Lewis v. Chamberlain ( 1914 )

Opinion

Per Curiam.

1, 2. The decree of the court entered in the absence of counsel was not void, but irregular, and it was in the discretion of the court upon seasonable motion and good cause shown to set it aside. On the merits no showing is made, except as we can consider the testimony taken in the court below to be a showing, and this indicates that the plaintiff’s title rested upon a void tax title, accompanied with an insufficient adverse possession. Chamberlain was the actual owner of the property, and was therefore entitled upon the pleadings to have a decree to that effect, and to have the relative rights of the plaintiff and himself settled in the proceeding then pending. Equity, having once obtained jurisdiction, will administer complete relief.

3, 4. As to the other questions suggested, they are of no moment to plaintiff. If she has no rights in the premises as against Chamberlain, it is immaterial so far as she is concerned what decree the court makes between Chamberlain and other parties. The parties to this suit, having invoked the provisions of the registration law, cannot now be' heard to say that it is unconstitutional.

5.. Some question is raised as to the tender required by the court in this case. It appears that the Circuit Court required, as a condition precedent to the entry of a final decree for defendant, that he should tender to plaintiff the sum of $2,168 to cover taxes paid and improvements made upon the land by plaintiff. This snm was given without any deduction for rents and profits received by plaintiff from the premises, and, in view of the holding in Parker v. Daly, 58 Or. 564, (114 Pac. 926, 115 Pac. 723, 34 L. R. A. (N. S.) 545), was exceedingly liberal. It appears in this proceeding that defendant has withdrawn the money deposited in the clerk’s office, so that there is ho sum available there at this time.

The defendant here having announced by his counsel that he is and has at all times been ready to abide the decision of the lower court, it is therefore ordered that decree be entered here affirming the title of defendant in the property in suit, and declaring plaintiff to have no title or interest therein, except that she have a lien upon the premises for the sum of $2,168, and that, if said sum is not paid within 90 days from the entry of the mandate in this cause in the court below, the premises may be sold, as upon the foreclosure of a mortgage, to satisfy the amount of such lien and costs of sale. Neither party will recover costs in this court.

Affirmed.

All the Justices concur.