Newsom v. Greenwood , 4 Or. 119 ( 1871 )

By the Court,

‘McArthur, J.:

Two questions are presented in this case: the one touching the jurisdiction of the Circuit Court; the other, touching the sufficiency of the testimony. After issue joined, and while this cause was pending in the Court below, the amendment to § 93 of the Code,—-which amendment was couched in the following language: “A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleadings without leaving it insufficient. When the facts stated in the pleadings present a case cognizable in a Court of law, the case shall proceed as an action at law. But if the facts stated, either by the plaintiff or defendant, show a case requiring the interposition of a Court of equity, the case shall proceed as a suit in equity” (Laws of Oregon, 1866, p. 12),— was further amended so as to read as follows: “Section 93. A material allegation in a pleading is one essential to a claim or defense, and which could not be stricken from the pleading without leaving it insufficient as to such claim or defense.” (Civ. Code, § 93.)

This case was commenced on the law side of the Court, and the answer developing an equitable defense it was transferred to the equity side, and then tried, the transfer being ordered and the judgment rendered after the repeal of that part of § 93 which established such rule of practice. Wherefore it is contended by counsel that the Court had no jurisdiction to transfer or try the cause, for that the proceedings were inchoate at the time of such repeal, and there was no saving clause as to the causes pending.

As a general rule, it is true that the effect of a repealing statute is to obliterate the statute repealed as completely as if it had never been passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which, were commenced, prosecuted and concluded while it was an existing law. Such was the language of Tindal, Lord Ch. J"., in Key v. Goodwin (4 Moore & Payne, 341, 351), and such is the recognized rule in this country. But there is a class of cases forming exceptions to this general rule. In Hitchcock v. Way (6 Adolphus & Ellis), a ease similar in principle to the one now under consideration, Denman, Lord Ch. J., in delivering the opinion of the Court, said: “"We are of opinion that the law as it existed when the action was commenced, must decide the rights of the parties to tbe suit, unless the Legislature express a clear intention to vary the relations of litigant parties to each other.” Upon the same principle was decided the case of Butler v. Palmer (1 Hill, 325), in which it was very emphatically declared that positive enactments are not to be construed as interfering with previously existing contracts, rights of action, or suits, unless the intent thus to interfere be expressed in the enactment. Extending this principle, it was held in Bedford v. Shilling (4 Serg. & Rawle, 401), that a statute in any way modifying the remedy of a party by action, shall never be so construed as to affect actions brought before the statute. Also, in Bates v. Stearns (23 Wendell, 482), it was decided that a statute should never be so construed as to affect even pending remedies, unless it either expressly declare such to be -its object, or there remains no prospective remedy upon which it can operate. We recognize and shall follow the principle governing in the exceptional cases, as well because it is sanctioned by approved precedents, as because it is calculated to prevent the evils which would result from the too rigid application of the general rule. Applying it, therefore, to the question o'f practice presented, we conclude that the Court below very properly transferred this cause from the law to the equity side, and that it had jurisdiction to try the same after the repeahof the section of the Code above referred to.

We now proceed to the second question presented. Since the amendment of § 538 of the Code (Civ. Code, § 533), appeals from decrees are to be tried de novo by this Court, upon the transcript and the evidence accompanying it. All the testimony is therefore before ns; and the respondent’s counsel claim that the conclusions of fact to be drawn therefrom, warranted the Court below in decreeing the correction of the deed and the division of the parcel of land described as the Wesley Shannon Donation Claim, in accordance with the terms of an alleged contract of purchase which is assumed to be fully proven. Appellant’s counsel, however, urge that the proofs are not sufficient to warrant the Court in concluding that there was a mistake in the deed and proceeding to correct the same.

A brief inquiry into the laws relating to the quality and character of the testimony necessary to warrant a Court of equity in decreeing the correction of a mistake in a deed will not be amiss. In Shively v. Welch (2 Oregon, 290), Kelsay, J., in delivering the opinion of the Court, said: “To entitle a party to the decree of a Court of equity reforming a written instrument, it is incumbent upon him to establish the error or mistake alleged by proof so satisfactory in its nature as to preclude all question.”

The language used by the learned judge is far too strong. To hold that proof in these, or in any cases, shall be so satisfactory as to preclude all question, would defeat the object of the law, for it seldom lies within the range of human possibility to furnish that quality of proof. The rule which should govern in this class of cases is laid down in Willard’s Equity Jurisprudence, page 75, where it is held “that to show a mistake in a written instrument, the evidence must be clear and satisfactory, so as to establish the mistake to the entire satisfaction of the Court.” And this is identical with that expressed by both Fonblanque and Story, and has received the approval of the highest judicial tribunals of the United States and of England.

The testimony before us does not fill the measure of the rule just stated, much less that laid down in Shively v. Welch, and is not of that clear and satisfactory nature requisite to warrant us in reforming a written instrument.

The decree of the Circuit Court must, therefore, be reversed, and a decree entered in conformity with this opinion. Decree reversed.