Lattie-Morrison v. Holladay

• Decision Date: 01 April 1895
• Citation: 39 P. 1100,27 Or. 175
• Parties: LATTIE-MORRISON v. HOLLADAY et al.
• Court: Oregon Supreme Court

39 P. 1100

27 Or. 175

LATTIE-MORRISON v. HOLLADAY et al.

Supreme Court of Oregon

April 1, 1895

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

Action by Mary E. Lattie-Morrison against Joseph Holladay and others to recover possession of the undivided one-third interest of certain lands. From a judgment for plaintiff and the refusal of a new trial, defendant Holladay appeals. Reversed.

This is an action brought against Joseph Holladay, C.B. Bellinger and W.A. Malin to recover possession of an undivided one-third of the donation land claim of Elizabeth Lattie in Clatsop county, Or. The defendants Bellinger and Malin, by their answers, denied being in possession of the property and disclaimed any interest in or claim thereto, and the action was subsequently dismissed as to them. The defendant Holladay denied all the allegations of the complaint, except his possession, and set up as a defense the statute of limitations, and upon this issue alone the cause was tried. The facts are that on May 15, 1868, Elizabeth Lattie died seised and possessed of the land in question, leaving as her heirs the plaintiff and three other children, to wit, Ellen Cloutrie, John Lattie, and William Lattie, and a will in which she purported to devise the whole of her property to her daughter Ellen. Subsequently, John Lattie died intestate, leaving, as his heirs, his surviving brother and two sisters; and, by reason thereof and the invalidity of the will as to plaintiff, she now claims to be, and is, unless barred by the statute of limitations, the owner and entitled to the possession of an undivided interest in the premises in controversy. After the death of Mrs. Lattie, her will was regularly admitted to probate, the estate duly administered upon, and on the 2d of September, 1872, the administrator was discharged, and the property turned over to the possession of Ellen, the devisee named in the will, who remained in possession thereof until she sold to the defendant and his grantors, as hereinafter stated. On December 13, 1872, Mrs Cloutrie and her husband sold and conveyed 25 acres of the claim, and on July 26, 1873, an additional 19 acres (which, together with the 25-acre tract, has since been known as the "Seaside Hotel Property"), to the Oregon Real-Estate Company, a corporation of which Benjamin Holladay was president. Immediately after the purchase, the real-estate company, through Benjamin Holladay, took possession and proceeded to improve the property by constructing thereon an hotel building and other valuable improvements to be used as a seaside summer resort, and remained in possession until December 29, 1875, when it was conveyed to the defendant Joseph Holladay, to whom the possession was delivered. On January 27, 1874, Mrs. Cloutrie mortgaged the remainder of the claim to Benjamin Holladay, to secure the payment of the sum of $4,000 and interest. This mortgage was subsequently assigned to the defendant, who foreclosed it, and advertised the property for sale, under the decree; whereupon Mrs. Cloutrie, in satisfaction thereof, conveyed to him, by deed dated June 25, 1877, and recorded on July 6, 1877, the whole of the donation claim of her mother, and a short time thereafter vacated the premises. The defendant gave evidence tending to show that he immediately took possession thereof, and continued in the open, exclusive, and adverse possession of the property conveyed by the deed of June 25, 1877, and the Seaside Hotel property, until November, 1883, when he surrendered possession to the receivers appointed in a suit brought against him by Benjamin Holladay; that the receivers remained in the exclusive and adverse possession of the property until the 18th day of July, 1889, when, by order of the court, it was again turned over to him, and he went into possession, claiming the same as owner, under and by virtue of a deed from George W. Weidler, trustee and receiver, made and delivered to him at that time. The trial resulted in a verdict and judgment in favor of the plaintiff for an undivided one-fourth interest in the donation claim of her mother, excepting the Seaside Hotel property, a 65-acre tract, and a 2-acre tract sold by Mrs. Lattie, to which neither party laid claim in this action. From such judgment the defendant appeals, assigning error in the admission of evidence and the giving and refusal of instructions.

C.H. Carey and F.J. Taylor, for appellant.

C.W. Fulton, for respondent.

BEAN C.J. (after stating the facts).

On the trial, plaintiff gave evidence tending to show that, during the time Mrs. Cloutrie and Benjamin Holladay were in possession of the property in controversy, they both recognized and admitted her right as a tenant in common with them, and that neither claimed an exclusive ownership or possession as against her, and did nothing amounting to an ouster. The defendant, however, contended, notwithstanding this fact, if it was a fact, that he had been in the adverse possession, claiming as owner, under the deeds from Mrs. Cloutrie and the real-estate company, for more than the statutory time, and was therefore entitled to prevail in this action, independently of the acts or conduct of either Benjamin Holladay or Mrs. Cloutrie. To meet this contention, and to show that he was in possession up to 1889, as a mortgagee only, the plaintiff offered, and the court admitted, in evidence, a decree of the circuit court of Multnomah county of date July 12, 1886, in a suit between Benjamin Holladay and the defendant, in which it was found, adjudged, and decreed that the defendant held such property as the mortgagee of Benjamin Holladay only, and directing that redemption be made within 90 days, or, in default thereof, that the property be sold to satisfy the defendant's claim thereon. This decree was not only admitted in evidence, but the court instructed the jury that it conclusively established the fact that Benjamin Holladay was the real owner of the property in controversy, and the defendant but a mortgagee in possession, and therefore his rights were to be ascertained and determined the same as if Benjamin Holladay had remained in possession of the property, and had been holding in recognition of plaintiff's title. The possession of the defendant or the receivers appointed in the suit of Holladay v. Holladay should not be regarded as adverse to plaintiff until after the judicial sale in 1889.

The admission of the decree in evidence, and the effect given thereto by the court, constitute the first and an important assignment of error in this case. The objection to its admission is that, as to the parties to this action, it is res inter alios acta, and therefore not competent evidence. The fundamental rule on this subject undoubtedly is that the record of a judgment or decree in personam or quasi in rem can affect only parties and privies; that is, those who have the right to adduce testimony or cross-examine the witnesses introduced by the other side, or who have a right to defend the action or suit, or to appeal from the judgment or decree, or those who claim by mutual succession or relationship to the same rights of property or subject-matter. All other persons are strangers, and the judgment is not binding upon them. Starkie, Ev. (10th Ed.) 318; Black, Judgm. §§ 600, 794; 1 Herm.Estop. § 299; Freem.Judgm. § 154; Freeman v. Alderson, 119 U.S. 185, 7 Sup.Ct. 165. It is apparent that, under this rule, the decree in question was not admissible in evidence to establish Benjamin's Holladay's interest in the property, nor was it conclusive upon the parties to this action. The plaintiff was an entire stranger to the proceedings. She had no right to appear in the suit or control the proceedings or to appeal therefrom, nor is she claiming under or through either of the parties thereto. Whatever right she has in the property in controversy accrued and was fixed long prior to the commencement of the suit of Holladay v. Holladay, or the rendition of the decree therein, and is entirely independent of any interest of the Holladays. Nor is it sufficient that the defendant here is a party to both proceedings. Estoppels must be mutual, and, unless the decree is binding upon both parties, it is binding upon neither. "No person," says Mr. Freeman, "can bind another by any adjudication, who was not himself exposed to the perils of being bound in a like manner had the judgment resulted the other way." Freem.Judgm. § 154. And Mr. Justice Ruffin says in Redmond v. Coffin, 2 Dev.Eq. (N.C.) 443: "A decree in favor of one party cannot protect another, who was not a party, unless he be a privy. And, indeed, a stranger thus introduced cannot use the decree at all as such, because it cannot be used against him." And Gibson, C.J., says: "That the record of a judgment can affect only parties and privies, and that no one shall have advantage from it who would not have been prejudiced by it, are principles with which every lawyer is supposed to be familiar." Shulze's Appeal, 1 Pa.St. 251. See, also, 1 Herm.Estop. §§ 135, 136; Freem.Judgm. § 159; Black, Judgm. § 548; Carr v. Acraman, 11 Exch. 568; Henry v. Woods, 77 Mo. 277; Chamberlain v. Carlisle, 26 N.H. 540; Winston v. Starke, 12 Grat. 317.

Now if, by the decree in Holladay v. Holladay, it had been adjudged that the defendant in this action was the owner in fee of the premises, and that Benjamin Holladay had no interest therein, it could not for a moment be successfully contended that such adjudication would be binding upon the plaintiff, and prevent her from showing by competent evidence, if she could, that Benjamin Holladay was in fact the real owner of the premises, and that Joseph Holladay was but a mortgagee in possession. If, then, such an adjudication would not have been...