Pearson v. Richards

• Decision Date: 19 December 1922
• Citation: 211 P. 167,106 Or. 78
• Parties: PEARSON v. RICHARDS ET AL.
• Court: Oregon Supreme Court

211 P. 167

106 Or. 78

PEARSON v. RICHARDS ET AL.

Supreme Court of Oregon

December 19, 1922

Department 1.

Appeal from Circuit Court, Marion County; Geo. G. Bingham, Judge.

Action by S. R. Pearson against Margaret I. Richards and C. B Richards and others. From decree for plaintiff, the named defendants appeal. Reversed and remanded.

This is an appeal from a decree rendered upon the refusal of the appearing defendants to plead further after the court had overruled a demurrer to the complaint. The only information we have concerning the facts is furnished by the complaint and, of course, in the present condition of the record it must be assumed that the complaint contains a correct narrative of the facts.

This suit is prosecuted by S. R. Pearson as plaintiff against C B. Richards and his wife, Margaret I. Richards, and Lane Morley and his wife, Stella Morley, and the city of Salem. All of the defendants defaulted, except Margaret I. Richards and C. B. Richards, who filed a demurrer; and these two defendants are now contending that the demurrer should have been sustained.

The facts as related in the complaint are as follows:

On November 29, 1919, Margaret I. Richards and C. B. Richards conveyed to Eunice Fleenor by a warranty deed all of lot 6 except the west 80 feet, and that part of lot 5 beginning at a point 80 feet east of the southwest corner of said lot thence north 38 feet; thence east to the alley; thence south 38 feet; thence west to the point of beginning--all in a certain block in the city of Salem. The deed contained the following warranty:

"That said premises are free from all incumbrances, and that they (grantors) will warrant and defend the same from all legal claims whatsoever."

The conveyance also contained the following:

"It is hereby understood that there is a certain reassessment for street improvement now in litigation against said property which grantors hereby agree and promise to pay should the court adjudge the same as a lien against said property."

Eunice Fleenor executed and delivered to Margaret I. Richards a mortgage covering the realty purchased from Margaret I Richards and C. B. Richards. This mortgage was for $500, and provided that the amount should be paid in installments of $20 per month.

Thereafter Eunice Fleenor conveyed the premises to S. R. Pearson subject to the mortgage held by Margaret I. Richards. The "defendants Richards and defendants Morley are the owners of all that portion of lots 5 and 6 * * * except that portion thereof owned by plaintiff."

The defendant Margaret I. Richards is still the owner and holder of the mortgage, and there "is now due and owing thereon the sum of $250."

Prior to the conveyance to Eunice Fleenor, the city of Salem attempted to levy an assessment on certain lots, including lots 5 and 6, for a street improvement; but the assessment was adjudged invalid. See Watson v. City of Salem, 84 Or. 666, 164 P. 567, 1184, and Albert v. City of Salem, 84 Or. 677, 164 P. 569. The city made a reassessment on March 2, 1918, or more than a year prior to the conveyance to Eunice Fleenor. The reassessment involved a charge of $209.42 against lot 6 and a levy upon lot 5 for $191.95; and, consequently, if the reassessment is valid, these two amounts with interest at the rate of 6 per cent. per annum since March 2, 1918, are due and unpaid, and each lot is burdened with the incumbrance of the reassessment. This is the reassessment which is referred to in the deed delivered to Eunice Fleenor, although the deed refers to the reassessment as "a certain reassessment for street improvement now in litigation against said property." The truth is that the reassessment "was not in litigation, nor has the validity of said lien since been in litigation, nor is there any effort being made by defendant to start or institute any litigation to determine the legality or validity of said assessment."

The "defendants Richards have failed, neglected, and refused to remove said incumbrance from the title to said real property, or to pay the said lien, and threaten to foreclose the mortgage held by Margaret I. Richards against the property held by plaintiff." The plaintiff "is ready, able, and willing to pay the balance due upon said mortgage at any time said defendants Richards will clear the title to said real property from the lien and claim of defendant city of Salem."

The plaintiff says:

"That it is impossible to ascertain the exact amount of said street assessments and liens held by the defendant city of Salem against that portion of the real property owned by this plaintiff, for the reason that the said defendant city of Salem refuses to segregate said assessments and liens."

The plaintiff prayed for a decree enjoining Margaret I. Richards from foreclosing her mortgage, segregating the street assessment, and apportioning to the parts of lots 5 and 6 owned by the plaintiff whatever portion of the reassessment might be found to be the equitable share, and setting off such equitable share against the amount due on the mortgage and requiring plaintiff to pay the "defendants Richards," or the latter to pay the former, as the case might be, whatever the difference may be between the amount due on the mortgage and the amount of the reassessment apportioned to the realty owned by the plaintiff.

The decree of the trial court was substantially in accordance with the prayer of the complaint. The court segregated the reassessment, including principal and interest, by apportioning the lump sum of $220.34 to the parts of the two lots considered as an entirety owned by plaintiff, and the lump sum of $350.49 to the remainder of the two lots, considered as one tract, which remainder is owned by "defendants Richards and defendants Morley." The plaintiff was directed to pay into court within 60 days the difference between the amount due on the mortgage and the amount of the reassessment apportioned to the parts of the two lots owned by the plaintiff, and the decree further provided that, if the plaintiff failed so to pay such difference, Margaret I. Richards, the holder of the mortgage, could proceed to foreclose the mortgage; but, if such difference was so paid, then the mortgage should be canceled.

Claire M. Inman, of Salem, for appellants.

W. C. Winslow, of Salem, for respondent.

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

The appellants contend that, even though it be decided that the plaintiff is entitled to equitable relief, the decree must necessarily be reversed because the complaint fails to allege facts showing that the reassessment constituted a valid lien; and in our opinion this contention of the appellants must be sustained. The complaint merely alleges:

"That at all times herein mentioned there was and now is a lien against lot 6 * * * for the improvement of Twelfth street * * * in favor of defendant city of Salem, and in the sum of $209.42, * * * upon which there has been nothing paid, and that at all times herein mentioned there was a lien against lot 5 * * * in the sum of $191.95 * * * in favor of defendant city of Salem, and upon which no payments have been made;" and "that said lien is in fact a valid and subsisting lien against said property, as above described."

The very foundation of plaintiff's cause of suit is the claim that the reassessment is a valid lien. The plaintiff is asking a court of equity to relieve his property from the burden of the reassessment. If there is no lien, there is no need for relief. There can be no lien unless the reassessment was a valid one. The plaintiff is the moving party, and consequently he must allege and prove facts showing the existence of a lien. It must be remembered that the plaintiff is endeavoring to establish the fact that the appellants are liable for the payment of the reassessment. The plaintiff is seeking to charge a proportional amount of the reassessment against the appellants. The bald assertion that the reassessment "is in fact a valid and subsisting lien against said property" is not sufficient in the face of a demurrer. If the appellants had answered without demurring to the complaint and had subsequently permitted the introduction of evidence without objection, we might be justified in sustaining the complaint after decree on the authority of Winters v. Privett, 86 Or. 501, 168 P. 942; but in the instant case the appellants not only demurred but stood upon their demurrer and refused to answer; and in this situation the decision rendered in Equitable Savings & Loan Ass'n v. Hewitt, 55 Or. 329, 106 P. 447, is conclusive, and by force of that precedent the plaintiff is required to allege facts from which the court can draw the conclusion that the reassessment is a valid lien. See, also, Dillon v. Beacon, 67 Or. 118, 121, 134 P. 778, 135 P. 336, where it is assumed in the course of the discussion that it is necessary to plead facts constituting a valid assessment and lien in an action for damages resulting from the breach of a covenant in a deed. A mere conclusion of law is not issuable, requires no denial, and does not aid a pleading. Almada v. Vandecar, 94 Or. 515, 519, 185 P. 907.

The deed given by Margaret I. Richards and C. B. Richards contains a covenant of warranty, a general covenant against incumbrances, and a special covenant concerning the reassessment. A covenant of warranty and a covenant against incumbrances are regarded as independent covenants. 7 R. C L. 1141, 1152. Plaintiff's cause of suit, if he has one, involves a consideration of the general covenant against incumbrances and the special covenant concerning the reassessment; and the appellants claim that these two covenants, whether taken singly or together, are personal and not real covenants, and that therefore the...