Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-12

in Weston v. Stoddard, 1877 N, Y. 119,
| 1913, under a statute almost identical
with ours, it was held that one OF
several tenants in common could
maintain an action for partition, al
| though his co-tenants were in pos
session, holding adversely, it appear
ing that the adverse possession had
not been in force a sufficient length
of time to extinguish plaintiffs title.
In deciding that case Mr.. Justice
Maynard, in referring to their stat
ute, says Both at common law
and under the Revised Statutes it
was the well settled rule of practice
in actions for partition to withhold
relief, if it appeared that the title or
| the right of possession of the plain
tiff was disputed, or that he had
been actually ousted by his co-ten-
ants. 1t was not always clear what
conduct would be considered in law
sufficient to effect an custer, but the
current of authority in this state
prior to 1880 was uniform and un-
broken that when a disseisin had
been established, although for a per-
iod less than that required to ex-
|
mon of real property must wait un-
til he had regained possession in an
action or proceeding at law before
he could insist upon a division of the
property between himself and his CO.
tenants. The two remedies could
not be enforced in the same action.
There was but one exception to the
rule, and that was that where the
original jurisdiction of the action
was purely equitable, and it had once
rightfully attached, it should be
made effectual for complete relief,
even if it did require the determin-
alton of questions of title to real
property and of conflicting claims to
it's possession. The exist
ence of this rule was not due to the
indisposition of courts of equity to
determine issues which we're pecul-
iarly within the province of courts
of law 1t was rather the result Of
the exceptional character of the
method of procedure in partition
cases, and had its origin in the prac-
tice of the common law tribunals,
which for a long time had exclusive
jurisdiction in this class of actions.
The writ of partition was a common
law process, and was an available
remedy, at least, between co-parcen-
ers for over three hundred years be-
fore courts of chancery assumed jur-
isdiction of the subject matter. 1t
was returnable before judges or
commissioners, specially appointed
to head the cause, and if, upon the re-
turn Of the writ, it was shown that
the plaintiffs title was contested, or
that the lands were held adversely,
the proceedings were dismissed, or
suspended, until the question of title
had been otherwise determined.
This course was rendered necessary
because trial by jury of an issue in
volving the title to real property was
a matter of common right, of which
the citizen could not be deprived by
the institution of a proceeding in
which that form of trial was not per-
missible. When, by change
of the fundamental law of the state,
the supreme court was empowered to
administer both legal and equitable
remedies the necessity for the eX-
istence Of this rule was but partially
obviated. The essential nature of
actions was unchanged. Partition
suits were still regarded as cases of
purely equitable cognizance, upon
the trial of which jury could not
be demanded as right, and, if per-
mitted to be present, their verdict
did not conclude the Judgment of the
court upon the issues submitted to
them. AS the constitution secured
inviolate the right of trial by jury
in all cases where it had Heretofore
been enjoyed, it was apparent that
questions of title could not be tried
in those cases without some enabling
legislation"
The distinction between actions at
law and suits in equity was early
abolished in the Empire State.
HOward's N. Y. Code I'D Ed 1862
Sec. So. This statute still remains in
force. Gilbert's Ann. Code I'D Ed.
1S1O) Sec. 1899. In the partition of
real property in that state an issue
of fact may be tried by jury. Id.
Sec. 1914. In Oregon, however, a
characteristic difference between ac-
tions at law and suits in equity OBJ
teeAAio Nl4' W. IL OGOO. L. OOJ) anu
though such causes arising in a cir
cult are tried before the same Judge,
the courts over which he presides
are essentially different forums.
State ex rel V. Lord, % Or. 49S, 532;
Willis V. Crawford, 3S Or. 522, $50;
Abernethy v Orton, AZ Or. 437, 441 /;
Cohn v. Wemme, AZ Or. LAG, $50.
In the case at bar the several an
swers denied plaintiffs possession of
any part of the premises and averred
an adverse occupancy of distinct par
cells of land by the several defen-
dants, thereby challenging the equit-
able jurisdiction of the court The
testimony offered on this issue tends
to support the defendants theory and
defeats the jurisdiction relied upon
by plaintiff, thus showing that they
were entitled to a jury trial to deter
mine their alleged rights, and such
being the case no error was COM
mitted in dismissing the suit.
1t follows that the decree should
hn a ffirpnad ond a. fe,