South Portland Land Co. v. Munger

54 P. 815, 36 Or. 457

• Court: Oregon Supreme Court
• Decided: February 19, 1900
• Status: Published

Opinions

Decided 24 October, 1898.

On Motion to Dismiss Appeal.

[54 Pac. 815.]

Mr. Chiep Justice Wolverton

delivered the opinion.

1. This cause comes here on appeal from a decree on the cross complaint of the South Portland Land Company, filed to enjoin the further prosecution of an action for the possession of real property, instituted by Abbie K. Munger against said land company, to correct an alleged mistake in a certain deed which plaintiff claims constitutes a link in its chain of title, and to quiet its title to the premises in dispute. Abbie K. Munger, in the complaint in said action, alleges that she is the owner in fee of an undivided one-half of such premises, and prays judgment accordingly. The cross complaint against her joins with her, as defendants, her husband and the heirs at law of Mary Austin, deceased, and their respective spouses. All the defendants so joined with her were directed to be brought in by order of the court. Unless plaintiff is entitled to the relief demanded, the pleadings show that Abbie K. Munger is the owner in fee of an undivided one-half, and the heirs of Mary Austin, eight in number, are each the owner of an undivided one-sixteenth of said premises. William Austin, Arthur Austin, Garfield Austin, and Olive Black (nee Austin), four of such defendants, made no appearance in the court below ; whereupon a guardian ad litem was appointed for Garfield Austin, he being a minor, and default entered against the other three. Mary Jackson (nee Austin), the owner of a one-sixteenth interest, filed a disclaimer. The other Austin heirs, three in number, to wit, Prank Austin, George Austin, and Harvey H. Austin, appeared, and with the defendant Abbie K. Munger contested the suit. The four defendants last named attempted to appeal to this court by serving a notice thereof upon the plaintiff only, which filed a motion to dismiss because the defendants William, Arthur, and Garfield Austin, Mary Jackson, and Olive Black were not served with notice, nor made parties to the appeal. This presents the sole question for our disposal. It is contended — First, that all the co-tenants are necessary parties to the proceeding put in motion by the cross complaint to reform the deed and quiet title, and that the suit could not proceed without them ; hence that this court could not acquire jurisdiction to hear and determine the controversy upon the appeal without the presence of all such parties ; and, second, that the decree entered below is joint, and hence that all parties to it must be joined in the appeal or served with notice before appellate jurisdiction could attach.

Mr. Justice Thayer, in Minter v. Durham, 13 Or. 470, 481 (11 Pac. 231), was very much in doubt whether two or more tenants in common had the right to join as complainants in an action of ejectment, and said, in speaking for the court, that “tenants in common hold by unity of possession, but they hold several and distinct freeholds, and, under our statute, the action to recover possession of real property includes a recovery of the estate which the demandant has in it, and which must be a legal estate.” The converse of the proposition is undoubtedly true,— that the several and distinct freeholds of each co-tenant may be the subject of a separate action for its recovery. As in law, so in equity ; to quiet title, the party claiming the whole may proceed separately against each person claiming to hold such an interest in the disputed premises ; and, while it may be convenient — perhaps proper— to join all the co-tenants claiming adversely, yet it is not indispensable or necessary that it should be done. And, even when joined, a decree against them must, from the very nature of the case, operate severally upon the distinct freehold interest of each co-tenant, and not jointly upon all. A judgment or decree may be joint in form, yet several in fact; and the rule seems to be that a party showing such a distinct and severable or separate interest may prosecute the appeal without joining co-parties below who are not identified or interdependent in interest; and the appellate tribunal may reverse or modify the judgment or decree without affecting the rights of the parties not before it: 2 Enc. Pl. & Prac. 186-188. Raney, J., in Guarantee Trust Co. v. Buddington, 23 Fla. 514 (2 South. 885), after alluding to the rule which requires the parties to a decree which is in law and in fact joint to unite in an appeal, says : ‘ ‘This rule, however, does not preclude any one party who may be aggrieved by the decree in his separate interest, or several parties who may be aggrieved as to their united interests, from taking, the former his individual appeal, and the latter their joint appeal, although there may be numerous other parties adjudged against by the same decree, but not united in interest with such individual or joint parties in the matter so decreed as to him or them.”

This doctrine does not dispense with the requirement that all parties who would be affected adversely, and whose interests would be in conflict with the reversal or modification of the decree appealed from or sought to be reviewed, must have legal notice of the appeal. If the relief sought by the appeal is of such a nature or character that it cannot be granted without adversely affecting parties not before it, either voluntarily as appellants or duly notified as respondents, then the court is without power or jurisdiction to proceed, and the appeal must be dismissed. But, if it appears that the special relief sought can be granted without affecting the interest of any party to the suit not a. party to the appeal, then the appellate jurisdiction is established, and the power to adjudicate concerning it is clear ; and this perhaps affords a reasonable and fair test of the joint or several character of the decree which it is sought to have reviewed. The parties not appearing in the case at bar, if the facts set forth in the cross bill are true, are tenants in common with the defendants appealing, each holding a several and distinct freehold interest in the premises in dispute. The decree of the court below has cut them off, and the plaintiff has obtained effectual relief against them. The other defendants, not being satisfied with the action of the court below, have appealed and served the plaintiff, an adverse party. They seek to have the decree reversed as to them, and this the court may do owing to the distinct and several interests of the appealing defendants, without in the least disturbing the interests of the nonappealing defendants, or affecting the decree below, which determines their adverse claim in favor of the plaintiff. This being so, it is clear the appeal should not be dismissed, and the motion is therefore denied. Motion Overruled.