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J. W. Whalley and R. S. Strahan, for appellant. S. H. Gruber, for respondents.


MOORE, J., (after stating the facts.) specific performance of a building contract will rarely be enforced (Pom. Spec. Perf. § 23) upon the theory, as announced by Sir Loyd Kenyon, M. R., in Errington V. Aynesly, 2 Brown, Ch. 341, "that, if one person would not build, another might be found who would," and for the reason given by Lord Thurlow in Lucas v. Commerford, 3 Brown, Ch. 166, "that the court could not undertake to superintend the construction of a building." Such contracts have in some instances been enforced, but they were exceptions to the general rule, and are clearly stated by Mr. Justice Miller in Ross v. Railroad Co., 1 Woolw. 26, as follows: “(1) In each case the building was to be done upon the land of the person who agreed to do it. (2) The consideration for the agreement, in every instance, was the sale or conveyance of the land on which the building was to be erected, and the plaintiff had already, by such conveyance on his part, executed the contract. (3) In all of them the building was in some way essential to the use, or contributory to the value, of the adjoining land belonging to the plaintiff." The prayer of the complaint is for the specific performance of the building contract, provided it could be granted. But the decree does not fully comply with the prayer. If it had, there might have been just reason for its reversal. The record shows that the stone which defendant agreed to furnish is of a peculiar kind, color, quality, and texture, and that no other stone of like character can be procured; that he had furnished such stone to build about two-thirds of the walls, and, if plaint cannot procure a sufficient quantity of the same kind to complete the work, it will be necessary to use other stone, and thus destroy the beauty and harmony of its building, or the walls must be taken down, and rebuilt with other stone; that defendant is insolvent, and therefore unable to complete his contract, although he has received nearly the whole consideration therefor. Under this state of facts, can a court of equity decree a partial performance, so as to carry out as near as possible the original intent of the parties? The contract was to furnish the stone and other material, and erect the walls. The defendant's pecuniary condition precludes a specific performance of that part of his contract which required him to furnish other necessary material, and do the labor, if such a decree were possible, (Pom. Spec. Perf. § 293;) but, if he be incapacitated from performing it in the precise terms, the court will, if it is possible, decree a specific execution according to its substance, by making such variation from unessential particulars as the circumstances of the case require or permit, (Id. § 297.)

Courts will not generally decree the specific performance of a contract to deliver personal property, (Wat. Spec. Perf. § 16;) and yet it was held in Hapgood v. Rosenstock, 23 Fed. Rep. 86, that "agreements for the assignment of a patent, and for the delivery of chattels which can be supplied by the vendor alone, are among those which will be specifically enforced." This decision was approved by the supreme court of Massachusetts in Adams v. Messenger, 17 N. E. Rep. 491. Applying these rules to the case at bar, the defendant has stone which cannot be procured from any other quarry, and plaintiff must use it, or the harmony of its bu lding will be marred, and, since the defendant cannot be required to do that which his pecuniary condition forbids, he can be negatively required to specifically perform the contract by compelung him to allow the plaintiff to take the necessary stone to complete the building. It is a fundamental principle that equity will not decree the specific performance of a contract unless the undertaking to be enforced is founded upon a valuable consideration, moving from the party in whose behalf the performance is sought. Pom. Spec. Perf. § 57. The contract which is sought to be enforced is under seal, and this constitutes primary evidence of a consideration. 1 Hill's Code, § 753. It is sufficient, however, if some profit is to inure to the promisor, or some detriment to be sustained by the promisee. Wat. Spec. Perf. § 188. The record shows that the contract was awarded to the defendant, and that plaintiff has voluntarily advanced to him a large sum in excess of the amount it would have been compelled to pay under the contract as the work advanced. The defendant having received the payment, he now ought not to complain or say there is no consideration for the stone necessary to complete the building. The plaintiff has already paid for such stone, and the defendant ought not to object to its taking the necessary quantity, since the defendant's pecuniary condition will not permit him to supply it.

The record further shows that defendant has some derricks which he uses at his quarry and at the church building for hoisting stone, which the decree provides the plaintiff may use. The stone cannot be taken from the quarry, loaded upon cars, or placed in the building without the use of these or similar machines; and, since the defendant has them, he is contributing no more than his share when required to permit the use of them by plaintiff. Such use, however, does not mean their destruction, and they must be returned in as good condition as when received, the usual wear thereof excepted. The recorder of conveyances of Benton county is enjoined from receiving for record any conveyance of or incumbrance upon the quarry premises. An Injunction will not usually lie against a ministerial officer to restrain him from doing

that which the law requires as a part of his duty, but, since he has made default, it must be presumed that he acquiesces in the decree. Because the contract has proved unprofitable to the defendant is no reason it should not be enforced as far as practicable. | It was fairly entered into, and each party believed it could be completed for the consideration agreed upon, and, the court having granted such relief as was equitable under the circumstances of the case, its decree is affirmed.

JENNINGS v. JENNINGS et al. (Supreme Court of Oregon. July 31, 1893.)

DEED-FILLING BLANKS-Delivery. Where the owner of land gives a deed thereof to secure a debt, and the grantee thereafter executes a deed of the land to the debtor with the name of the grantee blank, and the debtor fills in the name of his daughter, and delivers the deed to her, it conveys the title to her against him and his heirs.

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

Action by Edward T. Jennings against Addie C. Jennings and others to establish an Interest in certain land. Judgment for defendants. Plaintiff appeals. Affirmed.

V. K. Strode, for appellant. D. C. & C. D. Latourette and Bonham & Holmes, for respondent Addie C. Jennings.

PER CURIAM. This is a suit to establish plaintiff's right, as heir of Berryman Jennings, deceased, in certain real estate held by the defendant Addie C. Jennings. The facts are that on the 7th day of De cember, 1870, Berryman Jennings, the father of the plaintiff, and the said Addie, being the owner of the land in controversy, conveyed it by warranty deed to J. C. Ainsworth, as security for the sum of $625. Ainsworth held the title until 1880, when he concluded to forgive the debt, and reconvey the property to Jennings, or such person as he might designate, and for that purpose executed a quitclaim deed, leaving the name of the grantee blank, and forwarded it to Jennings, with a letter authorizing him to fill in the name of any person he might desire as grantee. The complaint avers that the defendant Addie C. Jennings secretly took possession of the deed soon after its execution, and, without the knowledge and consent of her father, fraudulently, and with intent to defraud her father and brothers and sisters, filled in her own name as grantee, and caused the deed to be recorded. But there is an entire failure of proof to sustain this allegation, and the facts are, as shown by the evidence, that Mr. Jennings, in consideration of love and affection, desired to give the land to his daughter, for the reason that she had contributed liberally of her earnings to the sup

port of himself and family, and, without her knowledge or solicitation, wrote her name in the deed himself as grantee, and delivered it to her, and this was sufficient to convey the title as against him and his heirs, and, in our opinion, requires an affirmance of the judgment.


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


1. In an action on a foreign judgment, evidence that defendant's name is John Narver, and that the summons in the action in which judgment was rendered, and which was read to him, ran against P. J. Narver, and that, therefore, he did not appear and answer the suit, is insufficient to show that the court was without jurisdiction in the original action.

2. The fact that the note on which judgment was rendered was signed P. J. Narver would not affect the question of service, but only the liability of defendant, which is not involved.

Appeal from circuit court, Yamhill county; George H. Burnett, Judge.

Action by W. E. Foshier against John Narver on a judgment. Judgment for plain

tiff. Defendant appeals. Affirmed.

W. M. Ramsey, for appellant. J. E. Magers, for respondent.

LORD, C. J. This is an action upon Judgment of the district court obtained in the state of Iowa. The plaintiff alleges, in substance, that on the 2d day of September, 1891, in an action wherein William E. Foshier, the plaintiff herein, was plaintiff, and the defendant, John Narver, was defendant, a judgment was rendered by said court in favor of this plaintiff, and against the defendant, for $675 damages, and for $6 costs and disbursements, etc. The answer denies the material allegations of the complaint, and avers that, during all the time for more than 10 years last past, the defendant was, and now is, a resident of the state of Oregon; that he was not at any time or place or in any manner served with notice, summons, or process in said action prior to the rendering of such judgment. The reply denies the new matter contained in the answer. Upon issue being thus joined, a trial was had, resulting in a verdict for plaintiff, and, a judgment being rendered thereon, the defendant appeals. The errors assigned are the giving of certain instructions by the court, and the refusal to give certain instructions requested by the defendant. The judgment rendered in the Iowa court is founded on a note made and signed by W. F. Narver and P. J. Narver at Ottumwa, Iowa, on November 20, 1874, due two years after date, and payable to J. W. Kitch. The contention for the defendant is: (1) That the service of process upon him in that case was on the wrong party; and (2) that the jury had the

right to consider the fact that the note sued on was signed by P. J. Narver, and not by him, in corroboration of his testimony to that effect.

The doctrine is now well settled that the constitutional provision that full faith and credit shall be given to the judicial proceedings of other states does not preclude inquiry into the jurisdiction of the court, in which the judgment was rendered, over the subject-matter, or the parties affected by it, nor into the facts necessary to give such jurisdiction. Thompson V. Whitman, 18 Wall. 457; Freem. Judgm. §§ 562, 563; Black, Judgm. § 901. A defendant has a right to show by proof that he had not in fact been served with process, and, as a consequence, that the court never acquired jurisdiction over his person. Knowles v. Coke Co., 19 Wall. 58. As the defendant must bring his proof within this rule, it is essential, in determining whether his contention is tenable, to understand the facts upon which it is founded. The transcript of the proceedings in the Iowa court shows that the defendant in that action was J. or John Narver, and the same name as the defendant in the present case. The notice or summons was addressed to J. Narver, defendant, and the return upon it is as follows:

"This notice came into my hand Nov. 7th, 1891, and I hereby certify that I personally served the same on the within-named J. Narver, by reading the same to him, and offered to deliver him a copy, but he refused to take it, and waived a copy of the same, in Troy township, Monroe county, Iowa, on the 7th day of November, 1891. [Signed] Daniel McCarty.

"I, Daniel McCarty, being first duly sworn, depose and say that the above and foregoing return of the within notice is correct; that I served the same as above set forth. [Signed] Daniel McCarty.

"Subscribed and sworn to before me, this 9th day of November, 1891. Signed this 9th day of November, 1891. [Seal.] C. B. Foshier, Notary Public."

The defendant admits that he was in that county and state at the time and place the return shows that he was personally served, and that a person came to him then and there, and asked if his name was Narver, which he answered in the affirmative; that this person read a notice to him directed to P. J. Narver, in an action in which W. E. Foshier was plaintiff and P. J. Narver was defendant, when he told him his name was not P. J. Narver, but John Narver, at which such person wrote or seemed to write something on a paper. Upon this state of facts the defendant contends that, if the notice served upon him was directed to P. J. Narver In a case against P. J. Narver, the service was upon the wrong party, and that he had a legal right to disregard it, as the service of such process could give the court no jurisdiction of his person. This contention is

based on the idea that the defendant's testimony contradicts the proof of service, be cause it shows that the name in the notice is not the name of the party served, and hence the service is on the wrong party, which he may disregard. But it by no means follows that the wrong party was served, or that there was no legal service, because the summons was addressed in a name differing from the name of the de fendant served; as P. J. Narver for John Narver. For all that, the service may be on the right party. The name is a means of identity, but the right party may be served by a wrong name. It is not the name that is sued, but the person to whom it is applied. Whether the defendant served was the right or wrong party, depended, not upon his name, but whether he was the party liable. Service upon a party by a wrong name is a good service, and gives the court jurisdiction. If the party served by a wrong name fails to appear and make a defense, or submits to a judgment by a wrong name, the judgment will bind him as effectually as though rendered in his right name. In proceedings of this character the defendant may attack the jurisdiction, and show that he had not in fact been served, and that, in consequence, the court never acquired jurisdiction of his person. This is the object of the defendant's testimony. He sought to defeat the jurisdiction of the court which pronounced the judgment on which he is sued by proof that he had never been in fact served with process. This was the issue to be tried. return shows that he was personally served, and specifies the time and place, and he admits that he was so served, but says that the notice served upon him was addressed to P. J. Narver, and not J. Narver. Process served on a man by a wrong name is as really served on him as if it had been served upon him by his right name. In such case it seems to us that the court acquires jurisdiction over his person, and, unless he ap pears and puts in his defense, the court is authorized to proceed to judgment. Assuming, then, that the notice served upon the defendant ran to the name of J. P. Narver, it does not follow, as a legal or logical consequence, that a service of such notice on J. Narver was service on the wrong party. On the contrary, after the defendant was so served, if he failed to appear and show that the plaintiff was not entitled to relief against him, because he was the wrong party, and not liable, when he had an opportunity to be heard on that question, the judgment established the fact that he was the right party, and the plaintiff's right to relief against him. Mr. Van Fleet says: "If John Smith is sued, and service be made personally on the wrong John Smith, he must appear and defend himself. He cannot successfully fight the officer who seizes his property on execution by showing that he is not the real defendant. The reason is a


very plain one. He was afforded an opportunity to make that defense before judgment. The cases all agree on this point. But suppose the complaint and summons called for George Jones, and John Smith is served; how does that differ from the case just put? It is a judicial assertion that the true name of the person served is George Jones, and he is afforded an opportunity to appear and show that his name is not Jones, and that the plaintiff is entitled to no relief against him. All the plaintiff can possibly do is to afford him this opportunity. Perhaps the plaintiff stands ready to show that his true name is George Jones, and that he does wrongfully withhold the relief demanded. A judgment in favor of the plaintiff necessarily establishes his right to the relief given against the person served." Van Fleet, Collat. Attack, § 367. It would seem, there fore, that the Iowa court had jurisdiction of the defendant, and his contention is not tenable. But, however this may be, we come now to the error assigned upon which the reversal of the judgment is sought. The court below, considering that the testimony of the defendant tended to contradict the proof of service, submitted it to the jury. The record discloses that counsel for the defendant attempted to argue to the jury that they had a right to consider the fact that the note sued on and set out in the Iowa record was signed by P. J. Narver, and not the defendant, as corroborative of the defendant's testimony, contradicting the proof of service, but the court refused, upon objection, to allow counsel to so argue. The instruction asked and refused, and the instruction given, assigned as error, are intended to save and bring up this point. It will be sufficient to say that the court told the jury that they "could not consider the copy of the note sued on as affecting the question of serving notice." The only issue to be tried was whether the defendant was served with process. How the fact that the note was signed by P. J. Narver contradicted the proof of service it is difficult to comprehend. Such fact did not show that the return was false, or that the defendant was not served with the process. Neither the note nor the names upon it could throw light upon the question of service, though they might on the liability, which is not now involved. It follows that the judgment must be affirmed.


1. Where a guardian, under and by virtue of his appointment, takes possession of certain land claimed by his wards, his declarations that he holds the land for third persons are inadmissible to defeat his wards' claims of title by adverse possession.

2. Where the children of a decedent take possession of his land, their holding is adverse to persons who claim to be his children by another woman, his lawful wife, and that those in possession are illegitimate.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Frederick Westenfelder and others against Flora E. Green to recover certain land. Judgment for defendant.

Plaintiffs appeal. Affirmed.

Snow & McCamant, for appellants. Emett B. Williams and W. W. Thayer, for respondent.

BEAN, J. This action was commenced on the 20th day of May, 1890, to recover the possession of certain real property in the city of Portland. The facts are that in the year 1867 one Jacob Westenfelder died intestate, seised of the property in question, leaving two minor children by a woman whom he represented to be his wife, and with whom he lived and cohabited as such in Oregon, but who died prior to his death; that, shortly after his death, one J. E. Sedlack was duly appointed guardian of the two Oregon children, and in that capacity took possession of the land in controversy, rented and collected the rents thereof, paid the taxes and expenses of repairs, making due account of the same, and continued so to act until about the 14th day of June, 1880, when, one of the children having died in the mean time, under age and without lineal descendants, the survivor sold and conveyed the property to the grantor of the defendant, who immediately entered into possession, and he and the defendant have continued in the exclusive adverse possession ever since.

The plaintiffs claimed and attempted to show that Jacob Westenfelder, who died seised of the property in question, was their father, and had lived in Leopoldshafen, in Germany, before coming to America, and while there was married to a woman by the name of Christina Stern, by whom he had four children, of whom the plaintiffs only survive; that his wife in Germany was living at the time he was married to, or commenced living with, the mother of the two children under whom defendant claims. The issues in the case were therefore twofold: (1) Whether the plaintiffs were the 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 possession of the property for a length of time sufficient to bar the plaintiffs' claim, if they were such heirs. The question of adverse possession was not, of course, important, unless plaintiffs could show they were the heirs of the Jacob Westenfelder who died seised of the property; nor was the question of their heirship important if the defendant and those under whom she

claimed had acquired title by adverse possession. The jury returned a general verdict in favor of the defendant, but from their special findings it appears they were unable to agree as to whether the Jacob Westenfelder, who, it was claimed, emigrated from Germany in 1852, was the same person who died seised of the property in question. It would thus seem that the verdict of the jury must have been based on the adverse possession of the defendant and her predecessors in interest, because they were unable to agree upon the other issue in the case, and therefore, if no error appears in the record upon the question of adverse possession, the judgment must be affirmed; for, if the defendant has acquired title by that means, all other questions in the case become immaterial. The possession of Sedlack, the guardian of the two Oregon children and of defendant and her predecessor in interest, is conceded to have been exclusive and continuous from the death of Westenfelder to the commencement of this suit, but the contention for plaintiffs is that the possession of the minor children and their guardian was not adverse as to them. As tending to show the character of Sedlack's holding, the plaintiffs offered to prove that while he was guardian of the Oregon children, and in possession, he stated that he was holding the property for the children of Jacob Westenfelder in Germany; but the court refused to admit the evidence, and this ruling is assigned as error.

The general rule is well settled that the declarations of one in possession of real property, characterizing his possession, are admissible in evidence against him, and those claiming under him, where title is asserted by adverse possession. 1 Rice, Ev. § 423. But this action is not against Sedlack, or any one claiming under him. He was not in possession of the property claiming any right in himself, but in a representative capacity, and under his appointment as guardian, and therefore his possession was, in legal contemplation, the possession of his wards. A tenant in possession cannot 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 trust, and entered into possession of the property to carry out its provisions, he could not dispute the title of his wards, or assert that he is holding the property in any other capacity so long as that relationship existed, nor could he change the character of his holding by any admissions or declarations he might make. Under the facts, the law determined for whom he was holding the property, and any statement he might have made to the contrary could not alter these facts, nor justify any different determination. The law fixed his relation to the property, and no declaration of his

could affect the possession taken and held by him under his appointment. In legal effect, as against his wards, such declarations would amount to nothing. To suffer a guardian by his admission or declaration to defeat or affect the title of his wards would. it seems to us, open the door for the grossest fraud and injustice.

It is also contended that the entry and possession of the Oregon children, as heirs of Westenfelder, was not hostile to the true heirs. We take the law to be settled that the entry into possession of lands by one heir or tenant in common is the entry and possession of all. The one who enters is considered as doing so for himself, as regards his own right, and as trustee for the others. Hart v. Gregg, 10 Watts, 185; Watson v. Gregg, Id. 289; Busw. Lim. § 235. This is on the theory that there is a privity of estate between the other owners and the one in possession, but in this case there is no privity of estate between the plaintiffs and the Oregon children, but, on the contrary, their interests are antagonistic and adverse. If the plaintiffs' theory is true, the Oregon children were not heirs at all, but strangers to the title, and entered into possession as mere trespassers, in a mistaken belief of their heirship; and hence there is no room in this case for the application of the rule invoked by plaintiffs. If the Oregon children were in fact heirs, then their entry was in their own right; if, on the other hand, they were not heirs, then their entry was the same as that of any other stranger who might enter under a claim of title. -Sedlack was not appointed guardian for all the heirs of Jacob Westenfelder, but of the Oregon children by name, and his entry was their entry, and his possession was their possession, made and held under a claim of right, and adverse to all the world; and, although they may have had no title or color of title at the time of their entry, it was made under a claim of right, and would ripen into a title by adverse possession. It seems to us, therefore, that the other questions suggested become wholly immaterial, and that the judgment must be affirmed.



1. Where a tenant in common has conveyed an undivided interest in a mining claim to his cotenants, and they have obtained a patent, and afterwards conveyed to a third person, who was not a bona fide purchaser, the latter's position is not superior to that of his grantors, and where they admit that they held the undivided interest in trust for their cotenant the trust will be declared, and a conveyance to him decreed. Per De Witt, J.

2. Plaintiff, the owner of an undivided interest in a mining claim, conveyed by a void deed to its cotenants, who, on the supposition

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