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2. Acts of 1878 and 1880, removing all legal until she sold to the defendant and his grantdisabilities of married women, did not affect
ors, as hereinafter stated. On December 13, the provision giving a married woman 15 in. stead of 10 years in which to sue for land.
1872, Mrs. Cloutrie and her husband sold and 3. A mere servant or employé of an adverse conveyed 25 acres of the claim, and on July claimant, whose possession is merely temporary, 26, 1873, an additional 19 acres (which, toand who has no interest therein, is not a party
gether with the 25-acre tract, has since been in the actual possession at the time, within the meaning of 1 Hill's Ann. Laws, $ 316, requir
known as the "Seaside Hotel perty'), to ing an action to recover land to be commenced the Oregon Real-Estate Company, a corporaagainst such a party; and an action against and
tion of which Benjamin Holladay was presiservice upon such servant does not interrupt the running of limitations.
dent. Immediately after the purchase, the 4. On an issue as to defendant's adverse real-estate company, through Benjamin Holpossession, where there was testimony that de- laday, took possession and proceeded to imfendant knew of plaintiff's claim of title, the court having erroneously stated that an ad
prove the property by constructing thereon verse claim under color of title must be made in an hotel building and other valuable improvegood faith to ripen into a perfect title, it was er- ments to be used as a seaside summer resort, ror to refuse to correct the error by charging and remained in possession until December that the fact that one claiming under color of title knew that he was wrong does not affect
29, 1875, when it was conveyed to the dethe adverse character his holding.
fendant Joseph Holladay, to whom the pos5. Where the testimony is conflicting as to session was delivered. On January 27, 1874, whether the possession of one claiming under a will was adverse to the heirs, or was in recog
Mrs. Cloutrie mortgaged the remainder of nition of their title as cotenants, an instruction the claim to Benjamin Holladay, to secure assuming that limitations would not run in the payment of the sum of $4,000 and interfavor of her grantee until he recorded his deed
est. and entered into actual possession is erroneous.
This mortgage was subsequently as
signed to the defendant, who foreclosed it, Appeal from circuit court, Clatsop county;
and advertised the property for sale, under T. A. McBride, Judge.
the decree; whereupon Mrs. Cloutrie, in satAction by Mary E. Lattie-Morrison against
isfaction thereof, conveyed to him, by deed Joseph Holladay and others to recover pos
dated June 25, 1877, and recorded on July session of the undivided one-third interest of
6, 1877, the whole of the donation claim of certain lands. From a judgment for plain
her mother, and short time thereafter vatiff and the refusal of a new trial, defendant
cated the premises. The defendant gave eviHolladay appeals. Reversed.
dence tending to show that he immediately This is an action brought against Joseph
took possession thereof, and continued in the Holladay, C. B. Bellinger, and W. A. Malin open, exclusive, and adverse possession of to recover possession of an undivided one
the property conveyed by the deed of June third of the donation land claim of Elizabeth
25, 1877, and the Seaside Hotel property, unLattie in Clatsop county, Or. The defend
til November, 1883, when he surrendered posants Bellinger and Malin, by their answers,
session to the receivers appointed in a suit denied being in possession of the property,
brought against him by Benjamin Holladay; and disclaimed any interest in or claim there that the receivers remained in the exclusive to, and the action was subsequently dis
and adverse possession of the property until missed as to them. The defendant Holladay
the 18th day of July, 1889, when, by order denied all the allegations of the complaint,
of the court, it was again turned over to except his possession, and set up as a de
him, and he went into possession, claiming fense the statute of limitations, and upon
the same as owner, under and by virtue of this issue alone the cause was tried. The
a deed from George W. Weidler, trustee and facts are that on May 15, 1868, Elizabeth
receiver, made and delivered to him at that Lattie died seised and possessed of the land
time. The trial resulted in a verdict and in question, leaving as her heirs the plaintiff judgment in favor of the plaintiff for an unand three other children, to wit, Ellen Clou
divided one-fourth interest in the donation trie, John Lattie, and William Lattie, and a
claim of her mother, excepting the Seaside will in which she purported to devise the
Hotel property, a 65-acre tract, and a 2-acre whole of her property to her daughter Ellen.
tract sold by Mrs. Lattie, to which neither Subsequently, John Lattie died, intestate,
party laid claim in this action. From such leaving, as his heirs, his surviving brother
judgment the defendant appeals, assigning and two sisters; and, by reason thereof and
error in the admission of evidence and the the invalidity of the will as to plaintiff, she giving and refusal of instructions. now claims to be, and is, unless barred by C. H. Carey and F. J. Taylor, for appelthe statute of limitations, the owner and en- lant. C. W. Fulton, for respondent. titled to the possession of an undivided interest in the premises in controversy. After BEAN, C. J. (after stating the facts). On the death of Mrs. Lattie, her will was regu- the trial, plaintiff gave evidence tending to larly admitted to probate, the estate duly show that, during the time Mrs. Cloutrie and administered upon, and on the 2d of Sep- Benjamin Holladay were in possession of tember, 1872, the administrator was dis- the property in controversy, they both reccharged, and the property turned over to the ognized and admitted her right as a tenant. possession of Ellen, the devisee named in in common with them, and that neither claimthe will, who remained in possession thereof | ed an exclusive ownership or possession as against her, and did nothing amounting to an trol the proceedings or to appeal therefrom, ouster. The defendant, however, contended, nor is she claiming under or through either notwithstanding this fact, if it was a fact, of the parties thereto. Whatever right she that he had been in the adverse possession, has in the property in controversy accrued claiming as owner, under the deeds from Mrs. and was fixed long prior to the commenceCloutrie and the real-estate company, for ment of the suit of Holladay v. Holladay, or more than the statutory time, and was there- the rendition of the decree therein, and is fore entitled to prevail in this action, inde- entirely independent of any interest of the pendently of the acts or conduct of either Holladays. Nor is it sufficient that the deBenjamin Holladay or Mrs. Cloutrie. To fendant here is a party to both proceedings. meet this contention, and to show that he Estoppels must be mutual, and, unless the was in possession up to 1889, as a mort- decree is binding upon both parties, it is gagee only, the plaintiff offered, and the binding upon neither. "No, person," says court admitted, in evidence, a decree of the Mr. Freeman, "can bind another by any adcircuit court of Multnomah county of date judication, who was not himself exposed to July 12, 1886, in a suit between Benjamin the perils of being bound in a like manner Holladay and the defendant, in which it had the judgment resulted the other way." was found, adjudged, and decreed that the Freem. Judgm. $ 154. And Mr. Justice Rufdefendant held such property as the mort- fin says in Redmond v. Coffin, 2 Dev. Eq. gagee of Benjamin Holladay only, and di- (N. C.) 443: "A decree in favor of one party recting that redemption be made within 90 cannot protect another, who was not a pardays, or, in default thereof, that the prop- ty, unless he be a privy. And, indeed, a erty be sold to satisfy the defendant's claim stranger thus introduced cannot use the dethereon. This decree was not only admitted cree at all as such, because it cannot be used in evidence, but the court instructed the jury against him." And Gibson, C. J., says: that it conclusively established the fact that "That the record of a judgment can affect Benjamin Holladay was the real owner of only parties and privies, and that no one the property in controversy, and the defend- shall have advantage from it who would ant but a mortgagee in possession, and there. not have been prejudiced by it, are principles fore his rights were to be ascertained and de- with which every lawyer is supposed to be termined the same as if Benjamin Holladay familiar." Shulze's Appeal, 1 Pa. St. 251. had remained in possession of the property, See, also, 1 Herm. Estop. $$ 135, 136; Freem. and had been holding in recognition of plain- | Judgm. $ 159; Black, Judgm. $ 518; Carr tiff's title: The possession of the defend- V. Acraman, 11 Exch. 568; Henry v. Woods, ant or the receivers appointed in the suit of 77 Mo. 277; Chamberlain v. Carlisle, 26 N. Holladay v. Holladay should not be regarded H. 540; Winston v. Starke, 12 Grat. 317. as adverse to plaintiff until after the judicial Now, if, by the decree in Holladay v. Holsale in 1889.
laday, it had been adjudged that the deThe admission of the decree in evidence, fendant in this action was the owner in fee and the effect given thereto by the court, con- of the premises, and that Benjamin Hollastitute the first and an important assign- day had no interest therein, it could not ment of error in this case. The objection to for a moment be successfully contended that its admission is that, as to the parties to this such adjudication would be binding upon the action, it is res inter alios acta, and there. plaintiff, and prevent her from showing by fore not competent evidence. The funda
competent evidence, if she could, that Benjamental rule on this subject undoubtedly is min Holladay was in fact the real owner of that the record of a judgment or decree in the premises, and that Joseph Holladay was personam or quasi in rem can affect only par- but a mortgagee in possession. If, then, such ties and privies; that is, those who have the an adjudication would not have been binding right to adduce testimony or cross-examine upon her, certainly she cannot claim that the the witnesses introduced by the other side, defendant is bound by the decree as actually or who have a right to defend the action or rendered, in view of the rule that “nobody suit, or to appeal from the judgment or de. can take benefit by a verdict who had not cree, or those who claim by mutual succes- been prejudiced by it had it gone contrary." sion or relationship to the same rights of It is argued for the plaintiff that the decree property or subject-matter. All other per- is admissible as a link in the chain of defendsons are strangers, and the judgment is not ant's title, and to show the character of his binding upon them. Starkie, Ev. (10th Ed.) possession. But he is claiming by adverse 318; Black, Judgm. $$ 600, 794; 1 Herm. possession alone, and not under a paper title; Estop. $ 299; Freem. Judgm. g 154; Freeman nor is his possession under or by virtue of the v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165. It decree, and, besides, the record shows that is apparent that, under this rule, the decree it was not offered for any such purpose, but in question was not admissible in evidence for the declared object "of showing that Bento establish Benjamin's Holladay's interest jamin Holladay was the real owner of the in the property, nor was it conclusive upon property in dispute so far as the title stood in the parties to this action. The plaintiff was the Holladays up to 1889.” For this purpose an entire stranger to the proceedings. She alone it was offered and used on the trial. In bad no right to appear in the suit or con- other words, it was offered and admitted as 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 givposed existence of which it is based. Under ing it effect as evidence to establish Benno rule of law of which we have knowledge jamin Holladay'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. 268, 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 posrendered, 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 limin 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. $S 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 v. 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 had 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 knowlant 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 claimHolladay, 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 plaintiff 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.
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, mort. of 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 mort. lief on the part of the claimant that his title gaged property in satisfaction of the mort. is 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. $8224, 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 persous 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 tate owned 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 a 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
A. Moore, become of age, they shall each rethem as to an outstanding legal estate purchased by 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 Sep
Appeal 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