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testamentary or of administration, and until the final settlement of the estate and discharge of such executor or administrator from the trust, and not otherwise. [L. 1862; D. Cd. § 373; H. C. § 377.]

See § 1108 for limitation of actions brought to contest wills.

It is essential that the complaint should show that letters of administration had been granted six months before the action was brought. An allegation that on the third day of November, 1879, an order or determination of the county court was duly made, appointing J. A. administrator of the estate of C. A., deceased, is not an allegation that letters of administration were granted on that day, as required by this section: Wells v. Applegate, 10 Or. 519. The provision that the complaint should show that six months had expired after the issuing of letters testamentary, does not apply to suits brought to foreclose mortgages: Teel v. Winston, 22 Or. 491, 29 Pac. 142.

Where the complaint shows that six months elapsed from the issuing of letters of administration before the commencement of the action, but does not show on what date the executor qualified, it will be presumed after verdict that he qualified immediately: Aiken v. Coolidge, 12 Or. 246, 6 Pac. 712.

The purpose of § 1161, post, is to afford a summary method for the adjudication of

claims without the necessity of technical pleadings, and the effect of the judgment is merely to establish the claim as if allowed, so as to require it to be satisfied in due course of administration. There is no repugnance, therefore, between this section and § 1161: Pruitt v. Muldrick, 39 Or. 353, 65 Pac. 20.

The death of a mortgagor and proceedings in the county court do not prevent or suspend foreclosure of the mortgage. The only consequence of a failure to present the claim to the executor or administrator before bringing suit is that a personal judgment can not be rendered for a balance of the debt remaining unpaid after the security is exhausted: Teel v. Winston, 22 Or. 491, 29 Pac. 142.

The period of six months during which an action against the personal representatives is forbidden must not be regarded as part of the time limited for commencing the action: Blaskower v. Steel, 23 Or. 109, 31 Pac. 252.

Where there is no legal presentment of a claim against an estate, it is a bar, after expiration of the stautory time for presentment, to suit on such claim: Zachary v. Chambers, 1 Or. 321.

$388. Claim Must be Presented to Executor or Administrator.

Such action shall not be commenced until the claim of the plaintiff has been duly presented to such executor or administrator, and by him disallowed. If such claim is presented after the expiration of such period of six months, the executor or administrator, in an action therefor, shall only be liable to the extent of the assets in his hands at the time the summons is served upon him. [L. 1862; D. Cd. § 374; H. C. § 378.]

§ 389. Provisional Remedies Against Executors or Administrators.

In an action against an executor or administrator, as such the provisional remedies of arrest and attachment shall not be allowed on account of the acts of his testator or intestate; but for his own acts as such executor or administrator such remedies shall be allowed for the same causes, and in like manner, and with like effect, as in actions at law generally. [L. 1862; D. Cd. § 375; H. C. § 379.]

TITLE VI.

OF SUITS IN EQUITY.

CHAPTER I.

OF GENERAL PROVISIONS RELATING TO SUITS IN
EQUITY

390

II.

III.

OF ISSUES, THEIR TRIAL, AND THE MODE THEREOF
OF THE MODE OF ENFORCING A DECREE

405

415

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V.

OF THE FORECLOSURE OF LIENS UPON REAL OR PER-
SONAL PROPERTY

423

VI.

OF SUITS FOR PARTITION OF REAL PROPERTY .

435

VII.

OF SUITS BY AND AGAINST EXECUTORS, ADMINIS-
TRATORS, LEGATEES, HEIRS, OR DEVISEES

484

VIII.

OF SUITS TO DECLARE VOID OR DISSOLVE THE MAR-
RIAGE CONTRACT

501

IX.

OF SUITS TO DETERMINE ADVERSE CLAIMS TO REAL
PROPERTY, AND TO CANCEL A PATENT WRONG-
FULLY ISSUED THEREFOR

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§ 390. For What Causes Suit in Equity Maintainable.

The enforcement or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity in all cases where there is not a plain, adequate, and complete remedy at law, and may be obtained thereby in all cases where courts of equity have been used to exercise concurrent jurisdiction with courts of law, unless otherwise specially provided in this title. In a suit, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. [L. 1862; D. Cd. § 376; H. C. § 380.]

RELIEF IN EQUITY.-The opportunity tion of the code between forms of actions afforded by this section for a treatise on at law is abolished, but proceedings in the entire scope of equity will not be em- equity are still kept distinct from actions braced, but the note will be restricted to at law: Ming Yue v. Coos Bay R. Co. 24 those cases within the narrower limits of Or. 393, 33 Pac. 641. the section.

The fundamental basis of equity jurisdicThe distinction existing before the adop- tion is the want of a plain, adequate, and

complete remedy at law: Love v. Morrill, 19 Or. 549, 24 Pac. 916; Davis v. Hofer, 38 Or. 154, 63 Pac. 56.

Where the facts necessary to give a court of equity jurisdiction are stated in the complaint, and are denied by the answer, the question of jurisdiction becomes one of fact to be determined on the hearing, and is not waived; and where, during the progress of the trial, want of jurisdiction appears, it is the duty of the court to dismiss the complaint: Love v. Morrill, 19 Or. 550, 24 Pac. 916.

In the following cases there is an adequate remedy at law: Where the only controversy between the parties is the legal title to a strip of land claimed to have been acquired by adverse possession: Love v. Morrill, 19 Or. 545, 24 Pac. 916. Where a party seeks to be relieved from a judgment on account of ignorance of an essential fact at the time of trial in the circuit court: Wells, Fargo & Co. v. Wall, 1 Or. 295. Where plaintiff and defendant, who were attorneys but not partners, were employed to prosecute several suits, and had an agreement between themselves as to the amount of commission each should receive, and one collects and fails to pay over to the other his due proportion of the fee: Willis v. Crawford, 38 Or. 530, 63 Pac. 985.

A court of equity, after sustaining an arbitration and award in a suit to set aside the award and receiver on an insurance policy, can not decree a recovery as to items not submitted to arbitration, for there is an adequate remedy at law by an action for their value: Stemmer v. Scottish Ins. Co. 33 Or. 82. 49 Pac. 588.

The act of congress of March 12, 1860, "to extend the provisions of an act to enable the State of Arkansas and other states to reclaim the swamp land within their limits, to Oregon and Minnesota," was a grant in praesenti to the latter states of land that was in fact swamp land at the date of the act; and a party claiming such land under a patent from the State of Oregon has a complete remedy at law against one claiming under a patent from the government: Miller v. Tobin, 16 Or. 540, 16 Pac. 161.

Equity will not, simply on the ground of preventing a multiplicity of suits, exercise jurisdiction over a joint suit by several plaintiffs whose rights are purely legal and entirely distinct, and each one of whom claims a separate judgment, the granting or refusing of which does not depend upon the rights of his coplaintiffs. In such case the legal remedies are quite adequate: Van Auken v. Dammeier, 27 Or. 154, 40 Pac. 89.

But where one has made a conveyance of property in consideration of her future support, although she has a remedy at law, to avoid a multiplicity of actions to recover for such support equity will make her maintenance a charge upon the premises: Patton v. Nixon, 33 Or. 162. 52 Pac. 1048.

A bill in equity should be dismissed where the subject-matter is entirely without the pale of equity jurisdiction, though both parties consent to a trial upon the merits: Small v. Lutz, 34 Or. 136, 55 Pac. 529.

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A suit by a judgment debtor will not lie to enjoin the sale of his personal property under execution upon the ground that it is exempt, unless the property possesses special value to the judgment debtor alone, such as a keepsake the loss of which can not be compensated in damages, since the judgment debtor has an adequate remedy at law for the unlawful seizure and detention, except as to property possessing such special value: Parsons v. Hartman, 25 Or. 547, 37 Pac. 61, 42 Am. St. Rep. 803.

But, unless the remedy at law is as adequate and complete as the remedy in equity, a party will not be compelled to resort thereto: Benson v. Keller, 37 Or. 129, 60

Pac. 918; South Port. Land Co. v. Munger, 36 Or. 473, 54 Pac. 815.

Where B. being in possession of sundry duebills, was induced by K, through certain fraudulent representations, to deliver them to him for the purpose of paying a debt of B's, but the duebills were pledged for K's personal debts, an action for damages against K for deceit would not be as effective as the remedy in equity, even if K were solvent: Benson v. Keller, 37 Or. 129, 60 Pac. 918.

Garnishment and attachment proceedings do not afford an adequate remedy at law to uncover assets fraudulently concealed, and do not take the place of the creditor's bill: Sabin v. Anderson, 31 Or. 495, 49 Pac. 870; Matlock v. Babb, 31 Or. 516, 49 Pac. 873. Nor do the proceedings supplementary to execution afford such adequate remedy: Matlock v. Babb, 31 Or. 516, 49 Pac. 873. So, when a court of equity originally had jurisdiction in any class of cases for which the proceedings at common law did not then afford an adequate remedy, such jurisdiction will not be lost by reason of subsequent legislation conferring on courts of law authority to decide such cases, unless there are negative words excluding the jurisdiction of equity: Phipps v. Kelly, 12 Or. 218, 6 Pac. 707; Baer v. Ballingall, 37 Or. 422, 61 Pac. 852; Fleischner v. Citizens' Invest. Co. 25 Or. 129, 35 Pac. 174.

Where equity takes jurisdiction for one purpose, it will retain the case until the whole subject is disposed of, but the primary and original object of the suit must be clearly within its jurisdiction: Phipps v. Kelly, 12 Or. 221, 6 Pac. 707.

Thus, where a court of equity acquires jurisdiction to re-establish a lost instrument, it may go on and award damages for the breach thereof: Howe v. Taylor, 6 Or. 292.

So, where a court obtains jurisdiction to enjoin a nuisance, it may also award damages: Fleischner v. Citizens' Invest. Co. 25 Or. 132, 35 Pac. 174.

Where a court of equity originally had jurisdiction, it does not lose it because, prior to the decree, the situation is so changed by the acts of the defendant as to render it possible for a court of law to grant the same relief: Crossen v. Murphy, 31 Or. 128, 49 Pac. 858.

But this rule can not be invoked to procure a money judgment in a foreclosure suit where the mortgage was adjudged void, for the equitable jurisdiction depended upon the validity of the mortgage: Denny v. McCown, 34 Or. 53, 54 Pac. 952.

So, where a complaint in a foreclosure of mechanics' lien does not state a cause of suit, it can not be retained and a money judgment decreed thereon: Ming Yue v. Coos Bay R. Co. 24 Or. 392, 33 Pac. 641.

Denial of an application under § 103 to vacate a judgment on the ground of inadvertence, surprise, or excusable neglect is a bar to a suit in equity for the same relief on the same ground: Thompson v. Connell, 31 Or. 232, 46 Pac. 467, 65 Am. St. Rep. 818.

Where one of plaintiff's attorneys takes a judgment against the defendant while the latter is engaged in trying to make settlement with the plaintiff and another of his attorneys at the latter's suggestion, equity will set it aside for fraud: Marsh v. Perrin, 10 Or. 364.

One seeking such relief in equity must be free from fault or negligence: Brenner v. Alexander, 16 Or. 349, 19 Pac. 9, 8 Am. St. Rep. 301.

CORRECTING MISTAKES AND REFORMING INSTRUMENTS.-Equity will reform a mistake in a written instrument, but it requires therefor the cleanest and most satisfactory proof of the mistake: Smith v. Butler, 11 Or. 47, 4 Pac. 517; Epstein v. State Ins. Co. 21 Or. 181, 27 Pac. 1045; Shively v. Welch, 2 Or. 288; Evarts v.

Steger, 5 Or. 147; Lewis v. Lewis, 5 Or. 169; Stephens v. Murton, 6 Or. 194; Remillard v. Prescott, 8 Or. 38; Mitchell v. Holman, 30 Or. 280, 47 Pac. 616; Foster v. Schmeer, 15 Or. 363, 15 Pac. 626; Archer v. California Lumb. Co. 24 Or. 341, 33 Pac. 526; Kleinsorge v. Rohse, 25 Or. 51, 34 Pac. 874; South Port. L. Co. v. Munger, 36 Or. 457, 54 Pac. 815. Where, however by mutual mistake, a deed describes property other than that purchased, and the land described in the deed is sold on execution against the vendee, the sale is void; and equity can not, at the instance of the grantee of a purchaser at the execution sale, correct the error so as to give him title to the land actually purchased by the vendee: Burrows v. Parker, 31 Or. 57, 48 Pac. 1100, 65 Am. St. Rep. 812.

§ 391. Mode of Proceeding in Suit.

Equity will correct a mistake in a judgment or decree where such mistake is not judicial, and there is no other means of obtaining relief: Smith v. Butler, 11 Or. 48, 4 Pac. 517.

A general assignment for the benefit of creditors, when made in fraud of the insolvent law, may be set aside in equity: Dawson v. Coffey, 12 Or. 513, 8 Pac. 838.

An objection in an equity suit that plaintiff has an adequate remedy at law can not be raised by a defendant who has by his own answer asked equitable relief: Municipal Security Co. v. Baker County, 33 Or. 338, 54 Pac. 174.

For equity jurisdiction in abating a nuisance, see note to § 343.

For injunction, see note to § 420.

Bills of revivor and bills of review, of whatever nature, exceptions for insufficiency, impertinence, or irrelevancy, and crossbills, except as hereinafter mentioned, are abolished; but a decree in equity may be impeached and set aside, suspended, avoided, or carried into execution by an original suit: and in an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of crossbill, which shall stay the proceedings at law, and the case thereafter shall proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree. The mode of proceedings in a suit, from the commencement to the determination thereof, and thereafter until satisfaction or performance of the decree be had, shall be as provided in this title, and not otherwise. [L. 1862; D. Cd. § 377; L. 1870, p. 30, § 4; H. C. § 381.]

BILLS IN EQUITY.-While bills of review and other forms of bills have been abolished by the code, it is only the form that is abolished, the substance remains: Heatherly v. Hadley, 4 Or. 8.

A suit to set aside a decree may now be maintained upon the grounds which would formerly have been sufficient to maintain a bill of review: Crews v. Richards, 14 Or. 433. 13 Pac. 67.

An original bill may be maintained to set aside or impeach a decree upon any of the grounds which might have been maintained formerly under a bill of review: Hilts v. Ladd, 35 Or. 241, 58 Pac. 32.

An original bill in the nature of a bill of review will probably lie to correct errors of law appearing on the face of the decree sought to be reviewed: Campbell v. Snyder, 27 Or. 250. 41 Pac. 659.

The remedy must be by original bill, and can not be by one in the nature of a bill of review: Nessley v. Ladd, 30 Or. 564, 48 Pac. 420; Knott v. Knott, 6 Or. 336.

A suit to set aside the decree can not be maintained where it appears that the plaintiffs not only knew, but could have used, at the former trial, the matters upon which they seek to set aside the decree, and the only ground of relief asserted is that they were misled by the allegations of the adverse party: Crews v. Richards, 14 Or. 446, 13 Pac. 67.

A suit to impeach a decree regularly entered can not be maintained on cumulative parol evidence to a point in issue in the

VOL. I.-16.

original suit: Hilts v. Ladd, 35 Or. 241, 58 Pac. 32.

After the expiration of the term during which it was entered a consent decree can not be attacked or impeached in any manner except by an original bill: Stites v. McGee, 37 Or. 575, 61 Pac. 1129.

Where one has obtained a decree upon a note and mortgage which was subject to a counterclaim against his assignor, who is insolvent, the court in which the decree was entered may entertain an original bill to restrain its enforcement: McDonald v. Mackenzie, 24 Or. 580, 14 Pac. 868.

Where there are no allegations in the complaint in a suit to set aside a foreclosure decree and to enjoin the execution of a sheriff's deed to the purchaser, that the decree was procured by fraud, or that defendant was prevented from making a defense by fraud. accident, or excusable mistake, and there is no showing of a meritorious defense, the decree will be set aside only on the showing that it is void, and that the execution of the deed will create cloud on plaintiff's title: George v. Nowlan, 38 Or. 539, 64 Pac. 1.

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Schefflin v. Weatherred, supra.

The jurisdiction obtained by a court of equity of a crossbill is the same as the original jurisdiction at common law. The relief afforded under such a crossbill is as broad as that which may be obtained by an original bill, and the remedy may be invoked whenever the law remedy is not as prompt, adequate, and efficient as that in equity: South Port. L. Co. v. Munger, 36 Or. 472, 60 Pac. 5.

law, the defendant is entitled to relief summons:
arising out of facts requiring the interposi-
tion of a court of equity, and such facts are
material to his defense in the action at law,
he may set them out in a crossbill, although
such facts constitute but a partial defense
to the action at law, and are not such as
could be made the subject of an original
bill. The defendant, however, must be
without a plain, adequate, and complete
remedy at law: Hatcher v. Briggs, 6 Or.
31; Beacannon v. Liebe, 11 Or. 447, 5 Pac.
273; South Port. L. Co. v. Munger, 36 Or.
472, 60 Pac. 5.

In an action at law, in order to enable the court to consider a purely equitable title, or any facts which in equity subordinate a legal title, and give the defendant a better right by reason of his superior equity, it must be brought before the court by a crossbill, as provided in this section: Moore v. Frazier, 15 Or. 639. 16 Pac. 869. When such a crossbill is filed the defendant institutes a suit which must be determined before any further proceedings in a law action can be had: Oatman v. Epps, 15 Or. 437, 15 Pac. 709.

When an answer sets up a full and complete legal defense to an action, a crossbill in equity can not be filed under this section: Dolph v. Barney, 5 Or. 215; Scheland v. Erpelding. 6 Or. 259.

A defendant in an action at law has no right to file a complaint in equity in the nature of a crossbill. unless the complaint shows that he is entitled to relief arising out of facts requiring the interposition of a court of equity, and material for his defense; and where it appears from the complaint filed in such a case that the facts alleged, if true, would be a defense in an action at law, a demurrer to the complaint will be sustained: Schefflin v. Weatherred, 19 Or. 174, 23 Pac. 898.

The cross complaint in such a case is really as independent of the action at law as though it were commenced by original

§ 392. Limitations of Suits.

Where defendant filed a cross complaint alleging an equitable defense and plaintiff, after a motion to strike and demurrer to cross complaint had been overruled, answered, the right to insist that the action be tried at law was waived, since by answering plaintiff voluntarily submitted to equitable jurisdiction: South Port. L. Co. v. Munger, 26 Or. 467, 60 Pac. 5.

A stipulation between parties to an action at law in which a crossbill in equity was interposed, that the suit in equity shall proceed to trial and that the findings of fact shall be filed in the law action and judgment entered accordingly is of no effect where the court of its own motion dismissed the crossbill for want of jurisdiction, and the law action must then proceed as if the crossbill had never been filed or the stipulation made: Small v. Lutz, 34 Or. 140, 55 Pac. 529, 58 Pac. 79.

A party may rely upon a legal defense in an action without being thereby precluded from afterwards asserting his equitable title in an original suit: Hill v. Cooper, 6 Or. 181; South Port. L. Co. v. Munger; 36 Or. 473, 60 Pac. 5; Spaur v. McBee, 19 Or. 79, 23 Pac. 818.

APPEAL.-Error in sustaining the demurrer to a complaint in the nature of a crossbill can not be inquired into upon an appeal from a judgment recovered in the law case. The proceedings at law should be disregarded and the appeal taken from the decree in the equity case: Oatman v. Epps, 15 Or. 437, 15 Pac. 709.

A suit shall only be commenced within the time limited to commence an action as provided in chapter II of title I of this code; and a suit for the determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property; but no suit shall be maintained to set aside, cancel, annul, or otherwise affect a patent to lands issued by the United States or this state, or to compel any person claiming or holding under such patent to convey the lands described therein, or any portion of them, to the plaintiff in such suit, or to hold the same in trust for, or to the use and benefit of, such plaintiff, or on account of any matter, thing, or transaction which was had, done, suffered, or transpired prior to the date of such patent, unless such suit is commenced within ten years from the date of such patent. In a suit upon a new promise, fraud, or mistake, the limitation shall only be deemed to commence from the making of the new promise or the discovery of the fraud or mistake: Provided, this section shall not be construed so as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title; and in any action for the recovery of any real property, or the possession thereof, by any person or persons claiming or holding the legal title to the same under such patent against any person or persons in possession of such real property under any equitable

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