Robison v. Hicks

[23] Opinion by Mr. Chief Justice Moore. An examination of the allegations of the complaint will show that the deed executed by Mrs. Bailey to the plaintiff was duly recorded March 26, 1908, and imparted notice of the conveyance before Charles Bland instituted his suit against Mrs. Robison to quiet her alleged title. 1. Mrs. Bailey joined her husband in executing the deed to Bland, barring her inchoate right of dower, and hence no estate, right, title or interest remained to be conveyed by her deed to the plaintiff. 2. If, as alleged in the complaint, Bland neglected or refused properly to care for or support Mrs. Bailey, at whose request Mrs. Robison performed that service, and an action at law against Bland would not have afforded an adequate remedy, a court of equity upon proper application when made in due season would probably have imposed upon the land a charge for such maintenance, if the premises had not been conveyed: Watson v. Smith, 7 Or. 448; Thomas v. Thomas, 24 Or. 251 (33 Pac. 565); Patton v. Nixon, 33 Or. 159 (52 Pac. 1048); Storey-Bracher Lumber Co. v. Burnett, 61 Or. 498 (123 Pac. 66). 3. When Bland instituted his suit against Mrs. Robison to quiet her alleged title to lot 1, she then had an opportunity to set forth by answer the facts which she now alleges in her complaint as a foundation upon which to assert her claim of lien upon the premises. Nothing appears from her pleading to explain a reasonable cause for the default decree which was rendered against her, or to excuse her neglect in failing to answer. 4. It is stated in the complaint herein that such decree was obtained in consequence of Bland’s fraud, [24] which consisted in an averment in his primary pleading in the suit against Mrs. Robison that he was the owner in fee simple of the real property described in the deed executed to him by John Bailey. While there is a diversity of judicial expression as to the extent of the interest in land granted by such deed, authority is not wanting to justify the averment, now charged as fraudulent, that the conveyance to Bland transferred to him an estate in fee in the lots. “Thus, if land,” as said by a noted author, “is conveyed’ to trustees, without the word ‘heirs,’ in trust to sell, they must have the fee, otherwise they could not sell. The construction would be the same if the trust was to sell the whole or a part, for no purchasers would be safe unless they could have the fee, and a trust to convey or to lease at discretion would be subject to the same rule. A fortiori, if an estate is limited to trustees and their heirs in trust to sell or mortgage or to lease at their discretion, or if they are to convey the property in fee, or divide it equally among certain persons ; for to do any or all of these acts requires a legal fee”: 1 Perry, Trusts (6 ed.), § 315. An inspection of what purports to be a copy of the deed executed by John Bailey to Charles Bland, and which is set forth in the complaint, discloses that the name of the g’rantor is not limited by the word “heirs” or other expression of like import. This omission is unimportant, however, for our statute regulating this subject, reads: “The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple”: Section 7103, L. O. L. 5. The complaint does not charge that the defendants, or either of them, who secured by mesne conveyance from Bland the entire real property, acquired their title with knowledge or notice of the plaintiff’s [25] claim of lien. It was necessary to aver such, fact in order to let in proof thereof before the alleged lien conld be established and impressed on the land. No error was committed in sustaining the demurrer, and the decree is affirmed. Affirmed. Rehearing Denied. Mr. Justice Burnett, Mr. Justice McBride and Mr. Justice Benson concur.