Mitchell v. Campbell

24 P. 455, 19 Or. 198, 1890 Ore. LEXIS 34

• Court: Oregon Supreme Court
• Decided: May 7, 1890
• Status: Published

Opinion

Thayer, C. J.,

delivered the opinion of the court.

The issues in this case are too prolix. A large amount of the labor bestowed thereon was unnecessary and served no purpose except to obscure the real points of contention between the parties. In an action to recover the possession of real property under the Code of this State, the plaintiff is required to set forth the nature of his estate in the property, whether in fee, for life, or a term of years, and for whose life and 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 in such sum as may be therein claimed. The complaint must describe the property with sufficient certainty to enable the possession thereof to be delivered in case a recovery be had. The defendant may controvert the allegations of the complaint, and if he claim that the property belongs to him or to another, or claim any license or right to the possession thereof, he must plead it in his answer, and set forth the nature and duration of such estate, or license or right to the possession, with the certainty and particularity required in the complaint. This, substantially, is all that is required to be pleaded in that character of actions; all other matters being redundant and not necessary to be spread upon the records.

Counsel for the appellant have urged a number of points herein as error and have cited a great many authorities to sustain them; but it seems to me that the main question in the case to be tried, and which was tried in the circuit court, was whether or not the appellant’s action was barred by the statute of limitations. The respondent’s counsel does not, so far as I can discover, contend that the probate proceedings under which the property was sold at administrator’s sale were strictly in conformity with the statute, although he insists that the sale was made in good faith, and that the funds realized therefrom were honestly applied in the payment of debts existing against the estate of the intestate; and that the irregularities and defects in said proceedings were of such a character as would require the ■ courts, under the curative statutes of 1874 and 1878, to disregard them. The effect of these statutes upon sales of real property by administrators under irregular proceedings, has not been determined by any adjudication of this court which has come to my knowledge; but it seems tome that they have an important bearing upon the decisions regarding the validity of such sales when they are made in good faith for the purpose of paying legal claims against the estate administered upon. No one will contend that the legislature has power to make valid that which inherently is a nullity, or render a sale efficacious when made in a manner which it had no power to authorize. Where, however, the sale is void merely in consequence of a failure of those having the direction of it to observe conditions imposed by the legislature itself, and which it could have dispensed with in the beginning and the sale have been valid, I do not see why it could not by a retroactive act cure the defect.

Section 8 of the act of 1878, entitled, “An act to cure defects in deeds heretofore made to real property that are defective in execution or acknowledgment, and to cure defects in judicial sales of real property, and sales of lands by executors and administrators,” provides as follows: “All sales by executors and administrators of their decedents’ real property in this State to purchasers for a valuable consideration which has been paid by such purchasers to such executors or administrators or their successors in good faith, and such sales shall not have been set aside by the county or probate court, but shall have been confirmed or acquiesced in by such county or probate court, shall be sufficient to sustain an executor’s or administrator’s deed to such purchaser for such real property; and in case such deed shall not have been given, shall entitle such purchaser to such deed, and such deed shall be sufficient to such purchaser,” to entitle such purchaser* to “all the title that such decedent had in said real prop-' erty; and all irregularities in obtaining the order of the court for such sale, and all irregularities in making or conducting the same by such executor or administrator, shall be disregarded.” And section 1 of the act of 1874, entitled, “An act for the relief of purchasers of real estate at sales made by administrators or executors,” provides: “When any real estate has been heretofore, or shall be hereafter, sold by any executor or administrator, under or by virtue of any license or order of any county court in this State, and said sale shall have been approved by said county court, and the pur» ■ chaser shall have paid the purchase money for the same, and said sale shall have been made in good faith in order to .provide for payment of the claims against said estate, and the executor or administrator shall have failed or neglected to make or execute any deed conveying such real estate to such purchaser, or if from mistake or omission in said deed, or defect in its execution, the same shall be inoperative, and the period of five years shall have elapsed after the making of such a sale, then, in such case, all such sales shall be and are hereby confirmed and approved, notwithstanding any irregularities or informal-ities in the proceedings prior to said sale.”

These acts, according to my view, are wholesome regulations of law, and the heirs to the property sold have no grounds for complaint on account of the enforcement of their provisions. The title of the.heirs to the property is subject to the paramount right of the government to direct its disposition, if necessary, for the purpose of liquidating existing claims against the estate of the decedent. The heirs’ title vests in them by operation of law,but is subject to such right of disposition. If, therefore, the property is sold . under an order of the probate court, by a duly-appointed and qualified executor or administrator, for the purposes mentioned, and a valuable consideration has been paid therefor by the purchaser in good faith, the heirs are not deprived of any vested right, although the conditions upon which the general statute authorized the sale to be made were not strictly complied with. Under the general statute the executor or administrator, in order to obtain a license to sell real property belonging to the estate of the decedent, must file a petition containing certain facts. The probate court must thereupon issue a citation to the heirs to show cause why the property should not be sold to pay claims against the estate, which must be returned with proof that it had been served in the manner prescribed by statute.

In proceedings of that character, a defect in the petition, citation or in the proof of the service of the citation, will, under the general statute, render the sale a nullity. And although an order were made in due form to sell the property, and it were sold for its full value by the executor or administrator, and the proceeds were received by him and applied in good faith to the payment of the debts against the estate, which are charged by law upon the property, yet the heirs could reclaim it freed from such charge. For the purposes, therefore, of preventing such flagrant injustice, the said curative acts were passed. And it cannot be maintained that they were adopted in order to obviate the effect of mere informalities. The legislature, for the purpose of preserving to the heirs their inheritance, provided that certain prerequisites should be observed as a condition to the right of the representative to legally sell it. The effect of the said provision was, that a sale made without a compliance with such prerequisites was void, and in order to prevent such consequence in a certain class of cases, the said curative statutes were adopted. Their object evidently was to render valid sales made under the circumstances specified in the sections of said acts above set out, which would otherwise have been void. It was to prevent injustice, which is ample apology for upholding that character of legislation. The view I have endeavored to indicate herein is much better expressed in a note by Mr. Brightly appended to the decision in the case of Wilkinson v. Leland, 2 Peters, 627, as follows: “The legislature has power to validate a prior acknowledgment of a deed or mortgage: Journey v. Gibson, 56 Penn. St. 57, or to validate a void contract, Watson v. Mercer, 8 Pet. 88, such as the prior conveyance of a married woman. Jones' Appeal, 57 Penn. St. 369. To the objection that such laws violate vested rights of property, it has been forcibly answered that there can be no vested right to do wrong. Claims contrary to justice and equity cannot be regarded as of that character; consent to remedy the wrong is to be presumed. The only right taken away is the right dishonestly to repudiate an honest contract or conveyance to the injury of the other party. Even where no remedy could be bad in tbe courts, the vested right is generally unattended with the slightest equity. Randall v. Kreiger, 23 Wall. 149.”

If the construction of the two acts suggested, which is obviously in accordance with the intention of the legislature, be correct, and the power to provide that a sale by an executor or administrator of the real property of the decedent shall be regarded valid, which under the existing law would have been deemed a nullity, reside in that body, then all the principal exceptions relied on by the appellant’s counsel, aside from those relating to the statute of limitations, may easily be disposed of. That the power to validate a sale in such cases which in legal effect was void is within the province of legislative functions, is fully sustained by Wilkinson v. Leland, supra. Judge Story, who delivered the opinion of the court in that case, at page 658, says: ‘‘The question then arises whether the act of 1792” — referring to an act of the legislature of Rhode Island — “involves any such exercise of power” — to divest the vested rights of property, and transfer them without the assent of the parties. “It is admitted that the title of an heir by descent, in the real estate of his ancestor, and of a devisee in an estate unconditionally devised to him, is, upon the death of the party under whom he claimed, immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens which have been created by the party in his life-time, or-by the law at his decease. It is not an unqualified, though it be a vested, interest, and it confers no title, except to what remains after every such lien is discharged. In the present case, the devisee under the will of Jonathan Jenckes, without doubt, took a vested estate in fee in the land in Rhode Island. But it was an estate still subject to all the qualifications and liens which the laws of that State annexed to those lands. It is not sufficient to entitle the heirs of the devisee now to recover, to establish the fact that the estate so vested has been divested; but that it has been divested in a manner inconsistent with, the principles of law.” Again, at pp. 660, 661, he says: “What then are the objections to the act of 1792? First, it is said, that it divests vested rights of property. But it has been already shown that it divests no such rights, except in favor of existing liens of paramount obligation; and that the estate was vested in the devisee expressly subject to such rights. Then, again, it is said to be an act of judicial authority, which the legislature was not competent to exercise at all, or if it could exercise it, it could be only after due notice to all the parties in interest, and a hearing and decree. We do not think that the act is to be considered as a judicial act; but as an exercise of legislation. It purports to be a legislative resolution, and not a decree. As to notice, if it were necessary (and it certainly would be wise and convenient to give notice where extraordinary efforts of legislation are resorted to which touch private rights), it might well. be presumed, after the lapse of more than thirty years, and the acquiescence of the parties for the same period, that such notice was actually given. But by the generad laws of Rhode Island upon this subject, no notice is required to be or is, in practice, given to heirs or devisees, in cases of sales of this nature; and it would be strange if the legislature might not do, without notice, the same act which it would delegate authority to another to do without notice. If the legislature had authorized a future sale by the executrix for the payment of debts, it is not easy to perceive any sound objection to it. There is nothing in the nature of the act which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate instead of tb e legislature itself. It is remedial in its nature to give effect to existing rights.

‘ ‘But it is said that this is a retrospective act, which gives validity to a void transaction. Admitting that it does so, still it does not follow that it may not be within the scope of the legislative authority in a government like that of Rhode Island, if it does not divest the settled rights of property. A sale had 'already been made by the execu-tris under a void authority, but in entire good faith (for it is not attempted to be impeached for fraud), and the proceeds, constituting a fund for the payment of creditors, were ready to be' distributed as soon as the sale was made effectual to pass the title. It is but common justice to presume that the legislature was satisfied that the sale was bona fide and for the full value of the estate. No creditors have ever attempted to disturb it. The sale, then, was ratified by the legislature, not to’ destroy existing rights, but to effectuate them, and in a manner beneficial to the parties. We cannot say that this is an excess of legislative power, unless we are prepared to say that in a State not having a written constitution, acts of legislation having a retrospective operation are void as to all persons not assenting thereto, even though they may be for beneficial purposes, and to enforce existing rights. We think that this cannot be assumed as a general principle by courts of justice. The present case is not so strong in its circumstances as that of Calder v. Bull, 3 Dall. 386, or Rice v. Parkman, 16 Mass. 326, in both of which the resolves of the legislature were held to be constitutional. ”

Whether the sale of the property in controversy by the administrator to the said F. T. Dick was made under circumstances that would bring the transaction within the provisions of said two acts, was a question of fact proper to be submitted to the jury; and they may be presumed to have found by their verdict that the sale was made under such circumstances. And the appellant’s counsel do not appear to claim that the proofs in the case were not sufficient to warrant the jury in so finding. Said counsel do, however, claim that the petition for the order to sell and the citation to the heirs were defective; but that, in view of the said curative acts, would not necessarily render the sale void. They, however, contend that the acts do not • cure jurisdictional defects, and cite, among other authorities, the language of Mr. Cooley upon the subject in his work on Const. Dim. p. 457, 5th Ed., where hesays: “A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden.” But the learned author did not mean by this that defects arising from a failure to set forth the necessary facts prescribed by statute to confer jurisdiction upon a court in regard to a particular matter, could not be cured by subsequent legislation, where the court had general jurisdiction of the subject. He says at page 458, same work: “The rule applicable to cases of this description is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense' with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law. ” Also at page 471: “But the healing statute must in all cases be confined to validating acts which the legislature might previously have authorized. It cannot make good retrospectively acts or contracts which it had and could have no power to permit or sanction in advance. ” This last clause indicates very clearly what the author did mean by “curing defects in legal proceedings where they do not extend to matters of jurisdiction.” He evidently meant matters not within the jurisdiction of the legislature. That body could not eure a defect arising from a failure to serve process in an action or suit in accordance with some prescribed mode, as it has no power to authorize an adjudication against the party to the aetion or suit without such service being made.. A failure to acquire original jurisdiction over the person or property of a defendant in any case would doubtless come under the same rule. But where a court obtains jurisdiction over a special subject matter given to it by law, as probate courts do over the estates of deceased persons after an executor or administrator of tbe estate has been duly appointed and qualified, and the court has proceeded to exercise its jurisdiction in regard to a matter connected therewith without having complied with the mode which the legislature had prescribed, but which it could have dispensed with, then, the proceeding of the court, although irregular and defective, could be confirmed by subsequent legislation when justice would thereby be promoted.

The appellant’s counsel also contend that the circuit court committed error in refusing to give the following instruction: “If you find from the evidence that the defendant entered the premises without title, the fact that defendant has acquired by adverse possession, the title of the tenants in common who were not made parties to this action, does not preclude the plaintiff from recovering the whole of the premises.” Said counsel attempt to sustain their contention that said instruction should have been given, upon the authority of Chipman v. Hastings, 50 Cal. 310, which seems to be in point. The supreme court of California held in that case that the question as to whether the title of the tenants in common, who were not parties, had been defeated by such an adverse possession on the part of the defendant, could be determined only in an action to which they were parties. The view taken by that court must have been that the legal title to the property was not acquired by adverse possession, that such possession would merely operate as a bar to the right of entry of the owner of the fee. Such, however, is not the rule in this State. This court held in Parker v. Metzger, 12 Or. 409, that adverse possession of real estate for the period prescribed by the statute of limitations vested a perfect title in the possessor as against the former holder of the title and all the world, and that he was entitled to all the remedies which were incident to possession under a written title. According to that view the respondent’s tenure in the property was as certain under the proof of an adverse holding during the period prescribed by the statute of limitations as it would have been under an absolute deed of conveyance from sucb tenants in common.

The point claimed by appellant’s counsel that the act of the legislative assembly of the State, approved October 17, 1878, purporting to be an amendment to sections 4 and 17 of chapter one of the Code of Civil Procedure, was void for the reasons stated in the appellant’s reply, cannot, at this late date, be entertained. Said act had stood upon the statute book for nearly ten years, and beep recognized and acted upon by the courts in a number of cases without being questioned. Under such circumstances it should be presumed to have been adopted in conformity with the requirements of the constitution. If the matter had been brought to the attention of the court soon after the act was passed it would have been proper to have inquired as to whether the bill was read in the respective houses the number of times, and in the manner prescribed by that instrument, and as to whether proposed amendments to it in one of the houses had been regularly concurred in by the other; but, after having been acquiesced in for so great a length of time, it would be highly detrimental to public interest to determine it invalid in consequence of an informality in its enactment, when it is evidently the express will of the legislature. The effect of the act was to change the time for the commencement of an action to recover the'possession of real property from twenty years to ten years, which has always been regarded by the community as a wholesome regulation, and I do not think that it would be either just or politic to decide it a nullity at this late date, even if the journals of the two houses of the legislative assembly do fail to show the facts claimed by appellant’s counsel.

But the act of 1878, in prescribing the period of ten years in which an action shall be brought to recover real property, provides, among other things, that if any person entitled to bring the action be, at the time the cause of action acerued, a married woman, the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by such disability, nor be extended longer than one year after it ceases. The appellant herein being a married woman at the time her alleged cause of action for the recovery of the ninth interest in the real property in question inherited by her arose, was entitled to the full period of fifteen years in which to commence her action to recover such interest, while she was only entitled to the period of ten years in which to commence her action for the recovery of the other interests conveyed to her, assuming what seems to be conceded by her counsel, that the statute had begun to run against the respective owners of those interests at the time they were so conveyed. The disability of the appellant was set forth in her reply to the defense of the statute of limitations contained in the answer, to which the respondent filed a demurrer and the court sustained it, and subsequently instructed the jury that ten years’ adverse possession by the respondent was sufficient to bar her right of recovery, without making any exception in favor of the interest inherited by her. This was error. The holding should have been that the appellant was entitled to the period of fifteen years in which to commence the action to recover that particular interest. I doubt very much whether the error, as a matter of fact, prejudiced the appellant’s case, as the jury very probably found that the sale of the property by the administrator under the curative acts was valid; but the appellant was entitled to the benefit of the law and may have been prejudiced by its having been withheld from her.

Another contention of appellant’s counsel is, that the statute does not begin to run in such a case until the administration of the estate has fully terminated. I have no doubt but that the statute does not begin to run while the property is subject to the possession of the administrator for the purposes of being applied to the satisfaction of claims against the estate, as such possession is not inconsistent with the title of the heir.

Where, however, the administrator has sold the property nnder an order of the probate court, the sale been confirmed, and a deed executed to the purchaser, as was done in this case, the matter stands differently. There the sale and possession of the purchaser under it operate as dis-seizen of the heir, and the right claimed by the purchaser under the sale is in hostility to his title. And if such possession be open, notorious and continuous, under a claim of ownership of the property, during the period prescribed by the statute of limitations applicable in such cases, it will ripen into a valid title, although it were wrongful in the outset.

I am unable to discover any error in the record herein aside from the one suggested. The judgment appealed from should therefore be affirmed except so far as it affects the ninth interest claimed by the appellant in the property as heir at law of P. M. Curry, deceased; but as to •that interest it should be reversed and the appellant have a new trial concerning her right to recover it in view of the law that her claim thereto, if she has any, is only barred by an adverse possession for the period of fifteen years; and such would be the order of the court if it had the legal right to make it. The court, however, is compelled to reverse the judgment in toto, and remand the cause to the circuit court for a new trial in accordance with the principles of this decision. Such will therefore be the order.