Hight v. Hirsch

WOLVERTON, District Judge (after stating the facts). The defendants’ answers are evidently -drafted upon the theory that the decree in the divorce case alluded to therein became effectual as a merger of the life estate of Laura Ann Blackistone with the remainder in the children of the. marriage, and that, from and after the date of such decree, the estate in fee was vested in such children, and that the father inherited the shares of the two that died in infancy. Subsequent proceedings set out are all in pursuance of this theory, and are grounded thereon. The plaintiffs, by their demurrers to the answers, combat the theory as not well grounded either in fact or in law; and this is the pivotal question about which the entire controversy turns. There was an early statute of the state of Oregon which provided that: “The court, in. granting a divorce, shall make such disposition of and provision for the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children.” And, further, that: “The court shall make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it, for the benefit of children.” This statute seems to have received construction in an early case, decided in 1864 (Jacob Cline v. John Hurly), which does not appear to have been, reported, -wherein it was held that the court had power by reason thereof to bestow on the children of divorced parties the real estate of the party in fault. This case is referred to in Doscher v. Blackiston, 7 Or. 403, 407, and it is there held that the construction thus given the statute had become a rule of property, and for that reason it should be adhered to. Coming directly to the present controversy, it was held in the latter case that the decree rendered in the case instituted by Blackistone against his wife for divorce vested the life estate of the wife in realty involved in the children, who held the estate in remainder, and that the whole estate became thereby vested in them when they received by this decree the particular estate held by their mother before the divorce. This was an adjudication concerning the very matter in question here, and it has been acted upon ever since; and, whether right or wrong in principle or law, it cannot how be disturbed or questioned. So that the theory of defendants has in its support this adjudication; and all the subsequent proceedings are, as formerly observed, based upon it. The subsequent case of Ankeny et al. v. Blackiston et al., 7 Or. 407, is in further confirmation of the title thus established. It was instituted for the purpose of quiet [893] ing the title, and this perhaps because the doctrine of Doscher v. Blackiston was questioned. This case was tried out in the circuit court, and thereafter appealed to the Supreme Court and affirmed; and thus, by the highest judicatory of the state, the title to the property was decreed to be quieted in the plaintiffs in that suit. It is shown that the defendants who have answered herein derived their interest from the plaintiffs in that cause, and now rely implicitly upon such adjudication as confirming their title against the claim of the plaintiffs here. It seems beyond question that, the plaintiffs having been made defendants in the two principal causes alluded to, the first for partition and the second for quieting the title to the premises, and having answered therein, and decrees having gone against them, the records thus made up constitute a complete estoppel to their present suit, and the answers are therefore sufficient. It is unnecessary to treat of the plea of the statute of limitations. These considerations lead to an overruling of the demurrer, and it is so ordered.