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ANSWER OF DEFENDANT.-The defendant must deny the allegations of the complaint which he desires to controvert, and if he claims that the property belongs to him or another, or claims any license or right to the possession thereof, he must set forth the nature and duration of such estate, or license, or right, with the certainty and particularity required in the complaint. This is all that is required to be alleged in the answer: Mitchell v. Campbell, 19 Or. 202, 24 Pac. 455. If such estate or right is not pleaded, only such matter as controverts the plaintiff's allegations can be given in evidence under a general denial: Phillippi v. Thompson, 8 Or. 428. No estate or right in himself or another may be proved: Oregon Ry. & Nav. Co. v. Hertzberg, 26 Or. 223, 37 Pac. 1019; Hall v. Austin, 1 Deady, 104; Thornburn v. Doscher, 32 Fed. 811; Stark v. Starr, 1 Saw. 17. The particularity required in setting forth the nature of the estate or right is complied with if the defendant allege that the party is the sole or part owner in fee simple, or upon condition, or for life, or for years, as the case may be; or, in case of some special license or right, if he state succinctly the license or right to the possession as claimed with the necessary facts constituting it: Witherell v. Wiberg, Saw. 234. A detailed statement of matters which might be evidence in support of title in the defendant is not a proper or sufficient plea of such title, and will be stricken out on motion as redundant: Hall v. Austin, 1 Deady, 106; Fitch v. Cornell, 1 Saw. 158; Wythe v. Myers, 3 Saw. 598; Moore v. Frazier, 15 Or. 638, 16 Pac. 869. If the defendant make a sufficient allegation of ownership in himself, but couples such allegation with a statement of the grounds of his title, from which it does not appear that he is such owner, the whole matter will be stricken out on motion: Wythe v. Myers, 3 Saw. 597.


If no objection, however, is taken until

$ 330. Verdict, What it Shall Find.

after verdict, to an answer which pleads the evidence of the ultimate fact, instead of the ultimate fact as to title, such answer will be held sufficient, if the objection is raised in the supreme court for the first time: Hemenway v. Francis, 20 Or. 455, 26 Pac. 301. Under such circumstances, a specification in defendant's answer of the part for which he defends, which describes it as "about 120 acres of said land-the farming land on the north side of the county roadwith the buildings thereon," while it would be held insufficient on proper objection before trial, it will be presumed that proper evidence was introduced to identify it when objection is made in the supreme court for the first time: Hemenway v. Francis, 20 Or. 458, 26 Pac. 301.

Where both parties claim legal title, the defendant may assail the plaintiff's title on the ground either of notice or want of consideration, but in such case he must allege and prove the facts invalidating such title: McIntyre v. Kamm, 12 Or. 253, 7 Pac. 27. A plea stating that the defendant is in possession as assignee of an unsatisfied mortgage, but which does not allege that he entered with the assent of the mortgagor, is frivolous: Witherell v. Wiberg, 4 Saw. 234.

An equitable title is no defense to an action for possession by the holder of the legal title: Stark v. Starr, 1 Saw. 15; Hall v. Austin, 1 Deady, 104; and matters constituting an equitable estoppel are not available as a defense: Newby v. Rowland, 11 Or. 133, 1 Pac. 708.

Cotenants can not join as plaintiffs in an action of ejectment; but a defendant waives the objection by answering over: Minter v. Durham. 13 Or. 481, 11 Pac. 231.

The defendant may plead that he is owner in fee of the premises, and also that the ownership is in some person other than himself or the plaintiff: Moore v. Willamette Transp. Co. 7 Or. 356.

The jury by their verdict shall find as follows:—

1. If the verdict be for the plaintiff, that he is entitled to the possession of the property described in the complaint, or some part thereof, or some undivided share or interest in either, and the nature and duration of his estate in such property, part thereof, or undivided share or interest in either, as the case may be;

2. If the verdict be for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or to such part thereof as the defendant defends for, and the estate in such property or part thereof, or license or right to the possession of either, established on the trial by the defendant, if any; in effect as the same is required to be pleaded. [L. 1862; D. Cd. § 317; H. C. § 320.]

The plaintiff can only have judgment for the possession wrongfully withheld from him, with damages for such detention and costs; and the defendant can only have judgment for costs: Goldsmith v. Smith, 21 Fed. 613.

is entitled to the possession does not estop the plaintiff from bringing another action, since the judgment does not define the estate, whether the minors are simply to have the use of the property until they become of age or a fee simple: Fitch v. Cornell.

A verdict and judgment that guardian 1 Saw. 174.

§ 331. Damages Recoverable

Improvements Allowed as a Set-off.

The plaintiff shall only be entitled to recover damages for withholding

the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from such commencement to the time of giving a verdict therein, exclusive of the use of permanent improvements made by the defendant. When permanent improvements have been made upon the property by the defendant, or those under whom he claims, holding under color of title adversely to the claim of plaintiff, in good faith, the value thereof at the time of trial shall be allowed as a set-off against such damages. [L. 1862; D. Cd. § 318; H. C. § 321.]

RECOVERY OF DAMAGES; SET-OFF OF IMPROVEMENTS, ETC.-The right to damages for withholding the possession of real property given by the code is equivalent to the action of trespass for mesne profits given by the common law, and includes all damages to which the owner is entitled on account of the wrongful occupation of the premises, as well for waste committed or suffered by the occupant, as for the value of the use and occupation; such right is a distinct cause of action, and, if joined with a claim for possession, should be separately stated: Wythe v. Myers, 3 Saw. 595. Where one recovers in an action of ejectment the possession of real property, and in the same action recovers a judgment for mesne profits for the withholding of the land, and afterwards the defendant in the action of ejectment brings suit in equity against the plaintiff, in which it is determined and decreed that such defendant was the owner in equity of the land at and before the commencement of the action of ejectment, and that the plaintiff in such action was holding the legal title as trustee of such defendant, such defendant may recover of such plaintiff the amount of the judgment for the mesne profits, and costs and disbursements recovered of him in the ejectment action: Stark v. Starr, 7 Or. 500.

When a purchaser, for a valuable consideration, without notice of any infirmity of his title, has, by his improvements, added to the permanent value of the estate, he is entitled to full remuneration for such added value, and the same is a lien and

charge upon the estate which the absolute owner is bound to discharge before he can be restored to his original rights in the estate: Hatcher v. Briggs, 6 Ör. 31. The improvements for which recovery may be had must not only be permanent, but they must add to the future value of the property for the ordinary purposes for which it is or may be used: Stark v. Starr, 1 Saw. 15.

A person in possession under color of title, who makes permanent improvements upon the property, is presumed to be acting in good faith until the contrary appears: Stark v. Starr, 1 Saw. 15. A permanent improvement is something done or put upon the land by the occupant which he can not remove, either because it has become physically impossible to separate it from the land, or in contemplation of law it has been annexed to the soil and become a part of the freehold: Stark v. Starr, supra. A counterclaim for permanent improvements should not be pleaded to the whole complaint, but only to so much thereof as to which it is an answer or defense; and it should allege the present value of said improvements, and that they better the condition of the property for the ordinary purposes for which it is used: Wythe v. Myers, 3 Saw. 595; Fitch v. Cornell, 1 Saw. 158; Neff v. Pennoyer, 3 Saw. 496. Taxes paid under such conditions are a proper subject of counterclaim: Neff v. Pennoyer, supra. Where the plaintiff claims no damages, no counterclaim for improvements may be set up in an action at law: Hicklin v. Marco, 46 Fed. 425.

§ 332. Expiration of Plaintiff's Right Pending Action; Verdict Shall State Fact. If the right of the plaintiff to the possession of the property expire after the commencement of the action, and before the trial, the verdict shall be given according to the fact, and judgment shall be given only for the damages. [L. 1862 ; D. Cd. § 319; H. C. § 322.]

§ 333. Order to Make Survey.

The court or judge thereof, on motion, and after notice to the adverse party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy, and make survey and admeasurement thereof, for the purposes of the action. [L. 1862; D. Cd. § 320; H. C. § 323.]

§ 334. Order Must Describe Property-Proceedings Thereunder.

The order shall describe the property, and a copy thereof shall be served upon the defendant, and thereupon the party may enter upon the property,

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and make such survey and admeasurement; but if any unnecessary injury be done to the premises, he shall be liable therefor. [L. 1862; D. Cd. § 321; H. C. § 324.]

§ 335. Action not Prejudiced by Alienation of Person in Possession.

An action for the recovery of the possession of real property against a person in possession can not be prejudiced by any alienation made by such person, either before or after the commencement of the action; but if such alienation be made after the commencement of the action, and the defendant do not satisfy the judgment recovered for damages, for withholding the possession, such damages may be recovered by action against the purchaser. [L. 1862; D. Cd. § 322; H. C. § 325.]

$336. Mortgage not a Conveyance.

A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law. [L. 1862; D. Cd. § 323; H. C. § 326.]

MORTGAGOR AND MORTGAGEE.- a debt, and that the mortgagee acquires While a mortgagee is not permitted to maintain a possessory action to recover the mortgaged premises by reason of default of the mortgagor, if he can make a peaceable entry after condition broken, such possession is a good defense to an action of ejectment brought by the mortgagor, SO long as the mortgage debt remains unpaid: Cooke v. Cooper, 18 Or. 148, 22 Pac. 945, 17 Am. St. Rep. 709; Roberts v. Sutherland, 4 Or. 219.

An answer, however, which fails to allege that such entry was with the assent of the mortgagor is insufficient: Witherell v. Wiberg, 4 Saw. 234.

On the authority of this section it is held that a mortgage is mere security for

thereby no right to or interest in the mortgaged premises: Gest v. Packwood, 34 Fed. 375; Anderson v. Baxter, 4 Or. 110; Semple v. Bank of British Columbia, 5 Saw. 88; Savings Society v. Multnomah County, 169 U. S. 426; Dekum v. Multnomah County, 38 Or. 256, 63 Pac. 496; Marx v. La Rocque, 27 Or. 47, 39 Pac. 401. Such mortgagee has no right to rents and profits until foreclosure, and a stipulation in a mortgage for the appointment of a receiver of rents and profits on condition broken is contrary to public policy as here declared: Couper v. Shirley, 75 Fed. 170; Thompson v. Shirley, 69 Fed. 484; Teal v. Walker, 111 U. S. 251.

$337. Action for Dower by Cotenant; Denial by Plaintiff Must be Shown. In an action for the recovery of dower before admeasurement, or by a tenant in common of real property against a cotenant, the plaintiff shall show in addition to the evidence of his right of possession, that the defendant either denied the plaintiff's right, or did some act amounting to such denial. [L. 1862; D. Cd. §324; H. C. § 327.]

ACTION BY COTENANT.-A cotenant can not maintain this action against his cotenant unless the possession is actually and wrongfully withheld from him, or his right thereto wholly denied. Where a cotenant is in possession, and another cotenant claims an estate or interest in the premises held in common adverse to him, his remedy is by suit in equity for the purpose of determining such adverse claim:

Goldsmith v. Smith, 21 Fed. 612; but a denial in the answer of plaintiff's title and right of entry, in an action by one cotenant against another, is equivalent to an ouster: Grant v. Paddock, 30 Or. 315, 47 Pac. 712.

This section recognizes the widow's right to recover her dower right by action of ejectment before such dower is assigned: McKay v. Freeman, 6 Or. 449.

§ 338. Action for Possession for Nonpayment of Rent-Payment Before Judg


When in case of a lease of real property, and the failure of tenant to

pay rent, the landlord has a subsisting right to re-enter for such failure, he may bring an action to recover the possession of such property, and such action is equivalent to a demand of the rent, and a re-entry upon the prop erty; but if at any time before judgment in such action, the lessee or the successor in interest, as to the whole or a part of the property, pay to the plaintiff, or bring into court the amount of rent then in arrear, with interest, and the costs of the action, and perform the other covenants or agreements on the part of the lessee, he shall be entitled to continue in the possession according to the terms of the lease. [L. 1862; D. Cd. § 325; H. C. § 328.]

§ 339. Conclusiveness of Judgment - New Trial, When.

In an action to recover the possession of real property, the judgment therein shall be conclusive as to the estate in such property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the same is given, and against all persons claiming from, through, or under such party, after the commencement of such action, except as in this section provided. When service of the summons is made by publication and judgment is given for want of answer at any time within two years from the entry thereof, the defendant or his successor in interest, as to the whole or any part of the property, shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting him a new trial upon the payment of the costs of the action. [L. 1863 ; D. Cd. § 326 ; H. C. $ 329.]

CONCLUSIVENESS OF JUDGMENT.-A judgment in ejectment is conclusive as to the legal title and right of possession as between the parties, and can not be collaterally impeached: Hill v. Cooper, 8 Or. 254. Such judgment conclusively determines, from and after the date of its rendition, the estate of the defeated party in the property, and his right to possession. The estoppel thus created does not date from the commencement of the action, but from the rendition of the judgment: Barrell v. Title Guarantee Co. 27 Or. 84, 39 Pac. 992. A tenant in common, who is in actual

possession with his cotenant, is not affected by the judgment in an action of ejectment against the latter, to which he was not a party and of which he knew nothing: Miller v. Blackett, 47 Fed. 547.

Where, pending an appeal from a decree in plaintiff's favor in a suit to quiet title, plaintiff obtained a final judgment against defendants in an action for possession, it terminated the controversy, as the judgment is conclusive as to the estate in the property, and the appeal will be dismissed as if the suit had been abated: Moores v. Moores, 36 Or. 261, 59 Pac. 327.

$340. Possession Not Affected by Order for New Trial.

If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted, as provided in section 339, such possession shall not be thereby affected in any way, and if judgment be given for the defendant in the new trial, he shall be entitled to restitution by execution in the same manner as if he were plaintiff. [L. 1862; D. Cd. $327; H. C. § 330.]

§ 341. Dower Must be Admeasured Before Execution for Possession.

In an action to recover the possession of real property by a tenant in dower, or his successor in interest, if such estate in dower has not been admeasured before the commencement of the action, the plaintiff shall not have execution to deliver the possession thereof until the same be admeasured, as follows:

1. At any time after the entry of judgment in favor of the plaintiff, he may, upon notice to the adverse party, move the court for the appointment of referees to admeasure the dower out of the real property, of which the possession is recovered by the action. The court shall allow such motion, unless it appear probable on the hearing that a partition of such property can not be made without prejudice to the interests of the other owners. In the latter case the court shall disallow the motion, and thereafter the plaintiff shall only proceed for partition or sale of such real property as provided in chapter VI of title VI;

2. If the court allow the motion, thereafter the proceedings shall be conducted as provided in such chapter. At any time after the confirmation of the report of the referees, the plaintiff may have execution for the delivery of the possession of the property according to the admeasurement thereof, and for the damages recovered, if any, for withholding the same, if such damages remain unsatisfied;

3. If the motion for admeasurement be made at the term at which judgment was given, the notice thereof shall be served on the adverse party at such time as the court by general rule or special order may prescribe. [L. 1862; D. Cd. §328; H. C. § 331.] .

Where a widow's dower is to be admeasured before sale on execution, notice is to be given to the adverse party: Baer v. Ballingall, 37 Or. 425, 61 Pac. 852.

§ 342. Estate of Donee Under Donation Law


Presumption in Favor of Elder

In an action at law for the recovery of the possession of real property, if either party claim the property as donee of the United States under the act of congress approved September 27, 1850, commonly called the donation law, or the acts amendatory thereof, such party from the date of his settlement thereon, as provided in said acts, shall be deemed to have a legal estate in fee in such property, to continue upon condition that he perform the conditions required by such acts, which estate is unconditional and indefeasible after the performance of such conditions. In such action, if both plaintiff and defendant claim title to the same real property by virtue of settlement under such acts, such settlement and the performance of the subsequent conditions shall be conclusively presumed in favor of the party having or claiming under the elder patent certificate or patent, as the case may be, unless it appear upon the face of such certificate or patent that the same is absolutely void. [L. 1862; D. Cd. § 329; H. C. § 332.]

A donation claimant. upon complying with the donation act, although certificate or patent has not issued, has such an estate as that dower will attach: McKay v. Freeman, 6 Or. 456.

This section contains the legislative con

struction of the donation law therein referred to: McKay v. Freeman, 6 Or. 456. This construction was adopted in Chapman v. School District No. 1, 1 Deady 113; Lamb v. Davenport, 1 Saw. 632; Adams v. Burke, 3 Saw. 416.

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