Newby v. Rowland

[134] By the Court, Watson, C. J.: This action was brought to recover certain real property situated in Yamhill county. The complaint alleges that the plaintiff is the owner in fee-simple and entitled to possession, but that defendant wrongfully withholds the same from him, to his damage, etc. The answer denies these allegations, and sets forth a number of affirmative defenses. These are: (1) ownership in fee in defendant; (2) possession under a written contract of sale, with payment of the purchase money; (3) matters relied on as constituting an estoppel in pans; (4) the statuate of limitations. The plaintiff moved to strike out the second and third defenses, and also demurred to them, upon the ground, among others, that they constituted no defense at law. Both were overruled, and plaintiff replied, denying all affirmative matter in the answer. The cause was then submitted to a jury, who found by their verdict that the ^defendant was “the owner in fee-simple and entitled to the possession of the premises described in the complaint.” Plaintiff thereupon. died a motion for a new trial, which was refused, and judgment rendered for defendant on the verdict. The plaintiff appeals. There is no bill of exceptions in the record; hence, we can take no notice of alleged irregularities occurring at the trial. This is the settled rule in this court, in eases like the present, where the statute has prescribed the contents of the record. (Oregonian Ry. Co. v. Wright, 10 Or., 162.) We think the circuit court erred in overruling the motion and demurrer. The matters pleaded in the second and third defenses were unavailing in an action at law. (Bigelow, Estop., [2d Ed.] 534, et. seq; Hayes v. Livingston, 34 Mich., 384; Wythe v. Smith, 4 Sawy. 1.) When the civil [135] code (section 316) declares that “the defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof, unless the same'be pleaded in his answer,” in actions of this nature it must be construed to mean only such a license or right to the possession as would constitute a legal defense, and not an equitable right merely. It does not 'say that every license or right' to the possession may be pleaded as a defense at law, but only that none can be made availing at the trial unless pleaded. No different meaning can reasonably be given such provision. But assuming that the circuit court did err, as we think we must, how has the appellant been injured by it? The respondent’s plea of title in herself is conceded by appellant to be a good defense, and is fully sustained by the verdict of the jury. It was in fact a special finding that the fee was in her and not in the appellant, and clearly applicable to the issue as to title and right of possession found thereon. It does not appear by the record that any evidence was introduced or instruction given at the trial relating to the issue made by the replication to the objectionable defenses, and we are not at liberty to presume that there was any such evidence or instruction in the case in the lower court. And if there had been, it is difficult to perceive how that state of facts would render a reversal necessary, in view of the special character of the verdict returned, and its sole applicability to a valid defense. But had it been general instead of special, in view of the condition of the record before us, we should have felt compelled, under the authorities, to have made the same application. (Smith v. Cleveland, 6 Metc. 332; Indianapolis, etc., R. Co. v. Taffe, 11 Ind. 458; Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466.) It not only does not appear that appellant was injured, but, on the con [136] trary affirmatively appears that he was not injured or prejudiced upon the final trial by the errors of which he now complains and which we find to have been committed. It follows, therefore, that the judgment should be affirmed.