Elwert v. Marley , 53 Or. 591 ( 1909 )

Opinion by

Mr. Commissioner Slater.

1. Plaintiff moves to dismiss the appeal on the ground that, subsequent to the rendition of the decree, and before the appeal, Olsen took from M. W. Parelius, who is plaintiff’s grantee, a lease of the premises in dispute, thereby recognizing and acknowledging the validity of the decree, and estopping himself from further contesting the title and right to the enjoyment of the premises by plaintiff and those in privity with her. It appears from the affidavits of Parelius in support of the motion, and from Olsen’s in answer thereto and the former’s reply, that on August 21, 1906, which was after the cause had been submitted, Parelius received from plaintiff a conveyance of lot 5 and the wharfage rights claimed to be appurtenant thereto, in pursuance of a contract of purchase entered into between them prior to the origin of the suit; that the deed was recorded, of which Olsen had knowledge; that on April 26, 1907, and after the entry of' decree, Olsen entered into a written contract of lease with Parelius respecting the property rights in dispute. The contract is mutual in its covenants, and was executed by both parties under seal. By its terms Parelius, for the consideration of $2 per month, to be paid by Olsen, leased to the latter the right and privilege of mooring and keeping for two months a certain scow or houseboat owned by him upon certain premises, described as being “between ordinary high-water mark in the Willamette River and the established harbor line of said river and abutting upon lot 5 in block 2 in East Portland,” etc., being the identical property and rights in litigation herein. In consideration of the lease Olsen therein agreed to pay the monthly rent in advance, beginning on May 1, 3907, and that at “the expiration of said term he will quit, vacate, and surrender un said premises to Parelius.” It is stated in the latter’s affidavit that one month’s rent was paid. This is denied by Olsen; but it appears to be uncontroverted by him that he continued in the possession of the leased premises, and has never at any time offered to surrender them to Parelius.

A party to an action may, by his acts subsequent to a judgment or order against him, waive his right to have such right or order reviewed by an appellate court, as by acquiescing therein by payment or part payment, or by accepting the benefits thereof. Moore v. Floyd, 4 Or. 260; Portland Const. Co. v. O’Neil, 24 Or. 54 (32 Pac. 764).

2. In Ehrman v. Astoria Ry. Co., 26 Or. 377 (38 Pac. 300) it was held that the right to appeal from a decree refusing to foreclose a mechanic’s lien is waived by bringing an attachment action after the entry of the decree, when the right of attachment is conditioned upon the fact that the claim is not secured by any lien or mortgage. Kansas City Ry. Co. v. Murray, 57 Kan. 697 (47 Pac. 835); Fidelity & Deposit Co. v. Kepley, 66 Kan. 343 (71 Pac. 818). So any act, on the part of a defendant, by which he impliedly recognizes the validity of a judgment against him operates as a waiver of his right of appeal therefrom or to bring error to reverse it. 2 Cyc. -656. The case of Sheldon v. Motter, 59 Kan. 776 (53 Pac. 127), was a proceeding brought to review an order confirming a sale of real estate at which the defendant Motter was the purchaser. Since the petition in error was filed, plaintiff and her husband accepted a lease from Motter for the land sold, and attorned and paid rent for the same. It was held that this was a recognition of the defendant’s title which was inconsistent with the prosecution of the writ of error, and the same was dismissed. In Stauffner v. Salimonie Mining & Gas Co., 147 Ind. 71 (46 N. E. 342), plaintiffs had sued to have canceled a lease made by them upon certain lands. A demurrer to the complaint was sustained, and, refusing to plead over, judgment went against them, from which they appealed. After perfecting their appeal they sold and conveyed the leased premises to one Dudding, and also transferred to him their interest in the lease. After-wards they received from the lessees the rent due them to the date of the transfer. It was held, on motion to dismiss the appeal, that by assigning the lease to Dud-ding after the rendition of the judgment, and by accepting rent due thereunder accruing subsequently to the judgment from which the appeal was taken, they recognized the lease as still of binding force, and thereby waived their objection urged for its cancellation. And to the same effect is Ewing v. Ewing, 161 Ind. 484 (69 N. E. 156).

3. As to whether or not appellant paid one month’s rent under the lease is not so material here, for he agreed to pay for, and he occupied and enjoyed, the use of the premises as a consideration of his promise. By the execution of this contract, and the continued enjoyment of the premises thereunder, appellant became by his own voluntary act the tenant of Parelius, and thereby effectually estopped himself from further disputing the latter’s title. Jones v. Dove, 7 Or. 467. Plaintiff has sought to avoid the effect of the lease by claiming that the lease was fraudulently obtained from him by Parelius, with an intent to cheat and defraud him out of any rights he might have on this appeal, that the lease was signed by him at the special instance and request of Parelius at a time when he (Olsen) was on the east side of the river, and had no opportunity of consulting an attorney, and that Parelius at the time informed him that it could not, and would not, in any way affect his rights on appeal. The facts disclosed show, however, that two or three days intervened between the time when the agreement to lease was first orally made, with an understanding that Parelius was to have the same thereafter reduced to writing and to present it to Olsen for execution, during which time the latter had opportunity to consult his attorney if he deemed it necessary; and, as to the representations-which Olsen says were made to him by Parelius as an inducement to secure the execution of the instrument, and on which he says he relied, even if uncontroverted, which is not the case, they amount to no more than an expression of an opinion by Parelius as to the law applicable to the contract when executed, and of that matter one party was as able to judge as the other. Each party must be presumed to have known the law, and a mistake in respect thereto furnishes no ground for setting aside the instrument executed under such circumstances, or for disregarding its legal effect. But the facts are disputed by Parelius, who says he had no such conversation with Olsen. The effect of the decree was to require Olsen to vacate the premises, but he failed to comply therewith, and was charged with contempt of court. He says that he was preparing to appeal. Had he done so promptly, and.given the necessary undertaking provided by statute, he could have stayed further proceedings against himself. In answer to the charge he disclaimed any intentional disobedience of the decree, and promised to comply with it. He was then given five days in which to purge himself of contempt by vacating the premises, whereupon he applied to Parelius to lease the privilege of keeping his scow where it was, which resulted in the agreement stated. He afterwards perfected this appeal.

In our judgment there are not sufficient facts stated by Olsen to avoid the estoppel set up, and it follows that the motion to dismiss should be allowed.

Dismissed.