South Portland Land Co. v. Munger
| Decision Date | 19 February 1900 |
| Citation | 60 P. 5,36 Or. 457 |
| Parties | SOUTH PORTLAND LAND CO. v. MUNGER et al. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.
Bill by the South Portland Land Company against Abbie K. Munger and others. From a decree for plaintiff, defendants Munger and others appeal. Affirmed.
On September 17, 1896, Abbie K. Munger commenced an action against the above-named plaintiff to recover possession of the undivided one-half of the west half of what is known as the "William and Mary T. Collins Donation Land Claim," situated in sections 27 and 34, township 1 S range 1 E. of the Willamette meridian, in Multnomah county Or. On October 17th, the South Portland Land Company filed an answer to the complaint, denying all the material allegations thereof, except the incorporation of plaintiff; and, by way of a further and separate defense, set up affirmatively that said company was the owner in fee simple and in possession of the premises and that it and its grantors had been in the actual, open, notorious, adverse, exclusive, and continuous possession thereof for more than 10 years prior to the commencement of the action. Further answering, it alleged that said company had "no plain, speedy, and adequate remedy at law; that its defense in part is based upon matters and its affirmative relief is wholly cognizable in a court of equity, to wit, the correction of a mistake in the description of the property in a deed which forms one of the links of the defendant's chain of title, which mistake was the mutual mistake of the parties to said deed, and upon other equities existing in favor of the defendant, and against the plaintiff, all of which are fully alleged in a complaint in equity in the nature of a cross bill filed herewith in this court, to which reference is hereby made." Thereupon the company filed a complaint in equity, in the nature of a cross bill, against the plaintiff in the action, joining with her Albert Munger, her husband. Other persons were subsequently brought in and made parties defendant. The original was superseded by an amended cross complaint, which was filed by leave of the court to conform to the proofs, and, for all practical purposes, it will only be necessary to take note of the allegations of the latter.
Omitting matters of form, it is alleged, in substance, that on November 13, 1865, a patent was issued under the donation act to William Collins and Mary T. Collins, his wife, for a tract of land containing 318.54 acres, situate in sections 27 and 34, township 1 S., range 1 E. of the Willamette meridian, the west half to the husband, and the east half to the wife; that on the 22d day of June, 1881, William Collins, for and in consideration of $2,000 to him in hand paid by his said wife made, executed, duly acknowledged, and delivered to her his certain conveyance, by which he remised, released, and forever quitclaimed unto her all his right, title, and interest in and to said donation land claim; that said deed so executed and delivered was recorded on October 8, 1881, at page 82 of Deed Book No. 49 of the record of conveyances of the county of Multnomah, state of Oregon; that it was the intention of both parties to said conveyance that William Collins should and would thereby release, remise, and forever quitclaim unto Mary T. Collins all his right, title, and interest in and to the whole of said donation land claim but, by mistake of the draftsman or scrivener who drew the deed, the meridian, county, and state in which said land was situated were omitted, and should have been inserted as the Willamette meridian, county of Multnomah, and state of Oregon; that said deed, at the time it was spread upon the records, was not entitled by the laws of Oregon to be recorded for want of a proper certificate to the notary's authority and the genuineness of his signature, and a certified copy of said attempted record of said deed could not, therefore, be received in evidence in the action of ejectment; that, at the time of the filing of the cross complaint, the existence and whereabouts of said original deed was unknown, and the same was lost, but has since been discovered, from which it appears that the entry upon the said Record Book No. 49 has, by fraud or mistake on the part of some person unknown to the plaintiff, been altered by the erasure of "thirty-four" in that part of the description wherein "thirty-four" appears in the original deed, and the insertion of "thirty-seven" instead thereof, so that the description in the certified copy of said deed as now recorded does not conform to the true section, as mentioned in said patent and contained in said quitclaim deed, thereby casting a cloud upon plaintiff's title to said land. And the plaintiff further avers that the private seal affixed to said original deed is a printed impression of the letters "L.S.," inclosed in a printed bracket, and has no scroll or sign, made with the pen or otherwise, as a seal; that the defendants claim and assert that said deed is not sealed, and is therefore void, which claim also casts a cloud upon plaintiff's title, but that said William Collins intended to and did deliver said instrument to his wife as and for his sealed deed, and intended to seal the same, but by mistake of the scrivener failed to do so; that said mistakes were each and all of them mutual as to the parties to the said deed, who both intended that said description in the deed should be the true and correct description of the land, and free from each and all of said mistakes; that at the time of the execution of said deed William Collins was the owner in fee simple of the west half of said donation claim, which he agreed, for the consideration of $2,000, to convey to his said wife, in fee simple, and that said quitclaim deed was executed in pursuance of said agreement, but that, by the mutual mistake of the parties, the premises were misdescribed; that thereupon, and after the execution of said deed, William Collins delivered to the said Mary T. Collins the possession of the said west half of said claim and the whole thereof, and she and her successors in interest, including this plaintiff, have ever since been, and are now, in possession, claiming to own the same in fee simple; that on September 1, 1887. Mary T. Collins, for the consideration of $8,000, sold, and by warranty deed conveyed, the whole of said donation land claim to Albert L. Maxwell and James H. Huddleson, and that the plaintiff, by mesne conveyances, subsequently became the owner thereof; that, by reason of the mistakes in said conveyance to Mary T. Collins, the defendant Abbie K. Munger, and the heirs at law of Mary T. Austin, claim that at the time William Collins died he was the owner of the legal title to the west half of said claim, and that they, as his heirs at law, are the owners in fee simple thereof; and that Abbie K. Munger commenced an action at law to recover possession of the undivided half of the west half of said claim. The plaintiff, for a further cause of suit against the defendants, after reiterating, in substance, the matters theretofore alleged in said complaint, further alleges that neither of the defendants, their ancestors or predecessors in interest, have been seised or possessed of said lands, or any part thereof, within 10 years prior to the 9th day of September, 1896, or since June 22, 1881, and that plaintiff and its predecessors in interest have for more than 10 years prior thereto been in the actual, open, notorious, adverse, exclusive, and continuous possession of said premises, and the whole thereof, claiming to own the same in fee simple, under color and claim of title; that, by reason of said claim of the defendants hereinbefore set out, plaintiff's title is clouded and rendered insecure, and that such contention casts a cloud upon plaintiff's title, which should be removed, and its title quieted, as against the claim of said defendants. Defendants filed a motion to strike out, and a demurrer to said amended cross complaint, which being overruled, they filed an answer, denying each and every material allegation of said complaint except the statement that the seal to the original deed is a printed impression of the letters "L.S.," inclosed in printed brackets, and that it has no other scroll or sign, made with the pen or otherwise, as a seal; and, further answering, they allege, among other things, that the deed is not sealed, and is therefore void; that they are the owners in fee of an undivided interest in the west half of said donation land claim; and pray that their title may be quieted. To this a reply was filed. The decree being for the plaintiff, certain of the defendants appeal.
A. Bernstein and Richard Williams, for appellants.
Wm. D. Fenton, for respondent.
WOLVERTON C.J. (after stating the facts).
The interposition of the motion to strike out and the demurrer to the cross complaint involves a matter of practice, as well as the jurisdiction of the court to take and entertain cognizance of the subject-matter of the controversy. It is first insisted on the part of the defendants that the plaintiff, having pleaded a full defense in the action at law, not only by putting at issue every material allegation of the complaint therein, but by setting up affirmatively that it was the owner in fee simple and in the legal possession of the premises, is precluded, under the practice, from filing at the same time a cross complaint in equity praying a stay of the action until the case has been disposed of in the equity forum. In Dolph v. Barney, 5 Or. 191, 215, it was held by this court that a cross bill was properly stricken out on motion, where the defendant in the action at law had specifically denied the plaintiff's title,...
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