Opinion by
Mr. Chief Justice McBride.
1. Whatever may be the facts as to the defendant having failed to complete the purchase of the property in dispute, and as to his having forfeited his right to complete the payments, we are confronted by the fact that after such alleged forfeiture, and after the defendant is alleged to have testified that he had no interest in the property, the plaintiff procured a deed conveying it to herself and to the defendant. The legal title, therefore, vested in both plaintiff and defendant, and ejectment will not lie against one holding the legal title: Swift v. Mulkey, 14 Or. 59 (12 Pac. 76).
2. The fact, if it be a fact, that defendant testified in another proceeding that he had no interest in the property cannot work an estoppel against him in asserting an after-acquired legal interest in the property in an 'action at law. Whether it would create an estoppel in equity we do not now decide. That plaintiff at least would have an equitable lien upon defendant’s interest in the property for the sums paid by her seems only [558]*558just; but these matters are of equitable cognizance, and cannot be considered in this action.
The cause will be remanded to the court below, with directions to dismiss the action without prejudice to any equitable proceeding plaintiff may see fit to institute. Remanded With Directions.
Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice Burnett concur. Mr. Justice McNary not sitting. Free access — add to your briefcase to read the full text and ask questions with AI