State v. Warner Valley Stock Co.

• Decision Date: 17 May 1910
• Citation: 108 P. 861,56 Or. 283
• Parties: STATE v. WARNER VALLEY STOCK CO. et al.
• Court: Oregon Supreme Court

108 P. 861

56 Or. 283

STATE v. WARNER VALLEY STOCK CO. et al.

Supreme Court of Oregon

May 17, 1910

On motion for rehearing. Motion denied.

For former opinion, see 106 P. 780.

A.M. Crawford, Atty. Gen., and I.H. Van Winkle, Asst Atty. Gen., for the State.

Coovert & Stapleton and Carey & Kerr, for respondent.

William D. Fenton, amicus curiae.

EAKIN, J.

By this motion counsel for defendant again urge that the statute of limitations bars this suit, and question our construction of section 392, B. & C. Comp. As supplementary to what is said in the opinion, we may add that there can be no doubt that our statute of limitations (sections 3-26, B. & C. Comp.) can have no application to the state, except by virtue of the provision of section 13, which has been repealed by the amendment of 1903 (Laws 1903, p. 18), and provides that the limitations prescribed in this title shall apply to the state. It is a common-law maxim "Nullum tempus occurrit regi." 1 Wood on Limitations, § 52, states that "Except the statute otherwise expressly provides, it [the statute of limitations] cannot be set up as a bar to any right or claim of the state." Those sections of the Code only apply to actions, and section 392 provides that suits shall only be commenced within the time limited to commence actions, as provided in chapter 2, tit. 1, of this Code (sections 3-26). This does not make the statute of limitations apply to suits by the state, nor does section 13 apply to suits. And the state is not barred. The clause of section 392 of the Code, which provides that no suit shall be maintained to set aside, cancel, or annul a patent to land issued by the United States or this state, unless commenced within 10 years, refers to persons claiming land wrongfully patented to another by the United States or this state. To make it apply to the state the statute must expressly so provide.

Again defendant urges that the suit cannot be maintained unless plaintiff is in possession of the land. This contention is fully answered in the opinion, where we hold that the relief sought is the subject of general equity powers of the court which existed prior to and independent of section 516, B. &amp C. Comp., authorizing suits to quiet title. If plaintiff is out of possession and his remedy by ejectment is adequate, then equity will not entertain jurisdiction to remove a cloud, but there are many quia timet actions in which the remedy at law is not adequate, and of which equity will entertain jurisdiction whether plaintiff is in or out of possession. If the relief is such that equity alone can grant, and the remedy at law is inadequate, that is sufficient to give jurisdiction. This principle is recognized in O'Hara v. Parker, 27 Or. 156, 168, 39 P 1004, 1006, where Pomeroy is quoted and approved, to the effect that: "Where *** a party out of possession has an equitable title, or where he holds the legal title under such circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned." In Hoopes v. De Vaughn, 43 W.Va. 447, 452, 27 S.E. 251, 253, it is held that: "A suit in equity to annul a forged deed, *** brought by the legal owner *** while out of possession of the land, is not taken out of equitable jurisdiction by the fact that the deed is void." To the same effect are De Camp v. Carnahan, 26 W.Va. 839, and Bunce v. Gallagher, 4 Fed.Cas. No. 2,133. In the latter case it is held that it is not enough that there is a remedy at law; it must be plain and adequate. The fact that the deed is void does not take it out of the jurisdiction of equity. As the invalidity of the deed does not appear on its face, but can only be made apparent by extrinsic evidence, it is the duty of equity to sweep it away. And the question of possession has no legal relation to the object now sought to be attained. Story's Eq.Jur. § 700; 17 Ency.Pl. & Pr. 284. In Booth v. Wiley, 102 Ill. 84, it is held that the rule that a bill to quiet title and remove a cloud upon a party's title lies only when the complainant is in possession of the land applies only when the object of the bill is purely to remove a cloud from the title, and not where the primary relief sought is upon other and well-established grounds. The rule has no application when a deed is sought to be set aside upon the ground of fraud. In Pier v. City of Fond du Lac, Imp., 38 Wis. 470, 481, it is said: "In those actions quia timet, which may be brought independently of the statute, we find no authority for holding that possession by the plaintiff is essential to the cause of action; and, unless an averment of such possession is necessary to show that the plaintiff has no adequate remedy at law, no valid reason is perceived why it should be required." In 4 Pomeroy Eq.Jr. § 1377, it is said a doubt was formerly...