Spaur v. McBee

Decision Date07 April 1890
Citation19 Or. 76,23 P. 818
PartiesSPAUR v. MCBEE.
CourtOregon Supreme Court

Appeal from circuit court, Douglas county; R.S. BEAN, Judge.

This is a suit in equity to enjoin the enforcement of a judgment in an action of ejectment, and to require the present defendant to convey to the plaintiff the real property in controversy. The defendant had a decree in his favor in the court below from which this appeal is taken.

(Syllabus by the Court.)

Where it is apparent on the face of a complaint that the action was not commenced within the time limited by the Code, under subdivision 7 of section 67, Hill's Code, the objection must be taken by demurrer; and, under section 71, if not so taken, it is waived, and cannot be taken by answer. Under that section, it is only where the objection does not appear on the face of the complaint that the same is to be taken by answer. Hill v. Cooper, 6 Or. 182, approved and followed. And held, further, that the amendment to section 382, Hill's Code, made in 1878, has not impaired the authority of said clause or rendered the same inapplicable.

. A defendant sued in ejectment might, under that amendment, use his equitable title defensively in an action at law, but he could use it for no other purpose.

A court of law, under that provision, cannot administer complete relief in favor of such equitable owner by decreeing specific performance when proper or necessary.

In such case a judgment at law does not estop or preclude the party against whom it is rendered from demanding of the defendant in a separate suit in equity brought for that purpose, a conveyance of the legal title, where the same was acquired by the defendant with notice of the plaintiff's equitable rights.

J.F. Watson, for appellant.

J.W Hamilton and W.R. Willis, for respondent.


By his complaint the plaintiff claims to be the equitable owner of the land in controversy, and to have been in the actual and exclusive possession of the same ever since the year 1862. It appears that in the year 1862 one J.A. Velzian and Jesse Fry owned the land in controversy, and that the same was a part of a larger tract owned by them. That the plaintiff also owned a large tract which adjoined the lands of Velzian and Fry. That a small parcel of the plaintiff's land lay on the west side of the south Umpqua river, consisting of about 6 acres, and that the parcel in controversy was separated from the other lands of Velzian and Fry by said river, and was situated on east side thereof, and consisted of about 24 acres, and joined the plaintiff's other lands. That at this time the plaintiff and Velzian and Fry entered into an agreement to exchange their small parcels one for the other; but, inasmuch as the land which plaintiff was to receive in exchange was regarded of greater value than the other, he was to pay the difference in hogs, which he did, in the sum of $75, the difference in value agreed upon. At that time the plaintiff entered into the possession of the 24-acre tract, and caused it to be included in his inclosure, and every year thereafter, except two or three, he cultivated the same, and when the land was not in cultivation he used it in all respects like his other lands,--sometimes using it for pasturage. That at the same time Velzian and Fry entered into the possession of the six-acre tract, and retained possession of the same. It also appears that Velzian and Fry conveyed their entire tract of land by deed to the defendant, including the 24 acres which they had sold to the plaintiff; but, at the time the defendant took said deed, he had full notice of the plaintiff's rights in and to said 24 acres. In September, 1887, the defendant recovered a judgment against the plaintiff herein, in the circuit court of Douglas county, Or., for the possession of said 24 acres, and is about to issue an execution to support the same. The defendant's answer denies the material allegations of the complaint, pleads the statute of limitations, and relies upon the judgment in ejectment as an estoppel.

1. A very decided preponderance of the evidence tends to support the plaintiff's allegations, and, I think, clearly entitles him to the relief which he seeks, unless his right thereto is defeated by something shown upon the part of the defendant, or unless there is some fatal defect or omission in his own statement of the case; and to those matters our attention will now be directed.

2. The first point presented by the answer of the defendant requiring notice, is his plea of the statute of limitations; but, if that objection really existed, and was available at any stage of the suit, it was waived because not taken by demurrer. The facts are fully stated by the complaint; and, if the plaintiff's equity was barred by the statute, the objection was apparent on the face of the complaint. In such case the objection must be taken by demurrer, or else it is waived. Section 67, Hill's Code, enumerates the grounds of demurrer to the complaint, and the seventh specification is "that the action has not been commenced within...

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21 cases
  • Smith v. Love
    • United States
    • Florida Supreme Court
    • March 28, 1905
    ... ... defendant to a verdict if sustained. Goldberg v. Kidd, 5 ... S. D. 169, 58 N.W. 574; Spaur v. McBee, 19 Or ... 76, 23 P. 818 ... It has ... been suggested that the Land-Office Department of the United ... States having ... ...
  • Hawkins v. Donnerberg
    • United States
    • Oregon Supreme Court
    • November 18, 1901
    ... ... that the remedy is barred, the objection can only be taken by ... answer. Id. § 3; Spaur v. McBee, 19 Or. 76, ... 23 P. 818; Davis v. Davis, 20 Or. 78, 25 P. 140. It ... will be remembered that the complaint avers that the ... ...
  • Campbell's Automatic Safety Gas Burner Co. v. Hammer
    • United States
    • Oregon Supreme Court
    • December 21, 1915
    ... ... an original suit. Hill v. Cooper, 6 Or. 181; ... Starr v. Stark, 7 Or. 500; Spaur v. McBee, ... 19 Or. 76, 23 P. 818; McMahan v. Whelan, 44 Or. 402, ... 75 P. 715; Fire Association v. Allesina, 45 Or. 154, ... 77 ... ...
  • Dixon v. Schoonover
    • United States
    • Oregon Supreme Court
    • February 8, 1961
    ...201 Or. 416, 270 P.2d 150; Eastman v. Crary, 131 Or. 694, 284 P. 280; Creason v. Douglas County, 86 Or. 159, 167 P. 796; Spaur v. McBee, 19 Or. 76, 23 P. 818. We think that this rule should not be applied in the circumstances of this case. If it is said that the plaintiffs waived the defens......
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