildings erected by mistake and in good faith by an occupier.

Injunction

13. Equity is not bound by common-law rule which would give improvements erected by mistake in good faith by an occupier to true owner without any right of reimbursement, nor is it bound by any rule of thumb as to manner in which restitution should be made and will endeavor to equalize the equities.

                  Action to recover for improvements made on land, taxes or
                interest paid, or lien discharged, by one who mistakenly
                believed himself the owner, note 104 A.L.R. 577. See, also
                18 Am. Jur. 124, 27 Am. Jur. 279
                  28 C.J.S., Ejectment, § 156
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK and BRAND, Associate Justices.

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

Suit by George Jensen and Eline Jensen, his wife, of Port Alexander, Alaska, against George Jensen and Della E. Jensen, his wife, of Salem, Oregon, and others to cancel deeds executed by named defendants purporting to convey plaintiffs' property. From that portion of decree canceling deeds as imposed a lien upon a portion of the property in favor of defendant Samuel H. Probert and Minnie Probert, his wife, for permanent improvements placed thereon, plaintiffs appeal.

REVERSED.

George A. Rhoten, of Salem (Rhoten & Rhoten and Sam F. Speerstra, all of Salem, on the brief), for appellants.

Rollin K. Page, of Salem (Page & Page, of Salem, and Will H. Masters, of Portland, on the brief for Probert and Hemann; W.C. Winslow, of Salem, on the brief for Vick), for respondents.

BRAND, J.

This is a suit by the plaintiffs, George Jensen and Eline Jensen, husband and wife, to cancel deeds as clouds on the plaintiffs' title to land. The decree of the circuit court cancelled the deeds and decreed that the plaintiff George Jensen is the owner in fee of the premises, but it imposed a lien upon a portion of the same in the sum of $1,500 in favor of the defendant Probert in compensation for the value of the permanent improvements placed thereon by him. The plaintiffs appeal from that portion of the decree which impressed the lien on plaintiff Jensen's property.

The facts are unique. On February 17, 1926, one Egil Olsen, being then the owner of the property described in the complaint, conveyed it to the plaintiff George Jensen who thereafter, as owner, paid the taxes and assessments against the property.

On January 21, 1941, the defendant George Jensen who enjoyed the same name as the plaintiff George Jensen, being of an enterprising and fraudulent disposition, purported to convey the property by warranty deed to Hollis Vick for $200. The defendant George Jensen had no right, title or interest in the property. The circuit court so held and no appeal has been taken by the defendant George Jensen, or by any other party defendant. It is therefore unnecessary to review the evidence upon that issue except to say that we are in entire accord with the finding of the trial court.

On April 11, 1941, Hollis Vick purported to convey a portion of the property by warranty deed to the defendants Hemann. We shall, for convenience, designate that portion as the "Hemann tract." On April 29, 1941, Hollis Vick purported to convey the balance of the property to the defendant Samuel H. Probert by warranty deed. We shall designate that portion as the "Probert tract." It is properly conceded by the plaintiffs that the defendants Vick, Hemann and Probert acted in entire good faith. There was nothing in the record title to indicate that the George Jensen who deeded to Vick was not the George Jensen who owned the property. Hemann and Probert each took out title insurance policies, insuring to them a fee simple title. No improvements have been made upon the Hemann tract and the cloud upon the plaintiff's title by reason of the respective deeds was properly removed by decree of the trial court. The plaintiff George Jensen is the owner in fee of that tract. The defendant Probert in good faith constructed a small house upon the Probert tract. As to that tract also, the court cancelled the deeds as clouds on the title of plaintiff Jensen, but the decree provided further:

"* * * that there be and there is hereby impressed a lien on the premises hereinafter described as the Probert Lien tract in the sum of ONE THOUSAND FIVE HUNDRED AND NO/100 ($1,500.00) DOLLARS; said lien being in favor of defendant Samuel H. Probert and being in compensation for the value of the permanent improvements placed on said Probert Lien Tract by defendant Probert, and said sum is hereby fixed as the net value of such improvements after deducting from the whole value thereof the value of the use and occupancy of the said Probert Lien Tract for the period during which defendant Samuel H. Probert has been in possession thereof."

The plaintiffs Jensen had no knowledge of the fraudulent conduct of the defendant Jensen, nor of the existence of any of the deeds to Vick, Hemann or Probert. It does appear that in 1939 the plaintiffs were informed by a third party that another George Jensen had claimed to be the owner of the property. The defendant Jensen never took possession of the property and apparently was only upon it on two or three occasions. On the last occasion, in the fall of 1939, he told Mrs. Lentz, who lived on the adjoining property, that he owned the property, but admitted that he had no deed. Mrs. Lentz advised that he had the wrong property — "the wrong lot or wrong block number." Mrs. Lentz never saw him again until the day of the trial.

The plaintiffs resided in Port Alexander, Alaska, and only occasionally visited in Salem at the home of Mrs. Jensen's father, Egil Olsen. They had no knowledge that anyone had taken possession of the property, or that any improvements had been made thereon until September, 1941, when the plaintiff Eline Jensen returned from Alaska and discovered that Probert had constructed a small house on plaintiff's land. She promptly consulted an attorney and thereupon this suit was brought to remove the cloud from plaintiff's title.

BRAND, J.

The question for our decision is this: The plaintiff Jensen was and is the owner in fee of the Probert tract. The plaintiffs were neither guilty of negligence, fraud, or bad faith nor did they take any affirmative action tending to mislead Probert or his purported predecessors in title. Probert, acting in good faith and without negligence...