Pierce v. Hall

• Jurisdiction: Oregon
• Parties: Benjamin PIERCE, Respondent, v. Edward E. O. HALL, Administrator of the Estate of Roberta Pierce; Edward E. O. Hall and Dorothy Hall, husband and wife; John T. Hall and Adell Hall, husband and wife, Appellants.
• Citation: 355 P.2d 259,223 Or. 563
• Court: Oregon Supreme Court
• Decision Date: 07 September 1960

Page 259

355 P.2d 259

223 Or. 563

Benjamin PIERCE, Respondent, v.Edward E. O. HALL, Administrator of the Estate of Roberta Pierce; Edward E. O. Hall and Dorothy Hallhusband and wife; John T. Hall and Adell Hall, husband and wife, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 16, 1960.

Sept. 7, 1960.

Burton J. Fallgren, Portland, argued the cause for appellants.With him on the briefs were McCarty, Swindells, Miller & McLaughlin, Portland.

Paul J. O'Hollaren, Portland, argued the cause and submitted a brief for respondent.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and MILLARD, JJ.

O'CONNELL, Justice.

Plaintiff brings this suit to quiet the title to certain real property located in Multnomah county.Defendants appeal from a decree for the plaintiff.

On September 2, 1947, plaintiff and Roberta L. Pierce, entered into a contract to purchase the subject property.The contract describes the purchasers as 'Benjamin Pierce and Roberta L. Pierce--husband and wife.'This recital, if accepted as true, would be sufficient to create in the purchasers a tenancy by the entirety in an equitable estate in the land described.Indiana Trust Co. v. Sherer, 1932, 96 Ind.App. 62, 180 N.E. 603;Zeigen v. Roiser, 1918, 200 Mich. 328, 166 N.E. 886;Hernandez v. Prieto, 1942, 349 Mo. 658, 162 S.W.2d 829;Sasso v. Meacham Realty Corporation, 1934, 242 App.Div. 853, 275 N.Y.S. 230;In re Beecher, 1934, 151 Misc. 395, 271 N.Y.S. 446.Cf.Ganoe v. Ohmart, 1927, 121 Or. 116, 254 P. 203.

On June 11, 1956, before the purchase price was fully paid, Roberta L. Pierce died intestate, leaving as heirs her two sons by a former marriage, Edward E. O. Hall and John T. Hall who, together with their respective wives, are the defendants in this suit.The complaint contains the usual allegation in suits to quiet title that the defendants claim some interest in the property in question and that such claims are without right.

Defendants' answer denies the plaintiff's assertion of title and also denies that Benjamin Pierce and Roberta Pierce were, at any time, husband and wife.By separate answer and cross-complaint defendants allege that Benjamin Pierce and Roberta Pierce were never legally married; that they were not husband and wife at the time the contract of sale was entered into, and that upon Roberta Pierce's death an undivided one half interest in the property in dispute descended to Edward E. O. Hall and John T. Hall, her heirs at law.

Plaintiff demurred to the separate answer and cross-complaint on the ground that it did not constitute a cause of defense.The demurrer was sustained.Thereupon defendants pleaded over, alleging that the plaintiff and Roberta Pierce had invested approximately $3,000 of the money of defendantEdward E. O. Hall, in the subject property, giving rise to a constructive or resulting trust.Plaintiff replied and the case proceeded to trial, culminating in a decree quieting the title in the plaintiff.

On appeal defendants contend that the court erred in sustaining plaintiff's demurrer to defendants cross-complaint.It is contended that the allegation in the cross-complaint that plaintiff and Roberta Pierce were not husband and wife at the time the contract was executed, if proved, would constitute a defense inasmuch as the purchasers would take as tenants in common and not as tenants by the entirety.Plaintiff's theory, which was accepted by the trial court, is that the defendants are precluded from attacking the title on the ground alleged, because the recital in the contract that plaintiff and Roberta Pierce are husband and wife must be accepted as true under ORS 41.350 as interpreted by Twigger v. Twigger, 1924, 110 Or. 520, 223 P. 934.The pertinent part of ORS 41.350 provides as follows:

'41.350 Conclusive presumptions.The following presumptions, and no others, are conclusive:

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'(3) The truth of the facts recited from the recital in a written instrument, between the parties thereto, their representatives or successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration.'

In Twigger v. Twigger, supra, it was held that a recital in a deed that John Twigger and Martha Twigger, grantees, were husband and wife, was conclusive as against John Twigger's heir who alleged that, because the marriage ceremony into which the grantees had entered was invalid, they took as tenants in common only and not as tenants by the entirety.That case was overruled in Emmons v. Sanders, 1959, 217 Or. 234, 342 P.2d 125, after the appeal in the present case was filed.

In the Emmons casewe held that a recital that the co-grantees were husband and wife was not conclusive upon the heir of one of the co-grantees, notwithstanding ORS 41.350(3).It follows that the defendants' separate answer and cross-complaint, in alleging that the plaintiff and Roberta Pierce were not husband and wife at the time the contract was executed, stated a good cause of defense to plaintiff's claim of title.Because the order sustaining the demurrer had the effect of removing from the case the issue of the validity of the marriage of plaintiff and Roberta, the cause must be remanded to permit that issue to be tried out, together with any other issues which may be available to the parties.We take note of the fact that defendants did introduce evidence under the rule purporting to show that plaintiff and Roberta Pierce were not lawfully married.However, this evidence was not relevant to the issues formed by the pleadings and plaintiff had no obligation to meet it.Upon a retrial of the cause it is possible that plaintiff can show that Roberta Pierce and plaintiff were lawfully married at the time they signed the land sale contract.Even though it is established that they were not husband and wife at that time, plaintiff may still be entitled to a decree quieting title in him if it is shown that he joined in the execution...