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J. W. Whalley and R. S. Strahan, for ap- Courts will not generally decree the specific pellant. S. H. Gruber, for respondents. performance of a contract to deliver per

sonal property, (Wat. Spec. Perf. § 16;) and MOORE, J., (after stating the facts.) The yet it was held in Hapgood v. Rosenstock, specific performance of a building contract 23 Fed. Rep. 86, that “agreements for the will rarely be enforced (Pom. Spec. Perf. assignment of a patent, and for the delivery § 23) upon the theory, as announced by Sir of chattels which can be supplied by the Loyd Kenyon, M. R., in Errington v. vendor alone, are among those which will be Aynesly, 2 Brown, Ch. 341, “that, if one per- specifically enforced." This decision was apson would not build, another might be found | proved by the supreme court of Massachusetts who would," and for the reason given by in Adams v. Messenger, 17 N. E. Rep. 491. Lord Thurlow in Lucas V. Commerford, 3 Applying these rules to the case at bar, the Brown, Ch. 166, “that the court could not defendant has stone which cannot be procured undertake to superintend the construction of from any other quarry, and plaintiff must use a building." Such contracts have in some it, or the harmony of its bu lding will be marinstances been enforced, but they were ex- red, and, since the defendant cannot be re ceptions to the general rule, and are clearly quired to do that which his pecuniary constated by Mr. Justice Miller in Ross v. dition forbids, he can be negatively required Railroad Co., 1 Woolw. 26, as follows: "(1) to specifically perform the contract by comIn each case the building was to be done pelung him to allow the plaintiff to take upon the land of the person who agreed to the necessary stone to complete the builddo it. (2) The consideration for the agree ing. It is a fund:umental principle that equiment, in every instance, was the sale or ty will not decree the specific performance conveyance of the land on which the build- of a contract unless the undertaking to be ing was to be erected, and the plaintiff had enforced is founded upon a valuable conalready, by such conveyance on his part, sideration, moving from the party in whose executed the contract. (3) In all of them behalf the performance is sought. Pom. the building was in some way essential to Spec. Perf. § 57. The contract which is the use, or contributory to the value, of the sought to be enforced is under seal, and this adjoining land belonging to the plaintiff." constitutes primary evidence of a consideraThe prayer of the complaint is for the spe- tion. 1 Hill's Code, $ 753. It is sufficient, cific performance of the building contract, however, if some profit is to inure to the provided it could be granted. But the de promisor, or some detriment to be sustained cree does not fully comply with the prayer. by the prornisee. Wat. Spec. Perf. $ 188 If it had, there might have been just The record shows that the contract was reason for

reversal. The


awarded to the defendant, and that plainshows that the stone which defendant tiff has voluntarily advanced to him a large agreed to furnish is of a peculiar kind, sum in excess of the amount it would have color, quality, and texture, and that no been compelled to pay under the contract other stone of like character can be pro- as the work advanced. The defendant nav. cured; that he had furnished such stone to ing received the payment, he now ought build about two-thirds of the walls, and, not to complain or say there is no consideraif plaint. I cannot procure a sufficient quan- tion for the stone necessary to complete the tity of the same kind to complete the work, building. The plaintiff has already paid for it will be necessary to use other stone, and sucu stone, and the defendant ought not to thus destroy the beauty and harmony of its object to its taking the necessary quantity, building, or the walls must be taken down, since the defendant's pecuniary condition and rebuilt with other stone; that defendant will not permit him to supply it. is insolvent, and therefore unable to com- The record further shows that defendant plete his contract, although he has received has some derricks which he uses at his nearly the whole consideration therefor. quarry and at the church building for hoistUnder this state of facts, can a court of ing stone, which the decree provides the equity decree a partial performance, so as plaintiff may use. The stone cannot be tak. to carry out as near as possible the original en from the quarry, loaded upon cars, or intent of the parties? The contract was to placed in the building without the use of furnish the stone and other material, and these or similar machines; and, since the de erect the walls. The defendant's pecuniary fendant has them, he is contributing no condition precludes a specific performance of more than his share when required to perthat part of his contract which required mit the use of them by plaintiff. Such use, him to furnish other necessary material, and however, does not mean their destruction, do the labor, if such a decree were possible, and they must be returned in as good con(Pom. Spec. Perf. & 293;) but, if he be in- dition as when received, the usual wear capacitated from performing it in the pre- thereof excepted. The recorder of conveycise terms, the court will, if it is possible, ances of Benton county is enjoined from re decree a specific execution according to its ceiving for record any conveyance of or insubstance, by making such variation from cumbrance upon the quarry premises. An unessential particulars as the circumstances Injunction will not usually lie against a minof the case require or permit, (Id. $ 297.) isterial officer to restrain him from doing


that which the law requires as a part of his port of himself and family, and, without her duty, but, since he has made default, it must knowledge or solicitation, wrote her name be presumed that he acquiesces in the de in the deed himself as grantee, and delivcree. Because the contract has proved un- ered it to her, and this was sufficient to conprofitable to the defendant is no reason it vey the title as against him and his heirs, should not be enforced as far as practicable. and, in our opinion, requires an affirmance It was fairly entered into, and each party of the judgment. believed it could be completed for the consideration agreed upon, and, the court having granted such relief as was equitable under the circumstances of we case, its decree is

FOSHIER v. NARVER. affirmed.

(Supreme Court of Oregon. July 31, 1893.) ACTION ON FOREIGN JUDGMENT-SERVICE OF


1. In an action on a foreign judgment, ev. JENNINGS V. JENNINGS et al.

idence that defendant's name is John Narver, (Supreme Court of Oregon. July 31, 1893.)

and that the summons in the action in which

judgment was rendered, and which was read DEED-FILLING BLANKS-DELIVERY.

to him, ran against P. J. Narver, and that, Where the owner of land gives a deed therefore, he did not appear and answer the thereof to secure a debt, and the grantee there- suit, is insufficient to show that the court was after executes a deed of the land to the debtor without jurisdiction in the original action. with the name of the grantee blank, and the 2. The fact that the note on which judgdebtor fills in the name of his daughter, and ment was rendered was signed P. J. Narver delivers the deed to her, it conveys the title would not affect the question of service, but to her against him and his heirs.

only the liability of defendant, which is not

involved. Appeal from circuit court, Clackamas county; Frank J. Taylor, Judge.

Appeal from circuit court, Yamhill county; Action by Edward T. Jennings against Ad

George H. Burnett, Judge. die C. Jennings and others to establish an

Action by W. E. Foshier against John Interest in certain land. Judgment for de

Narver on a judgment. Judgment for plainfendants. Plaintiff appeals. Affirmed.

tiff. Defendant appeals. Affirmed. V. K. Strode, for appellant D. O. & C.

W. M. Ramsey, for appellant. J. E. MaD. Latourette and Bonham & Holmes, for

gers, for respondent respondent Addie C. Jennings.

LORD, C. J. This is an action upon a

judgment of the district court obtained in PER CURIAM. This is a suit to estab- the state of Iowa. The plaintiff alleges, in Ush plaintiff's right, as heir of Berryman substance, that on the 2d day of September, Jennings, deceased, in certain real estate 1891, in an action wherein William E. Foshheld by the defendant Addie C. Jennings. ler, the plaintiff herein, was plaintiff, and The facts are that on the 7th day of De the defendant, John Narver, was defendant, cember, 1870, Berryman Jennings, the father a judgment was rendered by said court in of the plaintiff, and the said Addie, being favor of this plaintiff, and against the de the owner of the land in controversy, con- fendant, for $675 damages, and for $6 costs veyed it by warranty deed to J. C. Ains- and disbursements, etc. The answer denies worth, as security for the sum of $625. the material allegations of the complaint, and Ainsworth held the title until 1880, when avers that, during all the time for more he concluded to forgive the debt, and re- than 10 years last past, the defendant was, convey the property to Jennings, or such and now is, a resident of the state of Oregon; person as he might designate, and for that that he was not at any time or place or in purpose executed a quitclaim deed, leaving any manner served with notice, summons, the name of the grantee blank, and for- or process in said action prior to the ren. warded it to Jennings, with a letter author- dering of such judgment. The reply denies Izing him to fill in the name of any person the new matter contained in the answer. he might desire as grantee. The complaint Upon issue being thus joined, a trial was avers that the defendant Addie C. Jennings had, resulting in a verdict for plaintiff, and, secretly took possession of the deed soon a judgment being rendered thereon, the deafter its execution, and, without the knowl- fendant appeals. The errors assigned are edge and consent of her father, fraudulent- the giving of certain instructions by the ly, and with intent to defraud ber father court, and the refusal to give ærtain instruc and brothers and sisters, filled in her own tions requested by the defendant. The judgname as grantee, and caused the deed to ment rendered in the Iowa court is founded be recorded. But there is an entire failure on a note made and signed by W. F. Narver of proof to sustain this allegation, and the and P. J. Narver at Ottumwa, Iowa, on facts are, as shown by the evidence, that November 20, 1874, due two years after date, Mr. Jennings, in consideration of love and and payable to J. W. Kitch. The contenaffection, cosired to give the land to his tion for the defendant is: (1) That the service daughte, for the reason that she had con- of process upon him in that case was on the tributed liberally of her earnings to the sup- wrong party; and (2) that the jury bad the right to consider the fact that the note based on the idea that the defendant's tessued on was signed by P. J. Narver, and not timony contradicts the proof of service, be by him, in corroboration of his testimony to cause it shows that the name in the notice that effect.

is not the name of the party served, and The doctrine is now well settled that the hence the service is on the wrong party, constitutional provision that full faith and which he may disregard. But it by no credit shall be given to the judicial proceed- means follows that the wrong party was ings of other states does not preclude in- | served, or that there was no legal service, quiry into the jurisdiction of the court, in because the summons was addressed in a which the judgment was rendered, over the name differing from the name of the de subject-matter, or the parties affected by it, fendant served; as P. J. Narver for John nor into the facts necessary to give such Narver. For all that, the service may be on jurisdiction. Thompson V. Whitman, 18 the right party. The name is a means of Wall. 457; Freem. Judgm. 88 562, 563; Black, identity, but the right party may be served Judgm. 901. A defendant has a right to by a wrong name. It is not the name that is show by proof that he had not in fact been sued, but the person to whom It is applied. served with process, and, as a consequence,

Whether the defendant served was the right that the court never acquired jurisdiction or wrong party, depended, not upon his name, over his person. Knowles v. Coke Co., 19 but whether he was the party lable. SerWall. 58. As the defendant must bring his vice upon a party by a wrong name is a good proof within this rule, it is essential, in de- service, and gives the court jurisdiction. I termining whether his contention is tenable, the party served by a wrong name fails to to understand the facts upon which it is appear and make a defense, or submits to a founded. The transcript of the proceedings judgment by a wrong name, the judgment in the Iowa court shows that the defendant will bind him as effectually as though renin that action was J. or John Narver, and dered in his right name. In proceedings of the same name as the defendant in the this character the defendant may attack the present case. The notice or summons was jurisdiction, and show that he had not in addressed to J. Narver, defendant, and the fact been served, and that, in consequence, return upon it is as follows:

th: court never acquired jurisdiction of his "This notice came into my hand Nov. person. This is the object of the defendant's 7th, 1991, and I hereby certify that I person- testimony. He sought to defeat the jurisally served the same on the within-named diction of the court which pronounced the J. Narver, by reading the same to him, and judgment on which he is sued by proof that offered to deliver him a copy, but he refused he had never been in fact served with proto take it, and waived a copy of the same,

This was the issue to be tried. The in Troy township, Monroe county, Iowa, on return shows that he was personally served, the 7th day of November, 1891. (Signed] and specifies the time and place, and he Daniel McCarty.

admits that he was so served, but says that "I, Daniel McCarty, being first duly sworn, the notice served upon him was addressed depose and say that the above and foregoing to P. J. Narver, and not J. Narver. Process return of the within notice is correct; that served on a man by a wrong name is as I served the same as above set forth. [Signed] really served on him as if it had been served Daniel McCarty.

upon him by his right name. In such case “Subscribed and sworn to before me, this it seems to us that the court acquires juris9th day of November, 1891. Signed this 9th diction over his person, and, unless he ap day of November, 1891. [Seal.) O.B. Foshier, pears and puts in his defense, the court 18 Notary Public."

authorized to proceed to judgment. AssumThe defendant admits that he was in that ing, then, that the notice served upon the county and state at the time and place the defendant ran to the name of J. P. Narver, return shows that he was personally served, it does not follow, as a legal or logical conand that a person came to him then and sequence, that a service of such notice on there, and asked if his name was Narver, J. Narver was service on the wrong party. which he answered in the affirmative; that on the contrary, after the defendant was this person read a notice to him directed to 80 served, if he failed to appear and show P. J. Narver, in an action in which W. E. that the plaintiff was not entitled to relief Foshier was plaintiff and P. J. Narver was against him, because he was the wrong pardefendant, when he told him his name was ty, and not liable, when he had an oppornot P. J. Narver, but John Narver, at which tunity to be heard on that question, the such person wrote or seemed to write some- judgment established the fact that he was thing on a paper. Upon this state of facts the right party, and the plaintiff's right to the defendant contends that, if the notice relief against him. Mr. Van Fleet says: “It served upon him was directed to P. J. Narver John Smith is sued, and service be made perIn a case against P. J. Narver, the service sonally on the wrong John Smith, he must was upon the wrong party, and that he had appear and defend himself. He cannot suc a legal right to disregard it, as the service cessfully fight the officer who seizes his propof such process could give the court no juris- erty on execution by showing that he is diction of his person.

This contention is not the real defendant. The reason is a


very plain one. He was afforded an oppor- 2. Where the children of a decedent take tunity to make that defense before judgment. possession of his land, their holding is adverse The cases all agree on this point. But sup

to persons who claim to be his children by an

other woman, his lawful wife, and that those pose the complaint and summons called for

in possession are illegitimate. George Jones, and John Smith is served;

Multnomah how does that differ from the case just put?

Appeal from circuit court, It is a judicial assertion that the true name

county; E. D. Shattuck, Judge. of the person served is George Jones, and he

Action by Frederick Westenfelder and is afforded an opportunity to appear and

others against Flora E. Green to recover show that his name is not Jones, and that

certain land. Judgment for defendant the plaintiff is entitled to no relief against

Plaintiffs appeal. Affirmed. him. All the plaintiff can possibly do is to Snow & McCamant, for appellants. Emett afford him this opportunity. Perhaps the B. Williams and W. W. Thayer, for respondplaintiff stands ready to show that his true ent. name is George Jones, and that he does wrongfully withhold the relief demanded.

BEAN, J. This action was commenced on A judgment in favor of the plaintiff neces

the 20th day of May, 1890, to recover the sarily establishes his right to the relief given possession of certain real property in the against the person served." Van Fleet,

city of Portland. The facts are that in the Collat. Attack, § 367. It would seem, there

year 1867 one Jacob Westenfelder died infore, that the Iowa court had jurisdiction testate, seised of the property in question, of the defendant, and his contention is not leaving two minor children by a woman tenable. But, however this may be, we come

whom he represented to be his wife, and now to the error assigned upon which the

with whom he lived and cohabited as such reversal of the judgment is sought. The

in Oregon, but who died prior to his death; court below, considering that the testimony

that, shortly after his death, one J. E. Sedof the defendant tended to contradict the

lack was duly appointed guardian of the two proof of service, submitted it to the jury. Oregon children, and in that capacity took The record discloses that counsel for the

possession of the land in controversy, rentdefendant attempted to argue to the jury

ed and collected the rents thereof, paid the that they had a right to consider the fact

taxes and expenses of repairs, making due that the note sued on and set out in the

account of the same, and continued so to Iowa record was signed by P. J. Narver,

act until about the 14th day of June, 1880, and not the defendant, as corroborative of

when, one of the children having died in the the defendant's testimony, contradicting the

mean time, under age and without lineal deproof of service, but the court refused, upon

scendants, the survivor sold and conveyed objection, to allow counsel to so argue. The

the property to the grantor of the defendinstruction asked and refused, and the in

ant, who immediately entered into possesstruction given, assigned as error, are in

sion, and he and the defendant have contended to save and bring up this point. It

tinued in the exclusive adverse possession will be sufficient to say that the court told

ever since. the jury that they "could not consider the

The plaintiffs claimed and attempted to copy of the note sued on as affecting the

show that Jacob Westenfelder, who died question of serving notice.” The only issue

seised of the property in question, was their to be tried was whether the defendant was

father, and had lived in Leopoldshafen, in served with process. How the fact that the

Germany, before coming to America, and note was signed by P. J. Narver contra

while there was married to a woman by dicted the proof of service it is difficult to

the name of Christina Stern, by whom he comprehend. Such fact did not show that

had four children, of whom the plaintiffs the return was false, or that the defendant only survive; that his wife in Germany was was not served with the process. Neither living at the time he was married to, or the note nor the names upon It could throw

commenced living with, the mother of the light upon the question of service, though

two children under whom defendant claims. they might on the lability, which is not now

The issues in the case were therefore twoinvolved. It follows that the judgment must

fold: (1) Whether the plaintiffs were the be affirmed.

heirs at law of the Jacob Westenfelder who died seised of the property in question; and (2) whether the defendant, and those under

whom she claims, had been in the adverse WESTENFELDER et al. . GREEN.

possession of the property for a length of (Supreme Court of Oregon. July 31, 1893.) time sufficient to bar the plaintiffs' claim, ADVERSE POSSESSION AGAINST HEIRS— ADMISSIONS if they were such heirs. The question of OF GUARDIAN.

adverse possession was not, of course, im. 1. Where a guardian, under and by vir portant, unless plaintiffs could show they tue of his appointment, takes possession of were the heirs of the Jacob Westenfelder certain land claimed by his wards, his declarations that he holds the land for third persons

who died seised of the property; nor was are inadmissible to defeat his wards' claims of

the question of their heirship important it Atle by adverse possession.

the defendant and those under whom she claimed had acquired title by adverse pos- could affect the possession taken and held session. The jury returned a general ver- by him under his appointment. In legal etdict in favor of the defendant, but from fect, as against his wards, such declarations their special findings it appears they were would amount to nothing. To suffer a unable to agree as to whether the Jacob guardian by his admission or declaration to Westenfelder, who, it was claimed, emigrat- defeat or affect the title of his wards would. ed from Germany in 1852, was the same It seems to us, open the door for the grossperson who died sedsed of the property in est fraud and injustice. question. It would thus seem that the ver- It is also contended that the entry and dict of the jury must have been based on possession of the Oregon children, as heirs the adverse possession of the defendant and of Westenfelder, was not hostile to the true her predecessors in interest, because they heirs. We take the law to be settled that were unable to agree upon the other issue the entry into possession of lands by one in the case, and therefore, if no error ap- heir or tenant in common is the entry and pears in the record upon the question of possession of all. The one who enters is adverse possession, the judgment must be considered as doing so for himself, as re affirmed; for, if the defendant has acquired gards his own right, and as trustee for the title by that means, all other questions in others. Hart v. Gregg, 10 Watts, 185; Wat. the case become immaterial.

The posses- son v. Gregg, Id. 289; Busw. Lim. 8 235. This sion of Sedlack, the guardian of the two is on the theory that there is a privity of esOregon children and of defendant and her tate between the other owners and the one predecessor in interest, is conceded to have in possession, but in this case there is no been exclusive and continuous from the privity of estate between the plaintiffs and death of Westenfelder to the commence the Oregon children, but, on the contrary, ment of this suit, but the contention for their interests are antagonistic and adverse. plaintiffs is that the possession of the minor If the plaintiffs' theory is true, the Oregon children and their guardian was not ad- children were not heirs at all, but strangers verse as to them. As tending to show the to the title, and entered into possession as character of Sedlack's holding, the plain- mere trespassers, in a mistaken belief of tiffs offered to prove that while he was their heirship; and hence there is no room guardian of the Oregon children, and in pos- in this case for the application of the rule session, he stated thrat he was holding the invoked by plaintiffs. If the Oregon chil. property for the children of Jacob Westen- dren were in fact heirs, then their entry felder in Germany; but the court refused was in their own right; it, on the other to admit the evidence, and this ruling is as- hand, they were not heirs, then their entry signed as error.

was the same as that of any other stranger The general rule is well settled that the who might enter under a claim of title. -Seddeclarations of one in possession of real lack was not appointed guardian for all the property, characterizing his possession, are heirs of Jacob Westenfelder, but of the Oreadmissible in evidence against him, and gon children by name, and his entry was those claiming under him, where title is their entry, and his possession was their asserted by adverse possession. 1 Rice, Ev. possession, made and held under a claim § 423. But this action is not against Sed- of right, and adverse to all the world; and, lack, or any one claiming under him. He

although they may have had no title or color was not in possession of the property claim- of title at the time of their entry, it was ing any right in himself, but in a represent- made under a claim of right, and would ative capacity, and under his appointment ripen into a title by adverse possession. It as guardian, and therefore his possession seems to us, therefore, that the other queswas, in legal contemplation, the possession tions suggested become wholly immaterial, of his wards. A tenant in possession can- and that the judgment must be affirmed. not by his admissions injure the title of his landlord, (Hurley v. Lockett, 72 Tex. 261, 12 S. W. Rep. 212;) nor can a guardian the title of his wards. Having accepted the

BUTTE HARDWARE CO. V. SCHWAB trust, and entered into possession of the

et al. property to carry out its provisions, he (Supreme Court of Montana. Sept. 11, 1893.) could not dispute the title of his wards, or CONSTRUCTIVE Trusts—ESTOPPEL-CORPORATIONS assert that he is holding the property in

-POWERS-QUIETING TITLE. any other capacity so long as that relation

1. Where a tenant in common has conship existed, nor could he change the char

veyed an undivided interest in a mining claim

to his cotenants, and they have obtained a patacter of his holding by any admissions or ent, and afterwards conveyed to a third perdeclarations he might make. Under the son, who was not a bona fide purchaser, the facts, the law determined for whom he was

latter's position is not superior to that of his

grantors, and where they admit that they held holding the property, and any statement he the undivided interest in trust for their cotenmight have made to the contrary could not ant the trust will be declared, and a convey. alter these facts, nor justify any different

ance to him decreed. Per De Witt, J. determination.

2. Plaintiff, the owner of an undivided inThe law fixed his relation

terest in a mining claim, conveyed by a void to the property, and no declaration of his

deed to its cotenants, who, on the supposition

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