Barnes v. Esch

. Mr. Justice Moore delivered the opinion of the court. A statement in the brief of plaintiff, reads: “This is a suit to enjoin a continuing trespass and to secure a setoff of a claim for damages against a judgment obtained against plaintiff’s husband, L. S. Barnes, by fraud, deceit and false testimony, which said defendant Spencer attempted to enforce by execution and levy against a large amount of property in Marion and Clackamas Counties owned by the plain- - tiff.” 1-3. In Bileu v. Paisley, 18 Or. 47, 49 (21 Pac. 934, 4 L. R. A. 840), Mr. Chief Justice Thayer referring to 3 Blackstone’s Com. 209, describes a trespass as follows: “Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close.” Equity will intervene to prevent a trespass upon real property by cutting timber: Kitcherside v. Myers, 10 Or. 21; Mendenhall v. Harrisburg Water Co., 27 Or. 38 (39 Pac. 399). The removal of ore from the premises of another without his consent will be enjoined: Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Bishop v. Baisley, 28 Or. 119 (41 Pac. 937); Muldrick v. Brown, 37 Or. 185 (61 Pac. 428). A suit in equity — 6 — will lie to restrain, waste: Sheridan v. McMullen, 12 Or. 150 (6 Pac. 497); Elliott v. Bloyd, 40 Or. 326 (67 Pac. 202); Roots v. Boring Junction Lumber Co., 50 Or. 298 (92 Pac. 811, 94 Pac. 182). In each of these cases the party charged with the commission of a trespass had unlawfully done or threatened the perpetration of some act that resulted in irreparable injury, or was detrimental to the estate of the owner in the premises: Mendenhall v. Harrisburg Water Co., 27 Or. 38 (39 Pac. 399); Union Power Co. v. Lichty, 42 Or. 563 (71 Pac. 1044). In Mathews v. Chambers Power Co., 81 Or. 251 (159 Pac. 564), it was held that equity would prohibit a willful trespass upon land. To the same effect see Chapman v. Dean, 58 Or. 475 (115 Pac. 154). A careful examination of the averments of the complaint herein fails to show that either of the defendants had ever entered upon the plaintiff’s land, or done or threatened the commission of any act that might result in injury to her estate in the premises. No trespass, continuing or otherwise, is charged nor are any facts stated in the initiatory- pleading from which an unauthorized entry upon the plaintiff’s land can be inferred. The complaint does allege, however, that the defend- ■ ant Spencer is a nonresident and has no property in Oregon that is subject to execution, except the judgment which he secured against the plaintiff’s husband. In a suit to enjoin a trespass an averment in the complaint that the defendant is insolvent has been held insufficient of itself to authorize equitable intervention: Parker v. Furlong, 37 Or. 248 (62 Pac. 490); Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724); Hume v. Burns, 50 Or. 124 (90 Pac. 1009). 4. As the levy of an execution upon real property is made by the sheriff delivering to the county clerk a — 7 — certificate containing the title of the canse, the names of the parties to the action, a description of the land, and that the same has been levied upon to satisfy the demand of the judgment creditor (Section 233, subd. 4, L. O. L.) such enforcement of the writ does not imply an entry upon the premises of the judgment debtor, or of any other person, and for that reason this suit cannot be predicated upon the assumption of a continuing or other trespass. 5. It is argued by plaintiff’s counsel that the levy of an execution upon the property of a person who is not a party to the judgment upon which the writ was issued, entitles such owner to compensatory damages, which measure of loss may be set off in equity against the demand of the judgment creditor who caused the injury, if he be insolvent and not a resident of the state. A seizure by an officer of the property of a person who is not a party to the writ is illegal. When such levy is directed by the party at whose instance the execution was issued, the command renders such party and the officer liable for the damages thus occasioned: Meyer v. Gage, 65 Iowa, 606 (22 N. W. 892); Perrin v. Claflin, 11 Mo. 13; Knight v. Nelson, 117 Mass. 458; First Nat. Bank of Chillicothe v. McSwain, 93 S. C. 30 (75 S. E. 1106 (Ann. Cas. 1914D, 809). A text-writer in discussing equitable cross-demands as a means of relief, remarks: “So proceedings under a judgment will be restrained upon the ground of an equitable setoff, even though for unliquidated damages, where the one against whom it is claimed is a nonresident and insolvent”: 1 High, Inj., (4 ed.), § 239. To the same effect see Marshall v. Cooper, 43 Md. 46; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596 (38 L. Ed. 565, 14 Sup. Ct. — 8 — Rep. 710). See, also, the extended notes to the case of St. Paul etc. Trust Co. v. Leck, 57 Minn. 87. (58 N. W. 826, 47 Am. St. Rep. 576). In Mitchell v. Holman, 30 Or. 280 (47 Pac. 616), it was decided that equity would entertain a suit to compel the allowance of a setoff against a judgment on a promissory note obtained by a person who held it only as collateral for a debt less than the amount of the note, where such latter fact was not pleaded because it was not known to the maker until the trial of the law action, and the payee was insolvent. 6, 7. Our statute provides for setting off one judgment against another when such final determinations are given in Justices’ Courts, if the adjudications are between the same parties and mutual: Section 2443, et seq., L. O. L. Though this enactment relates to judgments rendered by an inferior tribunal in actions at law, it evinces a legislative policy, in the absence of any statute regulating equitable setoffs in courts of record, of requiring that the demands shall be mutual and exist between the same parties before they can be employed to extinguish wholly or in part, the rightful claim of the adverse party. Such rule has been enforced in other jurisdictions. Thus in a note to the case of Duncan v. Bloomstock, 2 McCord (S. C.), 318 (13 Am. Dec. 728, 729), it is said: “The doctrine of setoff, as applied to judgments, rests upon different grounds from that which controls where there are mutual demands which have not passed into judgment. In the latter case the power of a court of law to allow a setoff is derived entirely from the statutes of setoff: See note to Gregg v. James, 12 Am. Dec. 151. But the law courts have long exercised an equitable power, incidental to their jurisdiction over their suitors and officers, and entirely independent of any statute setting off mutual judgments against each other.” — 9 — In Collins v. Campbell, 97 Me. 23 (53 Atl. 837, 94 Am. St. Rep. 458, 462), it is said: “Mutuality is implied in the word ‘setoff,’ which has been adopted as a legal term by the legislatures and courts, and is essential in every case dependent upon the discretion of the court, but it need not be a nominal mutuality indicated by the record, but real mutuality shown by the evidence.” In Priest v. Dodsworth, 235 Ill. 613 (85 N. E. 940, 14 Ann. Cas. 340), it was ruled that a plea proposing to set off an individual demand of one of two defendants against a joint demand of the plaintiff against both defendants was bad, since demands to be the subject of setoffs, must be mutual between all the parties to the action. In Edmondson v. Thomasson, 112 Va. 326 (71 S. E. 536, Ann. Cas. 1913A, 1301), it was held that partnership demands and demands due to individual partners, could not be set off against each other. A conclusion to that effect is based on the assumption that the liability of partners is joint and not several, hence a partnership debt cannot be set off against the claim of a partner individually: Stewart v. Terwilliger, 177 Mich. 313 (143 N. W. 17, Ann. Cas. 1915C, 808). In Schade v. Muller, 75 Or. 225, 230 (146 Pac. 144), it is said: “The defendant cannot set off against the plaintiff’s demand any claim he may have against a member of the firm.” Where, however, all the partners agree with an individual that a setoff may be allowed, the stipulation will be enforced: McDonald v. Mackenzie, 24 Or. 573 (14 Pac. 868). 8. The relationship existing between the plaintiff and her husband is not that of a partnership, but they have been here treated as sustaining a somewhat analogous — 10 — association. As a loyal wife tlie plaintiff must be vitally interested in protecting the rights of her husband, but the most favorable situation that can be invoked in her behalf cannot render her alleged claim for damages mutual, or entitle her to offset such demand against the defendant’s judgment to which she was not a party, even though the defendant may be insolvent and is a nonresident of this state. Believing that a proper conclusion was reached in dismissing this suit, it follows that the decree should be affirmed and it is so ordered. Affirmed. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice McCamant concur. ¡