McKay v. Freeman

By the Court, Watson, J.: Before examining the assignments of errors set out in the notice of appeal, it is necessary for us to pass upon the objections made for the first time in this court to the sufficiency of the complaint, and to the jurisdiction of the court below over the subject-matter of this action. It has been the practice of this court to consider the objections; that the court below had not the jurisdiction of the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action or suit, whether they are assigned as errors in the notice of appeal or not. With these exceptions this court can only look into the errors assigned in the notice of appeal. (Dolph v. Nickum, 2 Or. 202.) It is claimed by appellant that dower which has not been [454] assigned to the widow is not such an estate as that she can recover it in an action at law. While there is some conflict in the authorities on this question, we think that were it to be settled by the rules of the common law, aside from the provisions of our statute the theory of appellant would be found in accordance with the weight of authority. We are of the opinion, however, that our statutes make a full provision for the recovery of dower without reference to the rules of the common law. Section 8, of title 1, of chapter 17 of the General Laws of Oregon, page 585, provides that “when a widow is entitled to dower in the lands of which her husband died seised, and her right to dower is not disputed by the heirs or devisees, or any person claiming under them, or either of them, it may be assigned to her, in whatever counties the land may lie, by the county court of the county in which the estate of the husband is settled,” etc. Title 1, of chapter 17, makes no provision for any assignment of dower by the county court where the right of the widow is disputed, and makes no provision for the trial of such dispute by the county court. Section 328 of the civil code clearly recognizes dower- before admeasurement as such an estate as that the action provided by title 1 of chapter 4 of the code of civil procedure may be maintained by the tenant in dower to recover possession of it, with damages for withholding it. The section goes on and provides for a stay of execution on a judgment rendered in such action until the admeasurement of the dower therein recovered. Section 324 of the code provides that in an action brought for the recovery of dower before admeasurement, or by one tenant in common against another, “the plaintiff shall show, in addition to the evidence of his right of possession, that the defendant either denied the plaintiffs right, or did some act amounting to such denial.” That is the only restriction. If the right is not denied, no adjudication is necessary to establish it, and the admeasurement may be made by the county court. This brings us to the consideration of the objection made that the complaint does not [455] state facts sufficient to constitute a cause of action, in that it does not sufficiently describe the estate of the plaintiff, and that it does not allege that defendant denied the right of plaintiff to dower. We think that mere uncertainty in the description of plaintiff’s estate should have been pointed out by demurrer in the court below, and was waived by answering over, but we also think’ that the complaint was sufficient in this respect, even if attacked by a special demurrer. Section 815 of the code provides what the complaint shall contain: “The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee for life, or for a term of years, and for whose life or the duration of such term.” The complaint in this ease alleges “that she, the plaintiff, is seised of an estate in dower for her own life.” This description of the estate contains every requisite prescribed by the statute, and is sufficient. It is objected that the complaint should allege that defendant denied plaintiff’s right. If this were necessary, we think the complaint sufficiently does so when it states “ that plaintiff has demanded possession from defendant, and that he wrongfully withholds the same ” to prevent its being obnoxious to a general demurrer. We do not think,’ however, that this is a matter which is necessary to plead in addition to the allegation that defendant wrongfully withholds the possession of the premises from the plaintiff. The first error assigned in the notice of appeal is that the court below erred in certain of its findings of fact. This court cannot review the findings of fact of the court below. They are as conclusive as the special verdict of a jury. The second error assigned is that the court below erred in its conclusion of law from the facts stipulated and found, that the plaintiff was entitled to dower in the two hundred-acre tract described in stipulated fact No. 6. In passing upon this assignment of error it becomes necessary for us to decide the question whether or not the widow of a donation settler who has complied with the conditions of the fourth section of the donation law, so as to entitle him to a patent for the tract claimed by him', and who dies before the issue [456] of the donation certificate or patent therefor, is entitled to dower in such tract. The decision of this question depends upon the construction of the statute of this state regulating dower, and of section 4 of the donation law. Section 1 of title 1 of chapter 17 of the general laws of Oregon provides: “That the widow of every deceased person shall be entitled to dower, or the use during her natural life of one third part of all the lands whereof her husband was seised of an estate of inheritance, at any time during marriage, unless she is lawfully barred thereof.” This section is clear, plain and direct in its language. There is no necessity for construction. If a settler who has complied with the conditions of section 4 of the donation law, so as to entitle him to a patent of the tract claimed by him, is seised during marriage of an estate of inheritance, without the issue of the donation certificate or patent, then it follows, of course, that in the event of his death his widow is entitled to her dower, unless she is lawfully barred thereof by her own act. Is such a settler seised of an estate of inheritance ? Section 329 of the code of civil procedure contains a legislative construction of the donation law which is, we think, applicable to the case. It provides that in an action at law for the recovery of possession of real property, if either party claims the property, as a donee of the United States under the donation law or its amendments, such party from the date of his settlement thereon, as provided in said acts, “ shall be deemed to have a legal estate in fee in such property, to continue upon condition that he perform the conditions required by such acts, which estate is unconditional and indefeasible after the performance of such conditions.” This legislative construction is binding on this court, unless it has been overruled by the courts of the United States. It has not only not been overruled, but has been uniformly adopted by these courts whenever the question has been before them. (Chapman v. School District No. 1, 1 Deady, 113; Adams v. Burke, 3 Saw. 416; Lamb v. Davenport, 1 Id. 632.) An estate in fee being necessarily an estate of inheritance, we are of the opinion that the widow, in this case, was entitled to her dower by express provision [457] of the statutes of this state. If that provision were not too plain to leave any room for construction, it might be added that the right of the widow to dower in her husband’s donation claim, in cases where he died after a compliance with all of the conditions of the law so as to entitle him to a patent, but before its issue, has been generally recognized by the profession, and acted upon by the courts of the state until it has become a rule of property which ought not to be disturbed upon any doubtful construction of the law. The decision and judgment of the court below must be affirmed.