Meyer v. Eichler

• Decision Date: 01 April 1919
• Citation: Meyer v. Eichler, 92 Or. 1, 179 P. 659 (Or. 1919)
• Parties: MEYER v. EICHLER.
• Court: Oregon Supreme Court

179 P. 659

92 Or. 1

MEYER v. EICHLER.

Supreme Court of Oregon

April 1, 1919

Department 1.

Appeal from Circuit Court, Benton County; J. W. Hamilton, Judge.

Partition suit by Elizabeth Meyer against R. Eichler.The circuit court confirmed the majority report of the referees appointed to make partition, and defendant appeals.Affirmed.

This is a suit in partition in which it is agreed that the plaintiff owned one-third and the defendant two-thirds of a certain tract of land.The contention before us is about the division made by the referees.Among other averments, it was stated:

"That the defendantEd Davis claims to be a tenant and entitled to possession of a part of said premises; that said Ed Davis has no right, title, interest, claim, or lien in or to the said property, or any part thereof."

Davis made default.It was suggested in the briefs and at the argument without contradiction that he had only part of the land rented for pasture, and had abandoned it.

The court appointed three referees to make partition of the tract.One of them, however, became ill, and Davis was appointed in his stead.Having considered the premises, Davis and one of his colleagues joined in a report which, roughly speaking, gave the plaintiff all the land east of the railroad, and the defendant all west of the railroad.The third referee reported in favor of a different adjustment of the lines.The defendant attacked the majority report on the ground that it did not provide for a fair division of the premises, because he had no notice of the meeting of the referees, and for the reason that, as he was advised and believes, they were influenced by the personal presence correspondence, and persuasion of the plaintiff.He filed in support of his objections the affidavit of the minority referee, his own affidavit, and those of two other individuals, giving their opinion that the place was not equitably divided, assigning in the main as reasons therefor that the running water, except a small spring already appropriated by the railroad company, was all on the premises given to the plaintiff, and that the most of his land was hilly and intersected with canyons, while hers was level ground.Opposed to this is the affidavit of the plaintiff denying that she had ever undertaken to influence the referees in any way, charging that the minority referee was a partisan in favor of the defendant, and setting forth that all the improvements and cultivated land were on the part allotted to the defendant; that there were two springs on his tract, affording ample water supply for all purposes there and that her lands were covered with brush and second growth timber, while his had a considerable tract of virgin forest.The affidavit of a disinterested party engaged in real estate business, owning land adjoining the tract in question, and thoroughly familiar with the conditions there, described the land in considerable detail, and gave his opinion that the division was fair.The circuit court confirmed the majority report, and the defendant appeals.

C. T Haas, of Portland (Joseph Woerndle, of Portland, on the briefs), for appellant.

Arthur Clarke, of Corvallis (McFadden & Clarke, of Corvallis, on the briefs), for respondent.

BURNETT, J.(after stating the facts as above).

There are four assignments of error.Under the first, and in this court for the first time, the defendant challenges the regularity of Davis' appointment.There is no showing made but that he was competent in every respect.It had been averred that he had no interest in the land, and he confessed this allegation by his default.Hence it must be a fact that he was without interest in the matter.The remaining three assignments are to the effect...