2. Acts of 1878 and 1880, removing all legal disabilities of married women, did not affect the provision giving a married woman 15 instead of 10 years in which to sue for land.

3. A mere servant or employé of an adverse claimant, whose possession is merely temporary, and who has no interest therein, is not a parry in the actual possession at the time, within the meaning of 1 Hill's Ann. Laws, § 316, requir ing an action to recover land to be commenced against such a party; and an action against and service upon such servant does not interrupt the running of limitations.

4. On an issue as to defendant's adverse possession, where there was testimony that defendant knew of plaintiff's claim of title, the court having erroneously stated that an adverse claim under color of title must be made in good faith to ripen into a perfect title, it was error to refuse to correct the error by charging that the fact that one claiming under color of title knew that he was wrong does not affect the adverse character of his holding.

5. Where the testimony is conflicting as to whether the possession of one claiming under a will was adverse to the heirs, or was in recognition of their title as cotenants, an instruction assuming that limitations would not run in favor of her grantee until he recorded his deed and entered into actual possession is erroneous.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by Mary E. Lattie-Morrison against Joseph Holladay and others to recover possession of the undivided one-third interest of certain lands. From a judgment for plaintiff and the refusal of a new trial, defendant Holladay appeals. Reversed.

This is an action brought against Joseph Holladay, C. B. Bellinger, and W. A. Malin to recover possession of an undivided onethird of the donation land claim of Elizabeth Lattie in Clatsop county, Or. The defendants Bellinger and Malin, by their answers, denied being in possession of the property, and disclaimed any interest in or claim there to, and the action was subsequently dismissed as to them. The defendant Holladay denied all the allegations of the complaint, except his possession, and set up as a defense the statute of limitations, and upon this issue alone the cause was tried. The facts are that on May 15, 1868, Elizabeth Lattie died seised and possessed of the land in question, leaving as her heirs the plaintiff and three other children, to wit, Ellen Cloutrie, John Lattie, and William Lattie, and a will in which she purported to devise the whole of her property to her daughter Ellen. Subsequently, John Lattie died, intestate, leaving, as his heirs, his surviving brother and two sisters; and, by reason thereof and the invalidity of the will as to plaintiff, she now claims to be, and is, unless barred by the statute of limitations, the owner and entitled to the possession of an undivided interest in the premises in controversy. After the death of Mrs. Lattie, her will was regularly admitted to probate, the estate duly administered upon, and on the 2d of September, 1872, the administrator was discharged, and the property turned over to the possession of Ellen, the devisee named in the will, who remained in possession thereof

until she sold to the defendant and his grantors, as hereinafter stated. On December 13, 1872, Mrs. Cloutrie and her husband sold and conveyed 25 acres of the claim, and on July 26, 1873, an additional 19 acres (which, together with the 25-acre tract, has since been known as the "Seaside Hotel Property"), to the Oregon Real-Estate Company, a corporation of which Benjamin Holladay was president. Immediately after the purchase, the real-estate company, through Benjamin Holladay, took possession and proceeded to improve the property by constructing thereon an hotel building and other valuable improvements to be used as a seaside summer resort, and remained in possession until December 29, 1875, when it was conveyed to the defendant Joseph Holladay, to whom the possession was delivered. On January 27, 1874, Mrs. Cloutrie mortgaged the remainder of the claim to Benjamin Holladay, to secure the payment of the sum of $4,000 and interest. This mortgage was subsequently assigned to the defendant, who foreclosed it, and advertised the property for sale, under the decree; whereupon Mrs. Cloutrie, in satisfaction thereof, conveyed to him, by deed dated June 25, 1877, and recorded on July 6, 1877, the whole of the donation claim of her mother, and a short time thereafter vacated the premises. The defendant gave evidence tending to show that he immediately took possession thereof, and continued in the open, exclusive, and adverse possession of the property conveyed by the deed of June 25, 1877, and the Seaside Hotel property, until November, 1883, when he surrendered possession to the receivers appointed in a suit brought against him by Benjamin Holladay; that the receivers remained in the exclusive and adverse possession of the property until the 18th day of July, 1889, when, by order of the court, it was again turned over to him, and he went into possession, claiming the same as owner, under and by virtue of a deed from George W. Weidler, trustee and receiver, made and delivered to him at that time. The trial resulted in a verdict and judgment in favor of the plaintiff for an undivided one-fourth interest in the donation claim of her mother, excepting the Seaside Hotel property, a 65-acre tract, and a 2-acre tract sold by Mrs. Lattie, to which neither party laid claim in this action. From such judgment the defendant appeals, assigning error in the admission of evidence and the giving and refusal of instructions.

C. H. Carey and F. J. Taylor, for appellant. C. W. Fulton, for respondent.

against her, and did nothing amounting to an ouster. The defendant, however, contended, notwithstanding this fact, if it was a fact, that he had been in the adverse possession, claiming as owner, under the deeds from Mrs. Cloutrie and the real-estate company, for more than the statutory time, and was therefore entitled to prevail in this action, independently of the acts or conduct of either Benjamin Holladay or Mrs. Cloutrie. To meet this contention, and to show that he was in possession up to 1889, as a mortgagee only, the plaintiff offered, and the court admitted, in evidence, a decree of the circuit court of Multnomah county of date July 12, 1886, in a suit between Benjamin Holladay and the defendant, in which it was found, adjudged, and decreed that the defendant held such property as the mortgagee of Benjamin Holladay only, and directing that redemption be made within 90 days, or, in default thereof, that the property be sold to satisfy the defendant's claim thereon. This decree was not only admitted in evidence, but the court instructed the jury that it conclusively established the fact that Benjamin Holladay was the real owner of the property in controversy, and the defendant but a mortgagee in possession, and therefore his rights were to be ascertained and determined the same as if Benjamin Holladay had remained in possession of the property, and had been holding in recognition of plaintiff's title. The possession of the defendant or the receivers appointed in the suit of Holladay v. Holladay should not be regarded as adverse to plaintiff until after the judicial sale in 1889.

The admission of the decree in evidence, and the effect given thereto by the court, constitute the first and an important assignment of error in this case. The objection to its admission is that, as to the parties to this action, it is res inter alios acta, and therefore not competent evidence. The fundamental rule on this subject undoubtedly is that the record of a judgment or decree in personam or quasi in rem can affect only parties and privies; that is, those who have the right to adduce testimony or cross-examine the witnesses introduced by the other side, or who have a right to defend the action or suit, or to appeal from the judgment or decree, or those who claim by mutual succession or relationship to the same rights of property or subject-matter. All other persons are strangers, and the judgment is not binding upon them. Starkie, Ev. (10th Ed.) 318; Black, Judgm. §§ 600, 794; 1 Herm. Estop. § 299; Freem. Judgm. § 154; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165. It is apparent that, under this rule, the decree in question was not admissible in evidence to establish Benjamin's Holladay's interest in the property, nor was it conclusive upon the parties to this action. The plaintiff was an entire stranger to the proceedings. She had no right to appear in the suit or con

trol the proceedings or to appeal therefrom, nor is she claiming under or through either of the parties thereto. Whatever right she has in the property in controversy accrued and was fixed long prior to the commencement of the suit of Holladay v. Holladay, or the rendition of the decree therein, and is entirely independent of any interest of the Holladays. Nor is it sufficient that the defendant here is a party to both proceedings. Estoppels must be mutual, and, unless the decree is binding upon both parties, it is binding upon neither. "No. person," says Mr. Freeman, "can bind another by any adjudication, who was not himself exposed to the perils of being bound in a like manner had the judgment resulted the other way." Freem. Judgm. § 154. And Mr. Justice Ruffin says in Redmond v. Coffin, 2 Dev. Eq. (N. C.) 443: "A decree in favor of one party cannot protect another, who was not a party, unless he be a privy. And, indeed, a stranger thus introduced cannot use the decree at all as such, because it cannot be used against him." And Gibson, C. J., says: "That the record of a judgment can affect only parties and privies, and that no one shall have advantage from it who would not have been prejudiced by it, are principles with which every lawyer is supposed to be familiar." Shulze's Appeal, 1 Pa. St. 251. See, also, 1 Herm. Estop. §§ 135, 136; Freem. Judgm. § 159; Black, Judgm. § 518; Carr v. Acraman, 11 Exch. 568; Henry v. Woods, 77 Mo. 277; Chamberlain v. Carlisle, 26 N. H. 540; Winston v. Starke, 12 Grat. 317.

Now, if, by the decree in Holladay v. Holladay, it had been adjudged that the defendant in this action was the owner in fee of the premises, and that Benjamin Holladay had no interest therein, it could not for a moment be successfully contended that such adjudication would be binding upon the plaintiff, and prevent her from showing by competent evidence, if she could, that Benjamin Holladay was in fact the real owner of the premises, and that Joseph Holladay was but a mortgagee in possession. If, then, such an adjudication would not have been binding upon her, certainly she cannot claim that the defendant is bound by the decree as actually rendered, in view of the rule that "nobody can take benefit by a verdict who had not been prejudiced by it had it gone contrary.” It is argued for the plaintiff that the decree is admissible as a link in the chain of defendant's title, and to show the character of his possession. But he is claiming by adverse possession alone, and not under a paper title; nor is his possession under or by virtue of the decree, and, besides, the record shows that it was not offered for any such purpose, but for the declared object "of showing that Benjamin Holladay was the real owner of the property in dispute so far as the title stood in the Holladays up to 1889." For this purpose alone it was offered and used on the trial. In other words, it was offered and admitted as

conclusive proof of the statements contained in the decree and of the facts upon the supposed existence of which it is based. Under no rule of law of which we have knowledge was it admissible for that purpose. A judgment is admissible in an action between strangers to prove the fact of its own rendition and the legal consequences which result from it, or when it forms a link in the chain of title of the party offering it, or when it characterizes the possession of one who claims under it, and perhaps in some other instances; but it is not admissible as proof of the statements contained therein, or the facts upon which the judgment was founded. Freem. Judgm. § 416; Black, Judgm. § 604. Even judgments in rem, which are generally said to be conclusive upon the whole world, are not always admissible as proof of the facts upon which they are based, except as against parties who were entitled to be heard before they were rendered. Bigelow, Estop. 47; Brigham v. Fayerweather, 140 Mass. 411, 5 N. E. 265; De Mora v. Concha, 29 Ch. Div. 268. In such case it is said no one but parties or privies is bound by the findings of fact contained in a judgment or decree, although they may be bound to admit the title or status which it establishes. The general principle is thus stated in Steph. Dig. Ev. art. 42: "Statements contained in judgments as to the facts upon which the judgment is based are deemed to be irrelevant as between strangers, or as between a party or privy and a stranger, except in the case of judgments of courts of admiralty condemning a ship as prize." The case of Buckingham v. Hanna, 2 Ohio St. 551, cited and mainly relied upon by plaintiff, does not seem to us to be in point here, because the decree offered and admitted in that case operated to transfer the title of the property in controversy from one of the parties to the other, and was therefore admissible in evidence as constituting one of the muniments of title the same as a deed or other conveyance would have been. But the decree in the suit of Holladay v. Holladay did not transfer or purport to transfer title, but only to establish, as between the parties, the character in which Joseph Holladay held the title; and while it may have been admissible as proof of the authority under which the receiver executed the deed to Joseph Holladay in 1889, if it was made in pursuance of this decree, and if the question was material, yet it was not admissible as evidence to prove the facts upon which it was based. It was only the fact, if material at all, that such a decree had been rendered, and the legal consequences thereof, which could be thus proved. It could not be used as a medium of proving the matters of fact recited in it, or to charge the defendant in this action by reason of any fact found or proven in the suit in which it was rendered. 1 Whart. Ev. §§ 821, 822; 1 Greenl. Ev. §§ 538, 539; 2 Phil. Ev. p. 6, and notes; Starkie, Ev. (10th Ed.) *323; Key v. Dent, 14 Md. 86. We think, therefore, the court was in er

ror in admitting the decree in evidence for the purpose for which it was offered and in giving it effect as evidence to establish Benjamin Holladay's ownership of the land.

It is next contended that the court erred in instructing the jury that the plaintiff, being a married woman at the time her right of action accrued, had 15 years thereafter in which to bring her action, and, in refusing to instruct as requested by the defendant, that her right of action was barred in 10 years. In Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455, and in Stubblefield v. Menzies, 8 Sawy. 41, 11 Fed. 268, it was held that, under the statute, a married woman has 15 years in which to bring an action to recover real property, and we regard this as a correct interpretation of the statute. The exemption of a married woman from the operation of the 10-years statute of limitations, and allowing her 5 years additional time, is founded upon her marital relation, and not upon the idea that such relation prevented her from suing in her own name. As said by Mr. Justice Deady: "It was because of her status as a married woman, which was supposed to disqualify or disable her from asserting her rights, and not for the reason that she therefore might not be permitted to sue alone." Stubblefield v. Menzies, supra. If the married woman's acts of 1878 and 1880 removed all legal disabilities of a married woman, as claimed by the defendant, they did not change her status or remove her marital disability, and so did not repeal or modify the statute of limitations. In the opinion of the legislature, the status of a married woman is a sufficient reason for allowing her not to exceed five years in which to bring the action in addition to the time allowed persons not laboring under such disability; and this additional time is allowed because of her coverture, and not because she is disabled in fact from prosecuting the action.

It is next claimed that the court erred in instructing the jury that the delivery of the summons to the sheriff of Clatsop county, with intent that it should be served upon the defendant Malin, followed by service upon him seven days thereafter, stopped the running of the statute of limitations. The correctness of this ruling depends upon whether Malin was in possession of the property in controversy at the time the action was commenced, within the meaning of the statute which requires an action for the recovery of real property to be commenced against the party in the actual possession of the premises at the time, if they are in the pos session of any one. 1 Hill's Ann. Laws Or § 316. An attempt to commence an action is made equivalent to the commencement thereof, within the meaning of the statute of limitations, when the complaint is filed and the summons delivered, with the intent that it shall be actually served, to the sheriff of the county in which the defendants or one of them usually resides, provided the service is actually made or the first publication had

within 60 days (Hill's Ann. Laws, § 15); but this evidently contemplates that the defendant shall be not merely a party to the record, but a proper party to the action; and, unless Malin was such a party, the fact of naming him in the pleadings as such will not avail the plaintiff for any purpose. The facts about which there is no dispute are that Malin, who resided in Portland, was temporarily in possession of the property in controversy at the time the action was commenced, as the mere servant or employé of Holladay, having been sent down a few days before to prepare the Seaside House for the reception of guests, and to act as manager thereof during the season; and that he claimed no interest in or right to the possession of the premises in any other capacity than as a mere hired servant or employé, subject to the orders and control of his employer. Under such circumstances, it seems to us manifest that his possession was that of his employer, and that he was not a proper party to the action to recover possession of the premises. The person against whom the statute requires the action to be brought must be more than a mere agent or servant, claiming for himself no interest in the premises, nor right to the possession or control thereof; but it must be some person in possession, exercising acts of ownership, and claiming title or right to the possession in himself. A person may be in possession of land either in person or by some agent or servant acting under his direction and control; and in the latter case the possession of the agent or servant will be the possession of the employer, and he is the party against whom the action must be commenced, and not the agent or servant. "A mere servant or employé," says Chief Justice Wallace, "claiming for himself no interest in the premises, nor any right to their possession, but acting under the control of another, and only in that manner occupying and being personally upon the premises, cannot be sued in an action of ejectment brought to recover them, for such facts and circumstances only go to show that the employer, and not the servant or employé, is the party in possession, and, of course, answerable in that action." Polack v. Mansfield, 44 Cal. 39; 1 Waite, Act. & Def. 81; Hawkins v. Reichert, 28 Cal. 534; Chiniquy v. Catholic Bishop, 41 Ill. 148; People v. Ambrecht, 11 Abb. Pr. 97; Redfield v. Railroad Co., 25 Barb. 54. We think, therefore, the court erred in holding that the action was commenced when the complaint was filed and the summons served on Malin.

In the course of the trial, the court, in the presence and hearing of the jury, stated, in substance, that an adverse claim under color of title, to ripen into a perfect title, must be made in good faith, and with an honest belief on the part of the claimant that his title is good. The testimony of plaintiff tended to show that Benjamin Holladay, during the

time defendant claims he was holding adverse possession of the property, had knowledge and was advised of plaintiff's claim and her contention that the will under which Mrs. Cloutrie held was invalid as to her. In view of this testimony, and to remove any erroneous impression the jury may have received from the statement of the court, the defendant, at the proper time, requested, in writing, the following instruction, which the court refused to give, either in substance or as requested: "The fact that a person claiming under color of title knew he was wrong does not affect the adverse character of his holding possession. A man may take and occupy under a will or deed which purports to give him title to the land, and knowing that his title is bad, and that another has an outstanding interest in the land, yet his occupancy may be adverse; and so, though Ben. Holladay may have known of the right of plaintiff, and have acted in bad faith in excluding her, yet, if his possession under his deeds had the necessary elements of an adverse occupancy in other respects, his knowledge that he was wrong would not affect the adverse character of his occupancy." This instruction should have been given. Counsel for plaintiff frankly admitted at the argument that the court was in error in stating that an adverse holding under color of title must be with an honest belief on the part of the claimant that his title is good. This being so, the defendant was entitled, in view of the testimony, to have any erroneous impression the jury may have received from the remark of the court removed by a proper instruction, and for that purpose the instruction requested or a similar one should have been given.

The court also instructed the jury that the statute of limitations would not commence to run as to the property conveyed by Mrs. Cloutrie to the defendant in June, 1877, until the deed was recorded and the defendant entered into the actual possession of the property conveyed. This instruction wholly ignored the contention of the defendant that, at the time the conveyance was made, Mrs. Cloutrie was, and for a long time prior thereto had been, in possession, holding adversely to the plaintiff, and therefore the statute commenced to run from the time the plaintiff was ousted by her, and not from the entry of the defendant. Mrs. Cloutrie entered into the possession of that portion of the donation land claim of her mother in controversy in this suit in 1872, under a will regular in form, purporting to devise the whole of it to her, and thereafter remained in possession and treated the property as her own, sold and conveyed by warranty deeds the whole of definitely described portions thereof, mortgaged the remainder to secure the payment of her debts, and finally conveyed the mortgaged property in satisfaction of the mortgage to the defendant, and delivered possession to him. These were circumstances of

more or less importance indicating the assertion of a claim of title and possession inconsistent with and hostile to the title of the plaintiff as a tenant in common, and was therefore evidence tending to show, and from which the jury would have been justified in finding, an ouster and adverse holding by Mrs. Cloutrie. Freem. Coten. §§ 224, 242; Lefavour v. Homan, 3 Allen, 354; Carpenter v. Thayer, 15 Vt. 552; Wright v. Kleyla (Ind. Sup.) 4 N. E. 16. And, while plaintiff gave testimony tending to show that Mrs. Cloutrie was holding in recognition of her title, the question of ouster ar adverse possession was, nevertheless, under the evidence, a question of fact for the determination of the jury; and the court was in error in assuming, as it necessarily did in the instruction complained of, that Mrs. Cloutrie's possession, up to the time of the conveyance to the defendant, was consistent with and in recognition of the plaintiff's title.

Judgment reversed, and new trial ordered.

(27 Or. 117)

MOORE et al. v. SIMONSON. (Supreme Court of Oregon. April 1, 1895.) LIFE TENANT-PURCHASE OF OUTSTANDING TITLE -CONSTRUCTIVE TRUST-IMPROVEMENTS

-WASTE-Set-Off.

1. An executrix and life tenant, in possession of lands of which her testator owned the equitable title, who buys in the outstanding legal title, supposing it to be necessary for the protection of the estate, paying therefor, out of her own moneys, a sum wholly disproportionate to the value of the land, holds the legal title so purchased in trust for the remainder-men.

2. The life tenant, upon being declared such trustee, is entitled to be reimbursed from the estate for the amount paid by her in buying in the title, and also for the sum paid for a street improvement constituting a betterment inuring to the benefit of the inheritance.

3. A life tenant under a will, who is declared to be a trustee for the remainder-men as to an outstanding legal estate purchased by her, is not entitled to reimbursement for the value of permanent improvements voluntarily made by her on the land.

4. In a suit by remainder-men under a will to have the life tenant declared a trustee for them as to an outstanding legal estate purchased by her, she cannot be made liable for waste, when there is no claim therefor under the pleadings, nor evidence showing her guilty of waste. Appeal from circuit court, Wasco county; W. L. Bradshaw, Judge.

Action by Sarah A. Moore and others against Anna Simonson, as executrix and life tenant of lands of which her testator owned the equitable title, to have a purchase by her of the outstanding legal title declared to be held by her in trust for all persons taking under the will. From a decree granting the relief prayed, but disallowing certain expenditures by the defendant for improvements, etc., both parties appeal. Modified.

The purpose of plaintiffs in this suit is to have defendant, Anna Simonson, who holds the legal title to the following described premises, to wit: "Beginning at the northwest corner of lot 12 in block 2, Bigelow's v.39p.no.10-70

addition to Dalles City, Wasco county, Oregon, and running thence in a southerly direction along Washington street 70 feet, thence in an easterly direction 100 feet, to the west line of lot 10 in said block 2, thence in a northerly direction 70 feet, along the west line of said lot 10, to the alley, and thence along said alley 100 feet, to the place of beginning, and being the northern 70x100 feet of lots 11 and 12 in said block 2,"-declared a trustee as to said premises for all persons taking and to take under the last will and testament of Jonas Whitney. The will, among other things, provides: "I then order and bequeath that Anna, my wife, in case she survives me, do have during her life all the rents and profits of the following real estate owned by me, viz.: [Here follows a description of the above and other lands]; and at her death all said land and personal property remaining shall go to and belong solely to my daughter, Sarah Moore, and the heirs of her body." A codicil thereafter executed makes the following provisions: "(1) That after the death of my wife, Anna Whitney, I request that the profits and income arising from my estate shall go to the equal education of the children of my only daughter, Sarah Moore, or so much thereof as may be required to educate them in the common and higher English branches. (2) That I request my said wife, Anna Whitney, shall during her lifetime appoint a suitable person to act as trustee, and to have the charge of my said estate after her death, and who shall be authorized to carry out the provisions of my last will and testament, including this codicil. (3) That I desire that if at any time after the death of my wife, Anna Whitney, my said daughter, Sarah Moore, should need any assistance from my said estate, I request and order that she shall be furnished from my said estate with sufficient means to enable her to live in a comfortable manner during her life. (4) That I desire and request that after the death of my said wife Anna Whitney, as the children of my daughter, Sarah A. Moore, become of age, they shall each receive their proportion of my said estate, share and share alike." The will was executed August 28, 1871, and the codicil September 19, 1876. The wife was named as executrix of the will. The testator died in October, 1876, and his widow, the defendant above named, was shortly afterwards, upon probate of the will, appointed executrix, and has never been discharged. The plaintiff Sarah A. Moore is the daughter of the testator, and plaintiff Anna Moore is the daughter of Sarah, who has seven other children now living, all of whom are minors, to wit, Homer W., Chauncey H., Nathaniel B., William A., Vivian E., Garfield, and Lena Moore. At the date of the death of the testator, he was the owner of the equitable title to the premises above described, through mesne conveyances from Winsor D. Bigelow, whose title was derived from the United States, un