Morrill v. Morrill

• Decision Date: 24 November 1890
• Parties: MORRILL v. MORRILL et al.
• Court: Oregon Supreme Court

25 P. 362

20 Or. 96

MORRILL v. MORRILL et al.

Supreme Court of Oregon

November 24, 1890

Appeal from circuit court, Multnomah county; LOYAL B. STEARNS Judge.

This is a suit brought under section 504, Hill's Code, by plaintiff and respondent, to quiet her title to lot No. 3 block 116, in the city of Portland. The complaint avers that the plaintiff is the owner in fee and in the actual possession of this lot; that she derives her title thereto by good and sufficient mesne conveyances from the United States and also by virtue of the statute of limitations. The separate answer of defendant Killen avers that defendant Eli Morrill is the owner of the north 19 feet of this lot, and that on the 18th day of March, 1889, said Morrill executed a mortgage to him on this 19 feet, to secure the payment of the sum of $1,000. The defendant Eli Morrill, after denying plaintiff's ownership in the north 19 feet of this lot alleges that he is the owner in fee thereof, and as a further defense, and by way of estoppel, avers that in 1883 he instituted a suit for partition of the property described in the complaint against plaintiff, Ida Morrill, in the circuit court of Multnomah county; that she was duly served with process, and appeared by her attorney and defended said suit that such proceedings were had in said suit that on June 7, 1883, a decree was duly entered by the court, adjudging and decreeing that this defendant, Eli Morrill, and plaintiff, Ida Morrill, were tenants in common and in possession of lot 3, block 116, in the city of Portland; that Eli Morrill was the owner of an undivided one-third of said lot, and said Ida Morrill was the owner of an undivided two-thirds thereof; that a partition of said lot could be made without prejudice to the rights of the parties; that said property was divided and partitioned in accordance with said decree by setting off in severalty to Eli Morrill the north 19 feet of said lot, and to Ida Morrill the south 31 feet thereof, and that said decree was duly entered in the journal of said court, and that said decree is in full force and effect. The reply, after denying the allegations of the answer, sets forth that on March 28, 1877, a divorce suit was brought in the circuit court of Multnomah county by Eli Morrill against his then wife, Ida, and a decree was made therein, among other things, decreeing Eli Morrill to be the owner of an undivided one-third of lot 3, block 116, and dissolving the bonds of matrimony between the parties. It then avers that Ida, soon after said decree, went into the adverse possession of said lot 3, and disseised and dispossessed the said Eli, and that ever since said date she has held it adversely. It also avers that defendant, for a valuable consideration, released his interest in said lot on August 19, 1879, and sets forth a copy of the alleged agreement as follows: "Agreement. In consequence of mutual agreement with Mrs. Ida Morrill, I declare under oath that I withdraw my individual right to the title in an undivided one-third interest in lot 3, block 116, in the city of Portland, allowed to me by law of the court. Portland, Oregon, August 9, 1879. [ Signed] ELI MORRILL." The reply then attempts to impeach the partition suit by averring that the evidence did not justify it, and no referees were appointed as required by law; that, notwithstanding the failure and inability of said Eli Morrill to prove facts necessary to maintain said suit, her attorney therein, by and with the connivance and procurement of said Eli Morrill, was wrongfully induced, persuaded, and deceived into entering into a stipulation in said suit as to such facts, and in consenting to said decree of partition, without the knowledge, acquiescence, or consent of the plaintiff, and against her instructions and directions. It then alleges said decree of partition to be a fraud upon the court and plaintiff, and that she never knew of said decree until the filing of defendant's answer in the present suit, and that she has never knowingly acquiesced therein. A demurrer was interposed in the court below to that part of plaintiff's reply alleging new matter, which was overruled. The issues so made were then referred to C.H. Carey, Esq., to take findings of the referee were in favor of the plaintiff. Motions to confirm and set aside this report were duly filed. The court overruled defendant's motion, and sustained the motion of plaintiff to confirm said report, and a decree was thereupon entered in favor of plaintiff, and decreeing that she was the owner in fee of said lot 3, block 116, and that neither of said defendants had any right, title, or interest in or to the north 19 feet of said lot. From this decree the appeal is taken.

(Syllabus by the Court.)

A collateral attack on a judgment or decree is any proceeding which is not instituted for the express purpose of anulling, correcting, or modifying such decree, or enjoining its execution.

The possession of land usually follows the legal title, where no adverse possession is shown; and the possession of one tenant in common, in the absence of an ouster. Will inure to the benefit of his co-tenant.

When a court has jurisdiction of the subject matter and the parties, its judgment cannot be impeached collaterally for errors of law or irregularity in practice.

When a party to a suit has an opportunity to present his defense, and neglects to do so, the decree against him is binding in a collateral proceeding.

A decree for partition is conclusive upon the parties and privies that they were tenants in common and in possession of the land at the date of its rendition.

A judgment of a court of this state having jurisdiction of of the parties and subject matter cannot be attacked collaterally for fraud aliunde the record by the parties or privies.

Where only one referee is appointed in a partition suit, such proceeding is only an irregularity, and cannot be inquired into collaterally.

J.W. Whalley, for appellants.

A.H. Tanner and R.R. Giltner, for respondent.

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

It is conceded by the parties that, if the decree in the partition suit of Morrill vs. Morrill is valid and binding on her, this case should be reversed. Briefly, the facts concerning the partition suit are these: In August, 1882, the defendant herein, Eli Morrill, commenced a suit for partition in the circuit court of Multnomah county, Or., against the plaintiff in this suit. The complaint was in the usual form, alleging that he and plaintiff were tenants in common and in possession of lot 3, in block 116, in the city of Portland setting out the interests of the respective parties, and praying a partition thereof. A summons being duly issued and served, the plaintiff appeared by her counsel and filed an answer, in which she denied the possession of the premises by herself and defendant, and alleged, as a defense, that she was then, and had been since the 1st day of March, 1878, in the actual and exclusive possession of all of the property, and that her possession was not joint with that of plaintiff or any other person. A reply being filed denying the new matter alleged in the answer, the cause was referred to a referee to report the facts and the law to the court. In January, 1883, the parties, by their respective attorneys, appeared before the referee for the purpose of taking testimony. The plaintiff offered in evidence a certified copy of the judgment roll in the divorce case of Morrill vs. Morrill, and the following stipulation of the parties was entered into: "It is hereby stipulated by the parties that up till the 4th of February, 1882, both plaintiff and defendant occupied the premises described in the complaint; that since that time the defendant has been in the actual, exclusive occupancy of all of said premises, and has lived there as a home, and that neither the defendant nor any person for him has actually occupied said premises, or any part thereof, since February 4, 1882, as a home or otherwise; that both before and since February 4, 1882, and up to the present time, both plaintiff and defendant have paid taxes and street improvements according to their respective interests. It is understood that this stipulation shall not be construed so as to affect the rights of either party as a tenant in common. It is further agreed that the referee may make personal inspection and investigation of the premises in question, and from the facts thus obtained report to the court (if this suit can be maintained) (1) whether the property can be divided; (2) if it can, then how division shall be made; (3) if it cannot be divided, then recommend a sale." On May 4, 1883, the referee filed his report, the findings of fact and conclusions of law being in favor of defendant, and he also reported that pursuant to the stipulation of the parties, he had made personal inspection of the premises, and found that they could be divided without injury to the rights of either. The report recommended that the north 19 feet of the lot be set off to defendant, and the south 31 feet to plaintiff, each portion being particularly described in the report. Motions were made to confirm and set aside this report by the respective parties to the suit. On June 7, 1883, the court being fully advised, and the counsel of the respective parties consenting thereto in open court, a decree was entered confirming said report, and it was adjudged and decreed that plaintiff and defendant were tenants and in possession of the property; that plaintiff was the owner of an undivided two-thirds thereof, and defendant of the remaining one-third; that the premises could be partitioned according to the respective interests of the parties without prejudice to the rights of either, and confirming...