St. Martin v. Hendershott

• Decision Date: 17 October 1916
• Parties: ST. MARTIN v. HENDERSHOTT ET AL.
• Court: Oregon Supreme Court

160 P. 373

82 Or. 58

ST. MARTIN v. HENDERSHOTT ET AL.

Supreme Court of Oregon

October 17, 1916

Department 2.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by Margaret St. Martin against William M. Hendershott and others. From a decree for plaintiff, defendants appeal. Decree modified and affirmed.

See also, 151 P. 706.

This is a suit to set aside a decree so far as it affects the plaintiff, Margaret St. Martin, and to partition real property. It is alleged in the complaint, in effect, that the plaintiff is the owner in fee and in the possession of an undivided one-half of lots 1, 2, 3, and 4 in section 21 township 4 south, range 1 west, of the Willamette Meridian that the defendant Libbie E. Hendershott is the owner of the other moiety thereof; that the defendant William M Hendershott is the husband of Libbie E., and has no interest in the land, except an inchoate right of curtesy; that the defendant Napoleon Legault holds a mortgage upon Mrs Hendershott's interest in the premises; that in a former suit, wherein John Arquette, Michel Arquette, and Margaret St. Martin, the plaintiff herein, were plaintiffs and William M. Hendershott and Libbie E. Hendershott, the defendants herein, were defendants, it was decreed that those defendants were the owners in fee simple of the entire premises, hereinbefore described, and that their title thereto was quieted as against each of such plaintiffs; that the plaintiff herein never engaged an attorney to represent her in that suit, nor did she know that she had been made a party thereto; that the attorney, naming him, who instituted the suit fraudulently neglected to appear at the trial, and the decree referred to was permitted to be given, of which this plaintiff had no knowledge until after the time to take an appeal had elapsed. The answer admits that William M. Hendershott and Libbie E., are husband and wife; that the latter is the owner of an undivided one-half of the premises; that Legault holds a mortgage upon the land; and that the decree referred to was entered. It is further substantially averred that the plaintiff ought to be estopped to controvert the validity of such decree. For another defense it is alleged that William M. and Libbie E. Hendershott are the owners in fee of the entire tract of land described in the complaint; that they have been in the actual, open, notorious, exclusive, and adverse possession of the whole of such premises for more than ten years prior to the commencement of this suit, holding the land adversely to the plaintiff and to all other persons; and such defendants have paid the entire taxes imposed upon the real property for the years 1911, 1912, and 1913, amounting to $256.36, no part of which has been repaid. The reply denied all the allegations of new matter in the answer, except that Mrs. Hendershott was the owner of an undivided half of the land and the payment of the taxes stated. For a further reply it is alleged that in perfecting the title to the real property the plaintiff had paid out more than $250, whch sum should be offset against the taxes so paid. The cause was tried, and from the testimony received the court made findings of fact and of law, and, based thereon, granted the relief prayed for in the complaint, and appointed referees to partition the land. From this decree the defendants appeal.

H. B. Nicholas and W. C. Nicholas, both of Portland (R. W. Nicholas, of Portland, on the brief), for appellants. John Bayne, of Salem, and O. R. Richards, of Portland, for respondent.

MOORE, C.J. (after stating the facts as above).

An examination of a transcript of the testimony convinces us that the former suit was instituted and tried, and the decree rendered therein, without the plaintiff's consent, and that she had no knowledge thereof until the time for taking an appeal had expired.

Considering the defendants' alleged title to the entire premises by adverse possession, the evidence discloses that on July 10 1896, a patent was issued by the United States to the heirs of Margaret Arquette, successors in interest of Louis Forcier, granting to them the real property described in the complaint. It also appears that the heirs of Margaret Arquette are her sons John, Michel, Amab, and Isaac, and her daughter, Margaret, the plaintiff herein. Isaac Arquette, so far as known, had no lineal descendants, and since he has not been heard from by his acquaintances or any members of his family for more than seven years, he is therefore presumed to be dead. L. O. L.§ 799, subd. 26. Mrs. St. Martin, Mr. Hendershott and his wife, indulging this presumption, conclude the land should be apportioned to the known surviving heirs, thereby giving to each originally an undivided one-fourth of the premises. John Arquette and his brother Michel, in the year 1889 delivered possession of the real property to Hendershott, to whom on October 19, 1891, they executed a special warranty deed, purporting to convey all such land. This deed was recorded February 8, 1892. Notwithstanding the patent from the...