Twigger v. Twigger

• Decision Date: 11 March 1924
• Parties: TWIGGER v. TWIGGER.
• Court: Oregon Supreme Court

223 P. 934

110 Or. 520

TWIGGER v. TWIGGER.

Supreme Court of Oregon

March 11, 1924

Department 1.

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Action by Fred C. Twigger against Martha Twigger. Judgment for defendant, and plaintiff appeals. Affirmed.

Roscoe P. Hurst and Will H. Masters, both of Portland (Harry G. Hoy, of Portland, on the brief), for appellant.

James P. Stapleton, of Portland, for respondent.

BURNETT J.

The allegations of the complaint upon which this cause was heard in the circuit court are as follows:

"(1) That plaintiff is the owner in fee simple, and entitled to the immediate possession, of the following mentioned and described real property situate in Multnomah county, state of Oregon, to wit: An undivided one-half of lots 9 and 10, in block 23, in Columbia Heights according to the plat and dedication thereof on file and of record in the office of the county clerk of said county.

"(2) That the defendant wrongfully withholds the said real property, and the whole thereof, from the said plaintiff, and denies his right thereto, or to any part thereof, and denies that plaintiff has any right, title, or interest in or to the said real property or any part thereof whatever.

"(3) That plaintiff acquired his title to said real property by descent from his father, Fred C. Twigger, or F C. Twigger, who died intestate in Multnomah county, Or., on or about the ______ day of May, 1921, and who at the time of his death was the owner of an undivided one-half of said real property; that plaintiff is the sole heir at law of said F. C. Twigger, deceased; said F. C. Twigger having died unmarried and without issue other than one son, this plaintiff, him surviving.

"(4) That plaintiff is informed and believes that defendant claims to be the sole and exclusive owner of the said real property, and the whole thereof, by reason of the form of the deed by which the said property was conveyed to plaintiff's father and said defendant (a copy of which said deed is hereunto annexed, marked Exhibit A, and made a part hereof), and by reason of her further claim that she is the surviving spouse of the said father of this plaintiff, namely, F. C. Twigger, deceased, but that said claim is without any justification or foundation in fact or in law, as more particularly appears from the following recital of facts, to wit: On or about the 18th day of July, 1914, said defendant being at said time the lawful wife of one A. J. Ward, a decree of divorce, or pretended decree of divorce, from said A. J. Ward was awarded the said defendant by the circuit court of the state of Oregon for Clackamas county; that within six months from and after the granting of said decree, and, to wit, on the 31st day of the same July, 1914, said defendant, in the city of Stevenson, state of Washington, entered into a contract, or pretended contract, of marriage with the said F. C. Twigger, the father of this plaintiff; that at the time of the said marriage, or pretended marriage, of said Martha Ward, the above-named defendant, with the said F. C. Twigger, as aforesaid, the said A. J. Ward, husband of the said Martha Ward, was still living; that at and prior to the said marriage, or pretended marriage, of said defendant with the said F. C. Twigger, and continuously ever since the enactment thereof, section 7151, Remington's Codes & Statutes of Washington, being the compiled laws of the said state of Washington, provided, and still provides, that certain marriages are prohibited, particularly including any marriage when either party thereto has a wife or husband living at the time of such marriage; and such has been the law in force in the said state of Washington continuously since some time prior to the said marriage, or pretended marriage, of said defendant with the said F. C. Twigger, the father of this plaintiff; and no act validating, or attempting to validate, such prohibited marriages has ever been enacted by the state of Washington since the said marriage, or pretended marriage, of said defendant to the said F. C. Twigger; that immediately after the performance of the said marriage ceremony in the said state of Washington, and, to wit, on or about July 31, 1914, defendant and said F. C. Twigger, returned to the state of Oregon, where they resided together continuously until the death of said F. C. Twigger, hereinbefore alleged; that some time after their said return to Oregon said F. C. Twigger purchased from one Mary E. Reeves, a widow, the real property hereinbefore described, taking and receiving from the said Mary E. Reeves, the then owner of said real property, the deed, a copy of which is hereunto attached and marked Exhibit A."

So far as material to the consideration thereof, the deed mentioned in the complaint reads thus:

"Know all men by these presents, that I, Mary E. Reeves (a widow) of Portland, state of Oregon, being of lawful age in consideration of ten ($10.00) dollars to me paid by F. C. Twigger and Martha Twigger, husband and wife of Portland, state of Oregon, do hereby grant, bargain, sell and convey to F. C. Twigger and Martha Twigger their heirs and assigns, all the following bounded and described real property situate in the county of Multnomah, state of Oregon.

"All of lots numbered nine (9) and ten (10), block numbered twenty-three (23) in Columbia Heights in city of Portland as shown by the duly recorded plat.

"To have and to hold the above granted premises with all the rights, easements and appurtenances thereto belonging unto the said F. C. Twigger and Martha Twigger their heirs and assigns forever. * * *"

The circuit court sustained a general demurrer to this complaint, and, as the plaintiff did not plead further, awarded judgment in favor of the defendant, from which the plaintiff appeals, assigning as error the sustaining of the demurrer.

The requisites of a complaint in ejectment are thus set down in section 327, Or. L.

"The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage, such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had."

The complaint does not claim damages for the detention of the property, but that may be waived.

If the complaint had stopped with the first two paragraphs, no question could arise but that it stated facts sufficient to constitute a cause of action, for thus far it contained all the essential elements of the statute just quoted. The pleader, however, has undertaken to declare the defendant's ground of defense, incorporating it in the statement of his grievance, and it remains to be seen whether he has committed hara-kiri and destroyed his complaint by averring a defense for the opposite party.

Turning to the statement of facts which he propounds as the basis of the defendant's claim, we observe that a decree of divorce was awarded to the present defendant in Clackamas county on July 18, 1914, and that she married the plaintiff's father in the state of Washington on the 31st of the same month. If at that time she had been divorced from Ward, he was then no longer her husband. It is true that our statutes disqualify divorced spouses from contracting subsequent marriages within six months. Or. L. § 515. The plaintiff undertakes to apply that disqualification to the marriage in the state of Washington by saying that a marriage there is prohibited "when either party thereto has a wife or husband living at the time of such marriage." This is all the prohibition imputed to the statutes of our sister state, but, having already stated that the defendant was divorced from Ward, her marriage would not come within the enactment as pleaded, because at that time Ward was not her husband.

As stated, the Washington marriage took place July 31, 1914. The act of the Oregon Legislature of March 3, 1919, codified as section 9742, Or. L., reads thus:

"All marriages which were in all other respects regular, entered into prior to the passage of this act and before the expiration of six months from the date of a decree dissolving the bonds of matrimony as to one or both of the contracting parties, and there being no existing right of opening or vacating such decree, are hereby declared valid marriages."

It is doubtful if there is sufficient in the defense alleged by the plaintiff for the defendant to comply with this curative statute. No facts are stated from which we may conclude that the Washington marriage was "in all other respects regular." For instance, the age of the contracting parties is not stated, neither does it appear but that they were within the prohibited degrees of kindred or of a prohibited race condition and the like; neither is there enough averred concerning the decree of divorce to enable us to determine whether there was any then "existing right of opening or vacating such decree." So far then as the defendant's case, as stated by the plaintiff, depends upon the Washington marriage, it probably would not be sufficient to overcome the complaint if it had been the actual answer of the defendant tested by a demurrer. But we must construe the plaintiff's pleading most strictly against him when assailed by demurrer. We have seen that the Washington statute as pleaded was not violated by the marriage, because it affirmatively appears that the woman then had no prior husband. As to our own curative statute the burden rests upon the plaintiff, who attacks the Washington marriage, to show by...