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conclusive proof of the statements contained ror in admitting the decree in evidence for the in the decree and of the facts upon the sup- purpose for which it was offered and in giyposed existence of which it is based. Under ing it effect as evidence to establish Benno rule of law of which we have knowledge | jamin Holiaday's ownership of the land. was it admissible for that purpose. A judg- It is next contended that the court erred in ment is admissible in an action between stran- instructing the jury that the plaintiff, being gers to prove the fact of its own rendition and a married woman at the time her right of acthe legal consequences which result from it, tion accrued, had 15 years thereafter in which or when it forms a link in the chain of title to bring her action, and, in refusing to inof the party offering it, or when it character- struct as requested by the defendant, that her izes the possession of one who claims under it, right of action was barred in 10 years. In and perhaps in some other instances; but it Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455, is not admissible as proof of the statements and in Stubblefield v. Menzies, 8 Sawy. 41, contained therein, or the facts upon which the 11 Fed. 208, it was held that, under the statjudgment was founded. Freem. Judgm. $ ute, a married woman has 15 years in which 416; Black, Judgm. § 604. Even judgments to bring an action to recover real property, in rem, which are generally said to be conclu- and we regard this as a correct interpretation sive upon the whole world, are not always ad- of the statute. The exemption of a married missible as proof of the facts upon which they woman from the operation of the 10-years are based, except as against parties who were statute of limitations, and allowing her 5 entitled to be heard before they were rendered. years additional time, is founded upon her Bigelow, Estop. 47; Brigham v. Fayerweather, marital relation, and not upon the idea that 140 Mass. 411, 5 N. E. 265; De Mora V. such relation prevented her from suing in Concha, 29 Ch. Div. 268. In such case it is | her own name. As said by Mr. Justice Deady: said no one but parties or privies is bound by “It was because of her status as a married the findings of fact contained in a judgment woman, which was supposed to disqualify or or decree, although they may be bound to ad- disable her from asserting her rights, and not mit the title or status which it establishes. for the reason that she therefore might not be The general principle is thus stated in Steph. permitted to sue alone.” Stubblefield v. MenDig. Ev. art. 42: "Statements contained in zies, supra. If the married woman's acts of judgments as to the facts upon which the 1878 and 1880 removed all legal disabilities judgment is based are deemed to be irrelevant of a married woman, as claimed by the deas between strangers, or as between a party fendant, they did not change her status or reor privy and a stranger, except in the case move her marital disability, and so did not reof judgments of courts of admiralty condemn- peal or modify the statute of limitations. In ing a ship as prize.” The case of Buckingham the opinion of the legislature, the status of a v. Hanna, 2 Ohio St. 551, cited and mainly re- married woman is a sufficient reason for allied upon by plaintiff, does not seem to us lowing her not to exceed five years in which to be in point here, because the decree offer- to bring the action in addition to the time aled and admitted in that case operated to lowed persons not laboring under such disatransfer the title of the property in contro- bility; and this additional time is allowed beversy from one of the parties to the other, and cause of her coverture, and not because she is was therefore admissible in evidence as con- disabled in fact from prosecuting the action. stituting one of the muniments of title the It is next claimed that the court erred in same as a deed or other conveyance would instructing the jury that the delivery of the have been. But the decree in the suit of Hol- summons to the sheriff of Clatsop county, laday v. Holladay did not transfer or purport with intent that it should be served upon the to transfer title, but only to establish, as be- defendant Malin, followed by service upon tween the parties, the character in which him seven days thereafter, stopped the runJoseph Holladay held the title; and while it ning of the statute of limitations. The cormay have been admissible as proof of the au- rectness of this ruling depends upon whether thority under which the receiver executed the Malin was in possession of the property in deed to Joseph Holladay in 1889, if it was controversy at the time the action was commade in pursuance of this decree, and if the menced, within the meaning of the statute question was material, yet it was not admis- which requires an action for the recovery sible as evidence to prove the facts upon of real property to be commenced against which it was based. It was only the fact, if the party in the actual possession of the material at all, that such a decree had been premises at the time, if they are in the pos. rendered, and the legal consequences thereof, session of any one. 1 Hill's Ann. Laws Or which could be thus proved. It could not be $ 316. An attempt to commence an action is used as a medium of proving the matters of made equivalent to the commencement there. fact recited in it, or to charge the defendant of, within the meaning of the statute of linin this action by reason of any fact found or itations, when the complaint is filed and the proven in the suit in which it was rendered.

summons delivered, with the intent that it 1 Whart. Ev. $$ 821, 822; 1 Greenl. Ev. $8 shall be actually served, to the sheriff of the 538, 539; 2 Phil. Ev. p. 6, and notes; Starkie, county in which the defendants or one of Ev. (10th Ed.) *323; Key y. Dent, 14 Md. them usually resides, provided the service 86. We think, therefore, the court was in er- is actually made or the first publication bad within 60 days (Hill's Ann. Laws, $ 15); but time defendant claims he was holding adthis evidently contemplates that the defend- verse possession of the property, had knowl. ant shall be not merely a party to the rec- edge and was advised of plaintiff's claim ord, but a proper party to the action; and, and her contention that the will under which unless Malin was such a party, the fact of Mrs. Cloutrie held was invalid as to her. In naming him in the pleadings as such will not view of this testimony, and to remove any avail the plaintiff for any purpose.

The erroneous impression the jury may have refacts about which there is no dispute are ceived from the statement of the court, the that Malin, who resided in Portland, was defendant, at the proper time, requested, in temporarily in possession of the property in writing, the following instruction, which the controversy at the time the action was com- court refused to give, either in substance or menced, as the mere servant or employé of as requested: “The fact that a person claimFolladay, having been sent down a few days ing under color of title knew he was wrong before to prepare the Seaside House for the does not affect the adverse character of his reception of guests, and to act as manager holding possession. A man may take and octhereof during the season; and that he claim- cupy under a will or deed which purports to ed no interest in or right to the possession give him title to the land, and knowing that of the premises in any other capacity than his title is bad, and that another has an outas a mere hired servant or employé, subject standing interest in the land, yet his occuto the orders and control of his employer. pancy may be adverse; and so, though Ben, Under such circumstances, it seems to us Holladay may have known of the right of manifest that his possession was that of his plaintiff, and have acted in bad faith in exemployer, and that he was not a proper party cluding her, yet, if his possession under his to the action to recover possession of the deeds had the necessary elements of an adpremises. The person against whom the verse occupancy in other respects, his knowlstatute requires the action to be brought edge that he was wrong would not affect the must be more than a mere agent or servant, adverse character of his occupancy." This claiming for himself no interest in the prem- instruction should have been given. Coun. ises, nor right to the possession or control sel for plaintitf frankly admitted at the arguthereof; but it must be some person in pos- ment that the court was in error in stating session, exercising acts of ownership, and that an adverse holding under color of title claiming title or right to the possession in must be with an honest belief on the part of himself. A person may be in possession of the claimant that his title is good. This land either in person or by some agent or being so, the defendant was entitled, in view servant acting under his direction and con- of the testimony, to have any erroneous imtrol; and in the latter case the possession pression the jury may have received from of the agent or servant will be the possession the remark of the court removed by a proper of the employer, and he is the party against instruction, and for that purpose the instrucwhom the action must be commenced, and tion requested or a similar one should have not the agent or servant. "A mere servant been given. or employé," says Chief Justice Wallace, The court also instructed the jury that the "claiming for himself no interest in the prem- statute of limitations would not commence to ises, nor any right to their possession, but run as to the property conveyed by Mrs. acting under the control of another, and only Cloutrie to the defendant in June, 1877, until in that manner occupying and being per- the deed was recorded and the defendant sonally upon the premises, cannot be sued in entered into the actual possession of the an action of ejectment brought to recover property conveyed. This instruction wholly them, for such facts and circumstances only ignored the contention of the defendant that, go to show that the employer, and not the at the time the conveyance was made, Mrs. servant or employé, is the party in posses- Cloutrie was, and for a long time prior theresion, and, of course, answerable in that ac- to had been, in possession, holding adversely tion.” Polack V. Mansfield, 44 Cal. 39; 1 to the plaintiff, and therefore the statute Waite, Act. & Def. 81; Hawkins v. Reichert, commenced to run from the time the plaintiff 28 Cal. 534; Chiniquy v. Catholic Bishop, 41 was ousted by her, and not from the entry Ill. 148; People v. Ambrecht, 11 Abb. Pr. 97; of the defendant. Mrs. Cloutrie entered into Redfield v. Railroad Co., 25 Barb. 54. We the possession of that portion of the donation think, therefore, the court erred in holding land claim of her mother in controversy in that the action was commenced when the this suit in 1872, under a will regular in complaint was filed and the summons served form, purporting to devise the whole of it to on Malin.

her, and thereafter remained in possession In the course of the trial, the court, in the and treated the property as her own, sold presence and hearing of the jury, stated, in and conveyed by warranty deeds the whole substance, that an adverse claim under color of definitely described portions thereof, mortof title, to ripen into a perfect title, must be gaged the remainder to secure the payment made in good faith, and with an honest be- of her debts, and finally conveyed the mortlief on the part of the claimant that his title gaged property in satisfaction of the mortis good. The testimony of plaintiff tended gage to the defendant, and delivered possesto show that Benjamin Holladay, during the sion to him. These were circumstances of more or less importance indicating the asser- addition to Dalles City, Wasco county, Oretion of a claim of title and possession incon- gon, and running thence in a southerly direcsistent with and hostile to the title of the tion along Washington street 70 feet, thence plaintiff as a tenant in common, and was in an easterly direction 100 feet, to the west therefore evidence tending to show, and from line of lot 10 in said block 2, thence in a which the jury would have been justified in northerly direction 70 feet, along the west finding, an ouster and adverse holding by line of said lot 10, to the alley, and thence Mrs. Cloutrie. Freem. Coten. 88 224, 242; along said alley 100 feet, to the place of beLefavour v. Homan, 3 Allen, 354; Carpenter ginning, and being the northern 70x100 feet v. Thayer, 15 Vt. 552; Wright v. Kleyla (Ind. of lots 11 and 12 in said block 2,"-declared a Sup.) 4 N. E. 16. And, while plaintiff gave trustee as to said premises for all persons testimony tending to show that Mrs. Cloutrie taking and to take under the last will and was holding in recognition of her title, the testament of Jonas Whitney. The will, question of ouster art adverse possession among other things, provides: “I then order was, nevertheless, under the evidence, a ques- and bequeath that Anna, my wife, in case tion of fact for the determination of the she survives me, do have during her life all jury; and the court was in error in assum- the rents and profits of the following real esing, as it necessarily did in the instruction tateowned by me, viz.: (Here follows a descripcomplained of, that Mrs. Cloutrie's posses- tion of the above and other lands]; and at sion, up to the time of the conveyance to the her death all said land and personal propdefendant, was consistent with, and in recog- erty remaining shall go to and belong solely nition of the plaintiff's title.

to my daughter, Sarah Moore, and the heirs Judgment reversed, and new trial ordered. of her body.” A codicil thereafter executed

makes the following provisions: “(1) That

after the death of my wife, Anna Whitney, (27 Or. 117)

I request that the profits and income arising MOORE et al. v. SIMONSON.

from my estate shall go to the equal educa(Supreme Court of Oregon. April 1, 1895.) tion of the children of my only daughter, Life TENANT-PORCHASE OF OUTSTANDING TITLE Sarah Moore, or so much thereof as may be -CONSTRUCTIVE TRUST-IMPROVEMENTS

required to educate them in the common and -WASTE-SET-OFF. 1. An executrix and life tenant, in posses

higher English branches. (2) That I request sion of lands of which her testator owned the my said wife, Anna Whitney, shall during equitable title, who buys in the outstanding her lifetime appoint a suitable person to act legal title, supposing it to be necessary for the as trustee, and to have the charge of my said protection of the estate, paying therefor, out of her own moneys, a sum wholly disproportionate

estate after her death, and who shall be auto the value of the land, holds the legal title thorized to carry out the provisions of my last so purchased in trust for the remainder-men. will and testament, including this codicil.

2. The life tenant, upon being declared such trustee, is entitled to be reimbursed from the es

(3) That I desire that if at any time after the tate for the amount paid by her in buying in death of my wife, Anna Whitney, my said the title, and also for the sum paid for å street daughter, Sarah Moore, should need any asimprovement constituting a betterment inuring

sistance from my said estate, I request and to the benefit of the inheritance. 3. A life tenant under a will, who is de

order that she shall be furnished from my clared to be a trustee for the remainder-men as said estate with sufficient means to enable to an outstanding legal estate purchased by her,

her to live in a comfortable manner during is not entitled to reimbursement for the value of permanent improvements voluntarily made by

her life. (4) That I desire and request that her on the land.

after the death of my said wife Anna Whit4. In a suit by remainder-men under a will ney, as the children of my daughter, Sarah to have the life tenant declared a trustee for them as to an outstanding legal estate purchased

A. Moore, become of age, they shall each reby her, she cannot be made liable for waste,

ceive their proportion of my said estate, when there is no claim therefor under the plead- share and share alike." The will was exeings, nor evidence showing her guilty of waste.

cuted August 28, 1871, and the codicil SepAppeal from circuit court, Wasco county; tember 19, 1876. The wife was named as W. L. Bradshaw, Judge.

executrix of the will. The testator died in Action by Sarah A. Moore and others October, 1876, and his widow, the defendant against Anna Simonson, as executrix and above named, was shortly afterwards, upon life tenant of lands of which her testator probate of the will, appointed executrix, and owned the equitable title, to have a purchase has never been discharged. The plaintiff by her of the outstanding legal title declared Sarah A. Moore is the daughter of the testo be held by her in trust for all persons tak- tator, and plaintiff Anna Moore is the daughing under the will. From a decree granting ter of Sarah, who has seven other children the relief prayed, but disallowing certain now living, all of whom are minors, to wit, expenditures by the defendant for improve- Homer W., Chauncey H., Nathaniel B., Wilments, etc., both parties appeal. Modified. liam A., Vivian E., Garfield, and Lena Moore.

The purpose of plaintiffs in this suit is to At the date of the death of the testator, he have defendant, Anna Simonson, who holds was the owner of the equitable title to the the legal title to the following described premises above described, through mesne conpremises, to wit: “Beginning at the north- veyances from Winsor D. Bigelow, whose west corner of lot 12 in block 2, Bigelow's title was derived from the United States, un

v.39P.no.10—70

der the act of September 27, 1850 (chapter proceeds of all the property; that is, the net 76), commonly called the “Donation Act." rents. Q. State whether or not she ever The Missionary Society of the Methodist claimed to be the absolute owner of the Episcopal Church held the legal title under property during that time to you. A. She patent from the United States, but in trust, never did. Q. To whom, if any one, did she however, for the testator, and for his use claim the property belonged? A. To Mrs. and benefit. On the 3d day of October, 1877, Anna Moore, I think it is, and her children. the defendant bought in the outstanding title her daughter and her children; largely the of the missionary society, and took a deed children. Q. Do you remember any particuthereto in her own name, paying $420 as a lar time when she spoke of the property be consideration therefor. In 1882 the grade of ing owned by the persons mentioned ? A. In Washington street in front of the premises the spring of 1883, or about the time the imwas raised from 242 to 5 feet, at an expense provements were made on the property. I to defendant of about $100, and the build- think it was in 1883. I cannot say for cerings situate thereon were raised so as to con- tain. Q. Can you explain in what connec form to the grade at an additional expense tion she made the claim? A. Referring to of about $3,000. During the time the building the improvements on the property, she was being repaired, the defendant sold some spoke of it as being in the end going to Mrs. irop doors therefrom, for which she realized Moore and her children. The money in mak$100. The court below decreed that the de ing the improvements was borrowed from fendant holds the legal title to said premises, French & Co., and the note was signed by but in trust for all persons taking and to take Mrs. Whitney, A. B. Moore, and wife. I under the will of Jonas Whitney; that two think the amount was two thousand dollars, thirds of the amount paid the Missionary she having some money in her name, which Society in buying in its outstanding title, to was also expended on the improvements, wit, $280, plus $3,000, expended on the build- which came from rents of buildings and ings, less the sum of $400, received from the farm." Mrs. Sarah A. Moore also testifies sale of the iron doors, leaving a balance of that her mother, the defendant, claimed only $2.880, was a charge upon the estate; and a life estate in the premises up to the time that, upon the payment of said sum by plain- she was married to Simonson, which was tiffs, the defendant shall convey said premises some time after the improvements were to them and to said minor children, by a good made. It may be remarked, while passing, and sufficient deed, subject to the life estate that the defendant held, not only the life esof the defendant, in accordance with the last tate to the premises under the will of Jonas will and testament of the said Jonas Whitney. Whitney at the time she purchased the outFrom this decree both parties appeal. Other standing mission title, but she occupied the facts will appear in the course of the opinion. position of a trustee in respect to said premF. P. Mays, for plaintiffs. A. S. Bennett,

ises, the owners of the remainder under said for defendant.

will being the cestuis que trustent. She was

then executrix of the estate, and bad served WOLVERTON, J. (after stating the facts). as such scarcely a year, and was also in posFrom the testimony it appears that in 1877, session, collecting rents. Ewing, J., in Bowl. at the time the defendant-bought in the mis- ing's Heirs v. Dobyns' Adm'rs, 5 Dana, 416, sion title, the property was worth from nine says: "It is certainly true, as a general to ten thousand dollars. Mr. D. M. French proposition, that if a trustee, mortgagee, or says the land was worth $1,000, and the im- tenant for life, being in possession, purprovements $9.009. William Lord testifies: "I chases in an outstanding title or incumshould think the land was worth $1,000, and brance, he cannot apply it to his own benefit, the improvements $8,000. Whitney claimed but it, in general, inures to the benefit of it was worth more." The defendant was him under whom he entered, or is considered asked, “What was the value of the property as held in trust for the cestui que trust, mort. at the time you bought in the mission title?" gagor, or him in reversion or remainder." to which she answered, “I suppose the prop- Or, as stated by Bibb, C. J., in Morgan's erty was worth perhaps six thousand dol- Heirs v. Boone's Heirs, 4 T. B. Mon. 297: lars." She testifies, however, that, imme- “It is a general principle that if a trustee, diately after she obtained the mission deed, mortgagee, tenant for life, or purchaser gets she claimed the whole interest in the prop- an advantage, by being in possession, or be erty, and continued to claim it from that hind the back of the party interested, and time on, including the time the improvements purchases in an outstanding title or incumwere made by her, but that prior to the ex- brance, he shall not use it to his own benefit. ecution of the deed she had only a life es- and the annoyance of him under whose title tate therein. Dr. H. Logan, who became he entered, but shall be considered as boldthe agent of defendant in 1878, or 1879, and ing it in trust." See, also, Holridge v. Gilacted as such for her until after the improve- lespie, 2 Johns. Ch. 33; Whitney V. Salter ments were made, testifies as follows: "Q. (Minn.) 30 N. W. 755; Daviess v. Myers, 13 State, if you know, what interest she [de- B. Mon. 511; 1 Washb. Real Prop. 96. There fendant) was claiming in this property while is but little doubt that the defendant par you were acting as her agent. A. The net chased this title with her own funds. They came out of the rents and profits which were The defendant claims, however, that, it rightly hers under the will, or else were de- she is held to be a trustee, she ought to be alrived from the personal property which she lowed a fair proportion of the amount exwas also entitled to after the payment of pended by her in the purchase of the outdebts and the expenses of settling the estate. standing title, and in making permanent imHowever this might be, a court of equity provements, upon the ground that she made may treat the claim as having been pur- such expenditures from her own funds, bechased for the benefit of those in remainder. lieving that she was the owner of the absoIn the case of Bowling's Heirs v. Dobýns' lute title. The rule is established by Hatcher Adm'rs, supra, which was a stronger case v. Briggs, 6 Or. 31, that where a purchaser for the life tenant than the one at bar, the of real property, for full value, at an unaucourt say: "And though, after a recovery in thorized partition sale, in good faith and withejectment, and before possession is taken, it out notice of any infirmity of title, believing might be competent for the mortgagee, trus- it to be good, makes permanent improve tee, or tenant for life to abandon their claims, ments, which add to the value of the estate, and take shelter under the adversary claim he is entitled to recover to the extent of such by purchase, without waiting to be ousted added value, as well as for the amount exby writ, yet they will in all such cases be pended in purchasing his supposed title, held to a rigid scrutiny and strict accounta- where such improvements and purchase price bility. Slight testimony tending to show inure to the benefit of the true owners. But that they purchased with the means of the the defendant occupies the position of a selfmortgagor, cestui que trust, or him in rever- constituted trustee, by purchase of an outsion or remainder, or with the combined standing title, which inured to the benefit of means of the latter and the tenant for life, others as well as of herself. She undoubtwill render the claim so acquired subject to edly believed at the time that she was taking all the rights and limitations over of the a title without infirmities, but she took it as original claim. And though a judgment has trustee, and whatever expenditures she made been recovered in ejectment, and he pur- were made in the belief that she was a life chases with his own funds, while he is still tenant only. So that she is not in a position in possession, a court of chancery might, per- to invoke the doctrine applicable to a purhaps, treat the claim as purchased for their chaser in good faith for value, making imbenefit, requiring them to account to him for provements which add to the value of the all reasonable disbursements in its acquisi- | premises. Whenever it is once established tion." In that case the life tenant was ex- that a trusteeship exists, then the obligations ecutrix of the estate, as in this, and the and duties of a trustee ensue. He will be court concluded that her purchase was in held to a strict accountability as to the mantrust for the remainder-men. Here we have agement of the trust estate, and cannot ina life tenant and an executrix of the estate cumber it except in accordance with the powin full possession, purchasing the outstand- ers given by the terms of his trust, by ing title, which she now declares was negó- authority of the court, or with the consent of tiated as an individual investment, intending the cestui que trust. So that it is difficult thereby to become the absolute owner there. to see how the defendant, being a trustee, of, unincumbered with any trust obligations. can claim for the value of improvements, on The testimony is so strong, however, that the ground of having purchased an outstandshe never claimed more than a life estate in ing title, without notice of infirmities, when the premises until a comparatively recent the very purchase itself inured to the benefit date, admitting all the while that Mrs. Sarah of other parties, and the very parties against A. Moore and her children were entitled to whom she now claims reimbursement. the remainder after her estate had termi- The defendant is a trustee of the legal title nated, that we are convinced that she had merely by operation of law. Her duties and a more equitable purpose in view when she obligations towards the owners of the estate made the purchase, and that she in reality in remainder are those of a life tenant. As intended the title to inure to the benefit of | such, she is required to keep down interest her child and grandchildren, as well as that upon incumbrances, and to keep up repairs, of herself. The property was worth at the so that those in remainder shall come into time of purchase from $9,000 to $10,000. She their estate after the expiration of the life admits it to have been worth $6,000, and yet estate in substantially the same condition as she purchased the title under which she it came to her hands. As a general propoclaims the fee for $420, so that the subsist- sition, if a tenant for life makes improveing equities are strongly against her present ments upon the premises, he cannot claim contention. Hence we think her purchase of compensation therefor from the reversioner the mission title ought now to be regarded or remainder-man, though he is under no as having been made, as she originally in- obligation to do more than keep the premises tended it, for the benefit of the devisees un- in repair, and generally he cannot make reder the will of her former husband, Jonas pairs or permanent improvements at the exWhitney and she ought now to be regarded pense of the inheritance. 1 Washb. Real as holding the legal title to said premises in Prop. 129; 6 Am. & Eng. Enc. Law, 882. trust for the beneficiaries under said will. Paxton, J., in Datesman's Appeal, 127 Pa.

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