Obrázky stránek
PDF
ePub

§ 2275. Form in ejectment under the Oregon Code.

Form No. 554.

[TITLE.]

The plaintiff complains, and alleges:

I. That he is [and for five years last past has continually been] the owner in fee of the parcel of land situated in said 'county, known and described as lot ..... in block ..... in the city of... .., in said county and state, and is entitled to the possession thereof.

II. That the said defendant wrongfully withholds [and for one year and three months last past has continued wrongfully to withhold] the same from him, said plaintiff, to the said plaintiff's damage in the sum of dollars.

[DEMAND OF JUDGMENT.]

§ 2276. Form of ejectment in Oregon. The Practice Act of Oregon specially directs the substance of the complaint in actions for the "recovery of the possession of real property." Oregon General Laws, compilation 1872 (§ 315 [Hill's Code, § 318]), is as follows: "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, and that he is entitled to the possession thereof and that the defendant wrongfully withholds the same from him, to his damage, such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered, if a recovery be had." But plaintiff should not set out his muniments of title.872 Where, however, defendant set up an undivided interest in himself he was required to specify what such interest was. The donee of a land claim may maintain an action

373

372 Pease v. Hannah, 3 Oreg. 301.

373 Id. See, as to what the complaint should contain, Mitchell v. Campbell, 19 Oreg. 198. It is necessary to allege in the complaint that the plaintiff is entitled to the possession of the property. Bingham v. Karn, 18 Oreg. 199. An allegation that plaintiff is the owner of the land sought to be recovered, sufficiently describes the nature of the plaintiff's estate to give the court jurisdiction and to sustain the action, in the absence of a demurrer or other attack upon the complaint before an answer to the merits. Johnson v. Crookshanks, 21 Oreg. 339; see, also, Thompson v. Wolf, 6 id. 308. Proof by plaintiff of prior possession under deeds conveying a colorable title is sufficient as against a trespasser. Oreg., etc., Nav. Co. v. Hertzberg, 26 Oreg. 216.

under the statute for the recovery of real property, at least against one who shows no title except possession.874 A deed unacknowledged and unrecorded is good between the parties.375 And a recorded conveyance of real estate, not vitiated by fraud, will have priority in all cases over a conveyance not recorded.376 An executor has not such an estate as will authorize him to maintain an action under the Oregon Code (§ 313).377

§ 2277. Form under the New York Code-by widow, for dower. Form No. 555.

[TITLE.]

The plaintiff complains, and alleges:

I. That the late A. B. was husband of the plaintiff at the time of his death; that he died many years since; and that at the time of his death, and for many years previous thereto, he was seised in fee and in possession of the following-described premises [description].

II. That the plaintiff is entitled to one undivided third part thereof for her life, as her reasonable dower.

III. That the defendant Y. Z. is in possession of said premises, and wrongfully and unjustly withholds from plaintiff the possession of her one-third part thereof as her dower.

IV. That the other defendants claim an estate in fee in said premises, as the heirs-at-law of the said A. B.; that they are the legitimate children of said A. B.

Wherefore the plaintiff demands judgment:

1. That she recover possession of one undivided third part of said premises for her own life, against said defendant Y. Z.

2. That she be declared entitled to one undivided third part thereof for her own life against all the other defendants.

3. That she recover her costs of action.3 378

374 Keith v. Cheeney, 1 Oreg. 285; see, also, Dolph v. Barney, 5 id. 191.

375 Moore v. Thomas, 1 Oreg. 201.

376 Moore v. Thomas, 1 Oreg. 201.

377 Humphreys v. Taylor, 5 Oreg. 260.

378 This form is applicable to the state of New York, but not to California, and is taken from Abbott's Forms, No. 624. Ejectment for dower, see McKay v. Freeman, 6 Oreg. 449. It was held not to lie to enforce the right of a widow to remain in her husband's dwelling-house one year after his death. Aiken v. Aiken, 12 Oreg. 203. Sufficiency of complaint in action of ejectment for dower, see Draper v. Draper, 11 Hun, 616.

SUBDIVISION SEVENTH.

IN ACTIONS CONCERNING REAL PROPERTY.

CHAPTER I.

FORECLOSURE OF MORTGAGE AND LIENS.

common form.

$2278. Foreclosure of mortgage

Form No. 556.

[ocr errors]

[TITLE.]

The plaintiff complains, and alleges: day of

I. That on the ...

18.., at in this state, the defendant made his promissory note, bearing date on that day, in the words and figures following, to-wit [copy of note].

II. That the said defendant, to secure the payment of the said principal sum and the interest thereon, as mentioned in said note, according to the tenor thereof, did execute under his hand and seal, and deliver to the said plaintiff, a certain mortgage, bearing date the ....... day of 18.., and conditioned for the payment of the said sum of dollars, and interest thereon at the rate and at the time and in the manner specified in said note, and according to the conditions thereof; which said mortgage was duly acknowledged and certified, so as to entitle it to be recorded, and the same was afterwards, to-wit, on the day of.... 18.., duly recorded in the office of the county recorder of the county of.. in liber ........ of Mortgages, page

.; a copy of which said mortgage, with the indorsements thereon, is hereunto annexed, marked "Exhibit A," and made a part of this complaint.

III. That the interest on the said principal sum mentioned in said promissory note, and in the said mortgage, has been paid down to the day of 18.., but nothing more has been paid thereon; and the principal sum mentioned in said promissory note and mortgage, together with interest thereon at the rate of

per cent.

[ocr errors]
[ocr errors]

.......

[ocr errors]
[ocr errors]

from the

paid by said defendant.

IV. That the plaintiff, on the ..... day of 18.., or thereabouts, paid on said premises the sumi of .. dollars, for taxes duly assessed thereon, which were a lien and incumbrance upon said premises, legally attaching thereto; and the said sum of ... dollars, taxes so paid by the plaintiff, and interest thereon at the rate of per cent. per from the........ day of 18.., has not been paid by the defendant to

.....

18.., has not been

day of

[ocr errors]

1. For the sum of

....

the plaintiff.

V. That the plaintiff is now the lawful owner of said promissory note and mortgage.

VI. That the defendants [here insert names of other claimants and incumbrancers] have, or claim to have, some interest or claim upon said premises, or some part thereof [as purchasers, mortgagees, judgment creditors, or otherwise], which interests or claims are subsequent to and subject to the lien of the plaintiff's mortgage.

Wherefore the plaintiff prays judgment against the said defendant:

per cent. per

dollars, with interest at the from the ..., 18.., and for costs of suit.

rate of day of

...

2. That the usual decree may be made for the sale of said premises by the sheriff of said county, according to law and the practice of this court; that the proceeds of said sale may be applied in payment of the amount due to the plaintiff, and that said defendant and all persons claiming under him, subsequent to the execution of said mortgage upon said premises, either as purchasers, incumbrancers, or otherwise, may be barred and foreclosed of all rights, claim, or equity of redemption in the said premises, and every part thereof, and that the said plaintiff may have judgment, and execution against the said defendant for any deficiency which may remain after applying all the proceeds of the sale of said premises properly applicable to the satisfaction of said judgment.

3. That the plaintiff or any other party to the suit may become a purchaser at said sale; that the sheriff execute a deed to the purchaser; that the said purchaser be let into the possession of the premises on production of the sheriff's deed therefor; and that the plaintiff may have such other or further relief in the premises as to this court may seem meet and equitable.

§ 2279. Allegation of insurance by plaintiff.

Form No. 557.

That the defendant [mortgagor] did not keep the premises insured, but on the contrary [suffered the insurance to expire on the ........ day of ..]; in consequence whereof

the plaintiff caused them to be insured in the

for the term of

company, of

from the ..

for the premium of

...

[ocr errors]

day of

[ocr errors]

...

.., 18.., and paid theredollars.1

In California there shall

§ 2280. Action for foreclosure. be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property. It is an action for the legal determination of the existence of the lien, ascertainment of its extent, and subjection to sale of the estate pledged for its satisfaction.3 Thus, where a mortgagee had prosecuted an action in Ohio to final judgment, upon a note secured by mortgage on land in California, he can not afterwards maintain an action for foreclosure. The proceeding for a foreclosure of the equity of redemption, as at common law, is unknown to our system.3 The owner of the mortgage can in no case become the owner of the premises, except by purchase upon sale under judicial. decree, consummated by conveyance, the surplus after a decree of sale going to the subsequent incumbrancers or the owners of the premises. And adverse titles to the premises are not the proper subjects for determination in the suit.8 In such

1 As to insurance effected by mortgagor in his own name, assignment thereof to the mortgagee, etc., see Cal. Civil Code, §§ 2541, 2542.

2 Cal. Code C. P., § 726; see same section as amended in 1895, empowering the court to appoint a commissioner to sell the incumbered property; see, also, Hall v. Arnott, 80 Cal. 348; Barbieri v. Ramelli, 84 id. 154; Mc Dermot v. Barton, 106 id. 194.

3 Boggs v. Hargrave, 16 Cal. 559; McMillan v. Richards, 9 id. 365; Crosby v. Dowd, 61 id. 557, 602; and see National Bank v. Union Ins. Co., 88 id. 497; 22 Am. St. Rep. 324; Goldtree v. McAlister, 86 Cal. 93; Brown v. Willis, 67 id. 235.

4 Ould v. Stoddard, 54 Cal. 613.

5 Goodenow v. Eaver, 16 Cal. 461; 76 Am. Dec. 540; McMillan v. Richards, 9 Cal. 365.

6 Id.

7 Id.; 70 Am. Dec. 655.

8 San Francisco v. Lawton, 18 Cal. 465; 79 Am. Dec. 187.

« PředchozíPokračovat »