Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-07
WeotherfOrd V. Mckay, Lincoln
County.


I. X. Weatherford, respondent, V
Robert Mckay, appellant. Appea
from the circuit court for Lincolr
oonntv. Hon. L. T. Harris, Judge
Submitted on briefs. McFadden &
prvson and Percy R. Kelly on briet
for respondent. Robert A. Miller anC
" H. Fowler on brief for appellant
Moore, ]. Reversed.
Decided September 26, 1911.
This is an action to recover the
nossession of real property witt
damages for withholding the same
The cause being at issue was tried
without a Jury and findings of fac
we're made by the court in substance
as follows: That on september 3
1900 Luther V. Fox made a hone
stead entry for 100 acres of land in
Tincoln cednty, describing the prem
iSas pad on January 20, 1902 he Sc
c.. ed from the receiver of the local
land office a final certificate there
for; that on October 9, 1907, Fox
executed to plaintiff a deed to the
land; that prior to the commence
ment of this action the defendant
was and ever since has been in the
possession of the real property;
that as against plaintiff, the defen-
dant has no right, title or interest in
or to the land and his occupancy
thereof Is unlawful; that plaintiff
has not sustained any damages by
reason of the acts complained of:
that subject to the paramount title
of the United States, plaintiff is the
owner in fee Of the premises and en-
titled to the immediate possession
thereof; and that testimony was re-
ceived tending to show that the reg
lister and receiver of the local land
office had. recommended that Fox's
entry be cancelled but no evidence
was offered to prove that the Land
Department of the United States had
annulled the entry. Based on these
findings and the conclusions of law
deducible therefrom, judgment was
given for the restitution of the land
and the defendant appeals.
Moore, ]. No transcript of the tes-
timony has been brought up and the
only question to be considered is
whether or not the findings of fact
support the Judgment.
Our statute, regulating the prac-
uce in ejectment contains clauses as
follows: ANY person who has a
legal estate in real property and a
present right to the possession there
OF may recover such possession with
damages for Withholding the same,
by an action at law" L. o. L. Sec.
S25. THE judgment therein shall be
conclusive as to the estate in such
property and the right to the pos
session thereof, so far as the same
Is thereby determined, upon the party
against whom the same is given and
against all persons claiming from,
through or under such party after
the commencement of such action"
Id. Sec 337 In Hoover C. King 43
Ore. 2S1, 2S4, in referring to the
enactment quoted Mr.. Justice Bean
says: 1t is thus apparent that the
statute contemplates that the title to
land may be tried in an action to re-
cover possession thereof, and that, so
far as the same is tried and deter
mined, the judgment therein is con-
elusive upon the party against whom
it is given"
Issue having been joined respecting
the title to the land and the founda-
tion OF that title having been chal-
lenged in the manner indicated, can
the Judgment be upheld?
At the common law the plaintiff in
an action of ejectment was required
TO show valid legal title to the de-
manded land at the time of the dem
ise laid in the declaration and prior
to the commencement of the action,
a mere equitable interest in real
property being insufficient for that
purpose. 10 A. & E. Ency. cd ed.)
4S2; Fem v. Holme 21 How. 4S1;
Hooper V. Scheimer, 29 How. 295.
Ihis ancient rule has been changed
in some states by statute and in 9TH
ers by judicial Interpretation so as
10 permit an action of ejectment to
De supported upon proof of plain
uns equitable estate in land when
the evidence showed that he had a
right to the immediate possession of
the premises. Warvelle Eject. Sec.
z55 The alteration referred to
seemed to be necessitated by the pc
culiar conditions attending the pion-
eer settlements upon the public lands
OF the Pacific Coast Coryell " Cain
l6 Cal. 567.
In new country, the speedy set
uement of which has been induced
oy the discovery of precious metals,
or by a realization of the immense
wealth of timber, or a knowledge
that certain lands will Immediately
become valuable as a townsite, or
lor any other purpose, covetousness
OIten prompts others to obtain. if