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residence in this state for the purpose of divorce would be precluded from setting up such matter, as it requires one year in which to gain such residence: Jacobson v. Jacobson, 11 Or. 454, 5 Fac. 567.
CONDONATION. Resumption of the 4 is a present right, and hence a party has marital relation after knowledge of adultery a right from accrual thereof to plead such is a condonation of the offense: Eggerth matter; otherwise, a party gaining a legal v. Eggerth, 15 Or. 626, 16 Pac. 650; Atteberry v. Atteberry, 8 Or. 225; but the condonation is a conditional forgiveness of the offense, the condition being that the offense shall not be repeated. If repeated, the condonation is to be deemed withdrawn or avoided, and the party may rely upon the facts alleged to have been condoned: Eggerth v. Eggerth, supra. So, in regard to cruel treatment: Atteberry v. Atteberry, supra.
A defendant may take advantage of the defense of condonation without pleading it: Hil v. Hill, 24 Or. 416, 33 Pac. 809.
A demurrer to the complaint is not such an admission of the facts alleged therein as contemplated by subd. 4. To avail himself of this provision, the defendant must admit the charge, not only for the purpose of ascertaining its legal sufficiency, but as an actual fact: Rice v. Rice, 13 Or. 337, 10 Pac. 495.
The special defenses can not be joined in an answer which denies all of such charges. The admission required must be by answer: Eggerth v. Eggerth. 15 Or. 627, 16 Pac. 650. THE RIGHT OF SUIT referred to in subd.
RECRIMINATION.-If the party asking for a divorce is liable to a charge which is a cause for divorce. it will prevent him from obtaining such divorce, although the wife may have misconducted herself: Wheeler v. Wheeler, 18 Or. 261, 24 Pac. 900. COUNTERCLAIM.-The defendant may in an answer, in the way of a crossbill or counterclaim, demand and obtain the affirmative relief of a divorce, when shown to be entitled thereto: Dodd v. Dodd, 14 Or. 338, 13 Pac. 551.
VALIDITY OF COLLUSIVE AGREEMENT.-An agreement between the parties having for its object the dissolution of the marriage contract, or facilitating that result, such as an agreement by the defendant in a pending suit for divorce to withdraw his or her opposition and make no defense. is void: Thorpe v. Thorpe, 10 Or. 494.
§ 511. Effect of Decree on Real Property.
Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided one third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 513; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision. [Session L. 1862, p. 125, § 495; L. 1864; D. Cd. § 495; L. 1865, p. 40; H. C. § 499.]
EFFECT OF DECREE ON REAL PROPERTY. It is "whenever a marriage shall be declared dissolved" that the statute operates, not before or pendente lite, and the court is then authorized, and it becomes its duty, to enter a decree for the undivided one third part in fee of the whole of the real estate owned by the defendant at the time of such decree for a divorce. The real property which goes to the wife as a result of the divorce is not the subject-matter of the litigation, and the court has no jurisdiction to affect or divest the title of the husband to lands owned by him, or to decree one third of them to the wife, independent of a decree for a divorce; nor has the plaintiff any title upon which to base a suit to recover any portion of the same, except as it comes by force of the statute under a decree for a divorce: Houston v. Timmerman, 17 Or. 499, 21 Pac. 1037, 11 Am. St. Rep. 848.
A sale of the property of the husband during the divorce proceedings, upon an execution obtained on a judgment on a debt contracted before the divorce proceedings were instituted, is valid, and the property is not affected with any right of the wife therein: Houston v. Timmerman, supra.
This section is not to be construed as a general statute regulating the rights of the husband and wife in the lands of each other, generally: Barrett v. Failing, 6 Saw. 473.
The court decreeing a divorce may pass on the divorce and then on the division of the property, but it is said that both should be done in the same suit: Bamford v.
Bamford, 4 Or. 30. In Weiss v. Bethel, 8 Or. 522, however, it is held that if the property is not disposed of in the divorce suit a court of equity may dispose of it under this section in an original suit.
A court of equity may divest the party in fault of his land, and vest the same in the children: Doscher v. Blackiston, 7 Or. 403; or in the husband of a guilty wife: Brooks v. Ankeny, 7 Or. 461.
Where the decree of a divorce suit transfers the realty, the judgment roll should describe the property: Bamford v. Bamford. 4 Or. 30.
It is now the settled law in this state that the title to the property is not transferred by force of the statute. but by force of the decree; and where the complaint in a divorce proceeding contains no reference to or prayer for the property, and there is nothing in the decree concerning it, the party entitled to the property under this section acquires no right, legal or equitable, thereto by the decree: Bamford v. Bamford. 4 Or. 30; Hall v. Hall, 9 Or. 453; Wetmore v. Wetmore, 5 Or. 469; Houston v. Timmerman, 17 Or. 506, 21 Pac. 1037, 11 Am. St. Rep. 848; Ross v. Ross. 21 Or. 12, 26 Pac. 1007; Barrett v. Failing, 111 U. S. 528. There are two cases which seem to be at variance with this rule, namely, Barrett v. Failing. 6 Saw. 474, and Weiss v. Bethel, 8 Or. 522. In neither of these cases, however, was the point essential to the decision.
If the husband has made a fraudulent conveyance of his real estate with intent to defeat the right of his wife therein,
and she does not know of his title or of the fraud until after the decree of divorce, she may assert her right by a bill in equity which, although required by other provisions of the code to be in the form of an original suit brought in the county where the land lies, is in the nature of a bill of review for newly discovered evidence: Barrett v. Failing, 111 U. S. 528.
In a suit to dissolve the marriage contract, the court can not decree that the party in whose favor the divorce is granted shall be entitled to more than an undivided one third of the real estate owned by the other. Rees v. Rees, 7 Or. 47.
DECREE IN ANOTHER STATE.-A wife obtaining a decree of divorce in the court of another state having jurisdiction of the cause and of the parties, acquires no title in the husband's lands in Oregon: Barrett v. Failing, 111 U. S. 528.
DEATH OF PARTY PENDING AN APPEAL.-The death of the husband, pending an appeal by him from a decree of divorce which determines the property rights of the parties, does not abate the action nor the appeal as to such property rights; but both survive to the heirs of the deceased: Nickerson v. Nickerson, 34 Or. 1, 48 Pac. 423.
Provision for Maintenance and Custody of Children Pending Suit. After the commencement of a suit, and before a decree therein, the court or judge thereof may, in its discretion, provide by order as follows:
1. That the husband pay, or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be;
2. For the care, custody, and maintenance of the minor children of the marriage during the pendency of the suit;
3. For the freedom of the wife from the control of the husband during the pendency of the suit. [L. 1862; D. Cd. § 496; H. C. § 500.]
ALIMONY, PENDENTE LITE.-Temporary alimony may be granted pendente lite: Houston v. Timmerman, 17 Or. 499, 21 Pac. 1037, 11 Am. St. Rep. 848.
The court can not make an allowance for the wife's counsel fees, nor for her support pendente lite, in a suit by the wife to secure a separate maintenance under §§ 5240-5243: Therkelsen v. Therkelsen, 35 Or. 76, 54 Pac.
The supreme court can not, pending an appeal, order payment of alimony or counsel fees by one of the parties. The law contemplates that such an allowance shall be made, if made at all, by the circuit court before appeal: O'Brien v. O'Brien, 36 Or. 92. 57 Pac. 374.
Where a decree of divorce obtained without personal service of summons, was opened and the wife allowed to defend, and
there were circumstances tending to show that the plaintiff had induced, or permitted his wife to go to another state that he might obtain a divorce in her absence without her knowledge, it was directed that an order be entered requiring the plaintiff to provide for the expenses of her return: Smith v. Smith, 3 Or. 364.
Where the court ordered the husband to pay an amount to enable the wife to defend à divorce suit within thirty days, and the plaintiff failed to comply within the time named, but later paid into court the amount, and filed an affidavit showing that his default was owing to his inability to raise the same within the time prescribed, such showing excuses the disobedience, and it is error to dismiss the suit upon the ground of such default: Newhouse v. Newhouse, 14 Or. 290, 12 Pac. 422.
§ 513. Decree for Maintenance and for Custody of Children.
Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree as follows:
1. For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault;
2. For the recovery of the party in fault, and not allowed the care and custody of such, children, such an amount of money, in gross or in installments, as may be just and proper for such party to contribute towards the nurture and education thereof;
3. For the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other;
4. For the delivery to the wife, when she is not the party in fault, of her personal property in the possession or control of the husband at the time of giving the decree;
5. For the appointment of one or more trustees to collect, receive, expend, inanage, or invest, in such manner as the court shall direct, any sum of money
decreed for the maintenance of the wife or the nurture and education of minor children committed to her care and custody;
6. To change the name of the wife, when she is not the party in fault. [L. 1862 ; D. Cd. § 497 ; H. C. § 501.]
CUSTODY OF MINOR CHILDREN.—A decree of divorce which fails to provide for the care and custody of minor children of the marriage, if there be such, is defective: Boone v. Boone, 12 Or. 439, 8 Pac. 450.
The care and custody of minor children should be given to the party not in fault, unless there is evidence showing that it will be manifestly improper to do so, and a special finding of fact made by the court to that effect: Lambert v. Lambert, 16 Or. 485, 19 Pac. 459.
The mere fact that the care of the children is awarded to the party in fault raises no presumption of error: Pitman v. Pitman, 3 Or. 553.
In providing for the future care and custody of the minor children in such a case,
the principal matter for consideration is the best interest and welfare of the child. That consideration should be paramount to every other motive and influence: Lambert v. Lambert, 16 Or. 485, 19 Pac. 459.
§ 514. Power of Court to Modify Decree.
Other things being equal, a father is to be preferred to a grandfather as custodian of the child: Jackson v. Jackson, 8 Or. 402. In the case of Lambert v. Lambert, supra, however, the custody was granted to the grandfather in preference to the father.
ALIMONY.-Where the supreme court has a divorce case for final disposition on its merits, it will grant such relief in the way of an additional allowance for alimony or expenses as may seem proper under the proof submitted: O'Brien v. O'Brien, 36 Or. 96, 58 Pac. 892.
At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit. [L. 1862; D. Cd. § 498; H. C. § 502.]
of alimony was proper: Brandt v. Brandt, 40 Or., 67 Pac. 508.
MODIFICATION OF DECREE.-Under such marriage, and from further payment this section the court has authority, on motion, to set aside, alter, or modify so much of a divorce decree as may have provided for the maintenance of either party. A divorce, therefore, is not final nor res judicata between the parties as to such matters: Henderson v. Henderson, 37 Or. 141. 60 Pac. 597, 48 L. R. A. 766.
Where a decree awarding permanent alimony is not based on any consideration of property rights of the wife, but merely as a provision for her support and maintenance, the statute is sufficiently broad enough to authorize an order releasing defendant from the payment of further alimony for causes arising subsequently to the decree, where such course appears equitable. Thus, where a wife was allowed permanent alimony, and subsequently remarried, an order releasing defendant from the payment of alimony which had accrued subsequent to
§ 515. Marriage Terminated by Decree
Such modification can only be made on a motion in the original suit, and the court, under this section retains jurisdiction for that purpose. The court has no power to direct the husband to pay the wife's counsel fees in a suit brought independently by a husband to modify a decree fixing the amount of permanent alimony: Corder v. Speake, 37 Or. 108, 51 Pac. 643.
But a decree carriyng into effect the terms of an agreement between husband and wife, by which the latter is to receive a certain sum per month during her life, after a divorce caused by the husband's misconduct, can not afterwards be modified by the court without the consent of both parties thereto: Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 48 L. R. A. 766.
- Right to Remarry.
A decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor
as if such decree had not been given, until the suit has been heard and determined on appeal, and if no appeal be taken, the expiration of the period allowed by this code to take such appeal. [L. 1862; D. Cd. § 499; H. C. § 503.]
A marriage contracted in another state by a resident of Oregon, who has been divorced in this state by a decree from which there is yet time to take an appeal,
is absolutely void, under this section: McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 65 Am. St. Rep. 835, 38 L. R. A. 863.
OF SUITS TO DETERMINE ADVERSE CLAIMS TO REAL PROPERTY, AND TO CANCEL A PATENT WRONGFULLY
§ 516. Suit to Determine Adverse Claim to Real Estate.
Any person claiming an interest or estate in real estate not in the actual possession of another may maintain a suit in equity against another who claims an interest or estate therein adverse to him, for the purpose of determining such conflicting or adverse claims, interests, or estates. [L. 1862; D. Cd. § 500; H. C. § 504 ; L. 1899, p. 227.]
SUIT TO QUIET TITLE.-It is not necessary, in order to maintain a suit under this section, that the claim sought to be determined should be a technical cloud on title as the term is understood in equity. It is enough if calculated to create doubt and uncertainty in respect to the title of the true owner, or if operating injuriously in any way to his enjoyment of or beneficial dominion over such property. Any attempt persisted in to have such property sold on execution against a third party is an adverse claim in the meaning of this section: Murphy v. Sears, 11 Or. 127, 4 Pac. 471.
A person in order to prosecute a bill must have some right, legal or equitable: Stark v. Starrs, 73 Ú. S. (6 Wall.) 402.
This statute enlarges the jurisdiction of courts of equity: Holmes v. Oregon & Cal. R. Co. 5 Fed. 84.
A suit to remove a cloud and one to quiet title are essentially different. In the latter case, it is sufficient to allege that the defendant claims an estate or interest in the property adverse to the plaintiff, and call upon him to assert the nature and character of such adverse estate or interest, and subject it to a judicial investigation that the right of possession between them may be forever quieted: O'Hara v. Parker, 27 Or. 164, 39 Pac. 1004; Teal v. Collins, 9 Or. 91; Stark v. Starrs, 73 U. S. (6 Wall.) 410; Zumwalt v. Madden, 23 Or. 185, 31 Pac. 400; Goldsmith v. Gilliland, 10 Saw. 606, 21 Fed. 611.
The plaintiff on a trial having simply introduced deeds under which he claimed title without attempting to show that the property was in the actual possession of another, and the defendant having offered his deeds and shown that he was then and had long been in the possession, the complaint should have been dismissed for want of equitable jurisdiction: Moore v. Shofner, 40 Or. —, 67 Pac. 511.
A suit in equity may be maintained against a county to remove a cloud upon a
title to realty created by tax sale certificates held by the county based upon a void assessment against the former owner of the property, as such a suit is not in the nature of a suit to avoid payment of taxes. The suit may be either a technical suit to remove a cloud or a suit under this section of the code: Moores v. Clackamas County, 40 Or. 67 Pac. 662.
Although the manner of instituting a suit to remove a cloud upon the title to real property and a suit to determine adverse claims thereto is different, it being necessary to set out in the complaint in the former the nature of defendant's claim; whereas in the latter it is only necessary to allege that defendant claims an adverse interest and call upon him to set it forth, the relief sought in both suits is identical. Hence, in a suit to determine adverse claims wherein defendant declined to disclose the nature of his claim, complainant's reply disclosing that the adverse claim complained of was a technical cloud on the title, did not constitute such a departure as to require the suit to be dismissed, but the court, having jurisdiction of the subject-matter, would decree such relief as plaintiff would have been entitled to had the suit been a technical suit to remove a cloud: Moores V. Clackamas County, supra.
Where defendants, deeming a mine forfeited by plaintiff, located the same ground, and plaintiff subsequently commenced work thereon, and a few days later defendants also began work, plaintiff could maintain an action as one in possession, under this section, and he need not resort to an ejectment: Crown Point Min. Co. v. Crismon, 39 Or. 364, 65 Pac. 87.
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 a suit in equity for the purpose of determining such adverse claim, as provided in this section: Gold
smith v. Smith, 10 Saw. 294, 21 Fed. 611.
Thus, it is held that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity ought to be stated: Teal v. Collins, 9 Or. 89; but where, as in this state, the statute declares a tax deed to be prima facie evidence of title, in a suit to remove a cloud created by such a deed, the mere naming of the instrument, alleging that it is regular upon its face, is sufficient to show its apparent validity: Day v. Schneider, 28 Or. 459, 43 Pac. 650.
In a suit to prevent a cloud on title, a complaint describing the property as "70 acres thereof," referring to a farm of 110 acres, is insufficient: Kadderly v. Frazier, 38 Or. 273, 63 Pac. 487.
A complaint must show the particular muniment which is said to constitute the cloud and the particular infirmity which renders it void, and the facts as to the infirmity must be set out. It will not be sufficient to allege generally that the muniment or record is void. Thus, an allegation that a certain section of a city charter "in so far as it attempts to authorize any improvement or repair of any street to be made without any petition therefor, or without any remonstrance being heard thereto, and also by reason of not providing for any sufficient notice thereof is unconstitutional and void," is not the equivalent of an allegation that no notice was given of the proposed improvement, or that no opportunity was afforded plaintiff of being heard on the question of the proposition of costs to be assessed against each parcel of land affected: Shannon v. Portland, 38 Or. 391, 62 Pac. 50.
A legal title, either one resting on records
or on adverse possession, can not be asserted in equity, as by a suit to remove a cloud from a title, except by one in possession: Silver v. Lee, 38 Or. 511, 63 Pac. 882.
The plaintiff in a suit to quiet title can not, at his option. split it up into many suits, and if he omits to set forth and prove all the grounds of his right or his adversary's want of it, he can not afterwards bring another suit upon the fragment or portion of the case omitted; and where one of the grounds of relief is abandoned by the plaintiff because adjudged to be inconsistent with another ground of relief alleged in the complaint, and such suit is finally determined adversely to the plaintiff, he is barred from maintaining another suit for the same relief upon such abandoned ground: Starrs v. Stark, 1 Saw. 270.
An application filed in the office of the secretary of state to purchase the accretions of a river cast upon the property of a person as swamp and overflow land is a mere nullity, and casts no cloud on the title of the riparian owner: Minto v. Delaney, 7 Or. 338.
A suit to ascertain and quiet title, under this section, extends to and includes all grounds of controversy between the parties as to the title of the premises, and by the final decree therein all matters affecting such title are determined: Starrs v. Stark, 1 Saw. 270.
A suit to restrain an infringement upon the enjoyment of an irrigation franchise is not a suit to determine an adverse claim to real property, within the meaning of this section: Umatilla Irrig. Co. v. Umatilla Imp. Co. 22 Or. 386, 30 Pac. 30.
A suit by the owner in fee to determine an adverse claim to or interest in real estate, or to remove a cloud from the title, is never barred while the adverse claim or interests exists: Meier v. Kelly, 22 Or. 138, 29 Pac. 265.
§ 517. Suit to Cancel Patent Wrongfully Issued.
Whenever any person claims any real property as a donee of the United States, by virtue of a settlement thereon, under the act of congress approved September 27, 1850, commonly called the donation law, or the acts amendatory thereof, and the patent for such property, or any portion thereof, shall have wrongfully issued to another, such person may maintain a suit in equity against the person to whom the patent may issue, or those claiming under him, for the purpose of having such patent canceled, and the estate or interest of the plaintiff in the property ascertained and established. In such suit, the party entitled to and making the settlement under such acts of congress, and complying with the subsequent conditions thereby required, shall be taken and deemed to have a legal estate in fee in the property, although the patent therefor has issued to another. [L. 1862; D. Cd. § 501; H. C. § 505.]
This section expresses in a condensed manner what has always been the rule of practice of the United States courts in equity cases concerning public grants of land: Lee v. Summers, 2 Or. 267. This right to set aside a patent can not be exercised by a stranger to the title. The right to resist a patent rests only with the government and those who are in an attitude lawfully to claim under the government: Lee v. Summers, supra.
In Baker v. Woodward, 12 Or. 18, 6 Pac. 173, it is held that the limitation prescribed by § 392, ante, was intended to apply only to controversies arising under this section. At that time the limitation prescribed by § 392 was five years, but this limitation has been extended to ten years, the same as the limitation in other actions for an interest in real property.