WEST PORTLAND HOMESTEAD ASS'N V. LOWNSDALE.
and their possession quieted. Now, as to this question of pool, whether there is any reason in it, or whether it amounts to anything, is not for me to say in this case. It is not a defense for their having taken forcible possession of this property. The result of these views is that the prayer of plaintiff's bill, asking that the railway company be restrained from tearing down and removing the elevator, will be granted, and the temporal'y injunction will be made perpetual. A declaration will be made that there is not sufficient ground for the railway company to exercise the right of re-entry. And the bill of the ratlway company will be dismu>::ied.
ASS'N V. LOWNSDALE,
(District Court, D. Oregon.
1. PLEA IN EQUITY.
July 20, 1883.)
A pica of the stat.nte of limitations to a bill in eqnity is a pure pIca, and not be accompa ,ied by an answer, unless the de:cnse is antic,pated by the hill, a Id some equitable CIrcumstance is alleged therem for the purpose of avoiding the statute. 2. LBIlTATfON D1 SECTION 5057 OF TIlE HEVISED STATUTES. On September 6, 11'l71, G. and wife conveyed hlock 67 in Carter's nddition to Portland to C., and on AUgU3L 11,1875, conve,'ed Ihe same to the West P. H. A., an:! on Fel'l'llary 19, b7/i, L. appointed the a'signee in bankruptcy of U., and on }larch 27, 18,-3. was about to sell ,a,d hlock as said assignel:', wh n s·tid We.t P. II A. brought suit against saId assignee to enjoin said sale. alleging th"t Ilu Conveyance to U. mistake. Held that, under sect,on 5057 of the Hevise.l Statutes, the suit was barred lJy lapse of time, unlt·ss the mistake was not until within two years I!ext lJefore the cOlllllle'lcement of the suit, which did not appear to lie the
Suit in Equity for Injunction. C. P. IIeald, for plaintiff. George II. Williams, for defendant. . .. DEADY, J. On March 27, 1883, the plaintiff, a corporation ·formed and existing under the laws of Oregon, brought this suit to have the defendant, as the assignee in bankruptcy of Charles l\I. Carter, perpetually enjoined from selling block 67 in Carter's addition to Purtland. The case was beard on a plea in bar to the bill, fOllnded on the limitation contained in section 2 of the uallkrupt act, (section 5U57, Rev. St.,) which provides that"No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a persoll claiming an adverse interest, tOllching any property 01' rights of property transferable to or vested in such assignee, unless urought within two years from the time when the cause of action accrueu for or against such assignee."
The facts stated in the bill necessary to an understanuing of the case are briefly these:
On and prior to September 6, 1871, Joseph S. Smith, Charles M. Carter, T. J. Carter, and L. F. Grover were the owners in common of the unsold portion of the north-east quarter of the donation claim of Thomas and Minerva Carter, situated in townShip J. S., range 1 'V. of the 'Vallamet meridian, and bounded on the south by the east and west subdivision line of section 4, in the township aforesaid; and, as such owners, on or before October 1, 1871, caused the same to be surveyed and platted into blocl,s, lots, and streets, by numbers and names, as Carter's addition to Portland, and divided the same between themselves by deeds of partition, designating therein, accol'lling to said plat, the lots and blocks allotted to each, that in the deed so executed to Charles Carter there is described block 67, "in Carter's addition," whereas at the date of such deed there was no such block in said addition, the designatiOli of the same therein being a mistake, and without consideration lJetween the parties thereto; that in October, 1871, snid L. F. Grover and ElizalJeth, his wife, caused to be surveyed and platted into blocks, lots, and streets, lJy numbers and names, a certain tmet of land, owned in severalty by said Elizabeth, and adjoining the first-mentioned tract on the south as a part of said Carter';; addition, one of which blocl,s is said block 67; that afterwards said Grover and wife, in conjunction with the other parties to said partition, execnted a general plat of both said survcJ's and plats of Carter's addition, and acknowledged the same, which was recorded on November 4,1871; that on August 11, 1875, said Grover and wife, for a valuable consideration, duly conveyed to the plaintiff said block 67; that at the date of snch conveyance, and prior t" the one to Charles M. Carter, said Gro\'er and wife were in the exclusive possession of the said lJlock aud paid the taxes thereon, and the plain ti ff si nee theconveyance to it has been allll is now in the exclusive possession of the same, and. has paid the taxes thereon; and the said Charles J\1. Carter was never in the possession of the same or paid any taxes thereon, "bnt was ignorant that said mistaken designation was in his deed."
The bill also alleges that the plaintiff purchased the premises in good faith, and that no creditor of said Carter was deceived by the fact; that said block 67 was included in said deed to him, and that the defendant, as assignee aforesaid, now claims to be the owner of the same, and as such is about to sell it at public auction. On the argument the point was made that this was not a pure plea, and tberefore it ought to be supported by an answer. Where the matter of the plea is anticipated by the bill as a release, but circumstances are also alleged that may avoid its effect, as that it was ob·. tained by fraud or mistake, the plea is not a pure one. In such cases· ihe plea must deny the circumstances, and be supported by an answer making a discovery touching the same. Story, Eg. PI. §§ 674, 675. A pure plea is founded on new matter, not apparent on the face of the bill, or it is limited to a denial of some allegation therein, which goes to the foundation of the suit-as the fact 6f partnership. Story, Eg. PI. §§ 660, 668. . . . The material facts contained in the plea appear on the face of the bIll, except the recording of the deed aforesaid to Charles U, Carter on. Septembe·r 20, 1871, and thf) date-February 19, 1878-of the defendant's appointment as assignee in bankruptcy of said Carter;: uJ;ld if these two facts had been stated in the bill, the defense might hav'e been made by demui·rer.·' ' . '.. .. - ... _. . .. ..;,.. . )
ASS'N V. LOWNSDALE.
The right to maintain a suit to correct the alleged mistake in the conveyance to Carter was not barred by the law of the state at the date of the appointment of the defendant as his assignee in bankruptcy, and therefore the qualification of section 5057, supra, that it shall not have the effect to "revive a right of action barred at the time when an assignee is appointed," has no application to the case. But I do not perceive that any attempt is made in the bill to anticipate this defense of lapse of time and avoid it, and therefore it seems to be a case for a pure plea of the statute-a simple statement of facts which show that the right to maintain this suit is barred because it was not brought within two years from the time it accrued. 'l'he allegation concerning the possession of the premises in the mean time is not pertinent to this matter, as the right to maintain this suit is not affected by that fact, whatever weight it might have as evidence upou the question of mistake. If the plaintiff is in the possession of the premises, and the defendant's right thereto is barred by the adverse occupation of the former and those under whom it claims, it may avail itself of that fact as a defense when defendant or his grantee seeks to recover that possession. So w.ith the allegations of good faith on the part of the plaintiff, and the creditors of Carter not being deceived: they in no way excuse the delay in bringing this snit, or tend to avoid the bar of the statute. Neither is the allegation of Carter's ignorance of the fact that block 67 was included in the conveyance to him material in this connection. But if it had been alleged that the plaintiff was ignorant of the mistake, and did not discover it or become aware of it until within two years next before the commencement of this suit, that would be a circumstance sufficient to avoid the apparent bar of the statute, and to require an answer from the defendant in support of this plea, and a denial of the same therein; for in case of fraud or mistake a court of equity does not allow the statute to run until the discovery thereof. Story, Eq. PI. § 1521a. And this rule has now been incorporated irito the statutes of many of the states, including Oregon, (Code Civil Proc. § 378;) and in Bailey v. GloEer, 2] Wall. 347, was applied to this very statut6 by the supreme court in a case of fraud, and by a parity of reasoning and authority would doubtless be similarly construed in a case of mistake. See, also, v. 11Illrray, 5 Sawy. 324; Carr v. Hilton,l Curt. 390. Counsel for the plaintiff also contends that the right to maintain this suit against the assignee did not accrue until the defendant set up a verbal claim to the property by advertising it for sale in March last, as the assignee in bankruptcy of Carter, and therefore the statute has not run. But this view of the statute can not be maintained. The deed to Carter vested the legal title to the premises in him, and the conveyance by the register in Lankruptcy to the defendant passed the same to the latter. Under the subsequent conveyance by Grover and wife to the plaintiff, the latter only tovK what was then left in its grantor,
--the equitable estate, with the right to maintain a suit to correct tho mistake and acquire the legal title. 'rhis, if any tiling, was certainly an "adverse interest," touching property subsequently vested in the assignee, and the plaintiff was thereafter "a persoll claiming an adverse interest" in such property. 'l'he right to maintain this snit against Carter accrued to the plaintiff as soon as it succeeded to tho rights of Grover and wife in the property, and it accrued, as against his assignee in bankruptcy, as soon as the latter "YaS appointed. The two-years' limitation then Legan to run, and had expired before this suit was commenced. There are two absolute conveyances to this property from the same parties, and as only one can stand and, h:we effect according to its purport, they are necessarily in conflict from the date of their existence, and the puties claiming unller them are therefore claiming adversely to each other. Ttlis point was practically decided in Bailey v. Glover, supra, 346, in which the assignee brought a suit more than three years after his appointment, to set aside certain fraudulent con veyances m,,,de by the bankrupt just before filing his petition in bankruptcy. In delivering ttle opinion of the court. Mr. Justice .MILLER says:
"Collnsel for the appellant that the provision of the second section of the bankrupt act has no applicatiou to the present case, because it is not shown that the llefl'nllants howe set up or asserted all?! claim to the property now songht to be recovllred, arlilcrse to that of the as iignee. It is rather dilticnlt to see what is meant by this prop03ition. Tile suit is brought to be reIillveu from some snpp03ell claim of right or interest in the property on the pout of the de:enrlants. If no Hnch claim exists, it does not stand in the way of complainant. and he does not neeL! the aiu of a conrt of eqnity to set it asille. If it is intendell to argue that until some one asserts, in words, that he claims a right to properly transflllTell to the assignee by virtue of the act, which is alverse to the hankrupt, the statute does not begin to mn, though snch person is in possession of the property. acting as owner, and ltllmitting no othtll' title to it, we thiak the con3truction of the [ll'oviso entirely too narro\v."
True, there is no claim that Carter or the assignee was e,er in the possession of the premiRes, and the contrary is alleged in the bill. But ever since September 20, 1871, the dilly-recorded deed of Grover and wife, under whom the plaintiff claIms Ly a conveyance of August 11, 1875, has, in contemplation of law, given notICe and been a claim to all the world tbat Carter, and the defendant, as his successor in interest, had an intere.;t in the premiseg adverse to any claim inconsistent with such deed. See, also, Freel-weiel" T. Ilulluman, 0 N. B. R. R3I. The plea. is sufficient.
STROUSS V. WABASH, ST. L. & P. RY. CO.
and others v.
L. & P. Ry. Co.
(Circuit Court, N. D. Ohio, TV. D.
CARRIER OF PASSEXGERS GAGE.
JUllil Term, 1883.)
LIABII,ITY FOR l\IEHCUANDISE CARRIED AS BAG-
1\. carrier of passengers is liahle as a common carrier for the ordinary baggage of passengers upon its trains, Imt it is not Iiahle for loss or injury packages of mercl1'lnd;se, pas;ecl as baggage, unless it£< agent having control of the receipt of the l.111ggage was informed or knew what was contained thp.rein, and no misrepresentation was made by the owner to the a6ent haVing charge of the husiness of chccking the baggage.
!:l.UIE-LIABlLITY FOR EXTRA BAGGAGF.-DELtVETIY.
A railroad company is liable as a common carner to the owners of extra haggage, where it is shown that the bag,gage-master accepted it wit.h the knowledge, ancl with the UnderSI anJing and arrangement [,etween the passenger and himself, as the agent of the company, that extra pay should be made for tIle transportation thereoJ, find if he receive the extla baggage, g'ives his cheeks therefor, upon payment of the extra charge, the company will he liahle aq a common carrier to cleliver the trunks at the place des.gnated liy the checks or contract of carriage. and IS responsihle for any lIljury occurring to the bagg'lge in its transportatiOn, and before its delivery at the place where it was to be delivered.
SAUE - IMPLIED AUTHORITY BAGGAGE. OF BAGGAGE-MASTER ACT OF GOD Loss OF
'Vherc a railroad company place a ba.l"gage-master Ul ItS it holds out to the public tilat he has aUl.hor,ty to make arrangements as \0 what sort of baggage shall he carried by the company, and a contract to carry extm baggag;c npon the payment of an extra charge made by him will be binding on the ompany, and It can only be excused from the safe delivery of such haggage by sll')w.ng that it was lost. by sO.ne act of God, or the pUlJlic enemy, which could not be prevented by the exercise of proper care on iiS part.
SAUE-DUDDEN FLOOD-QUESTION Fon JURY.
A sudden and extraordinary flood iu a river is to be rea-arfll'fl as .he apt of God; and in un action ur tile owner c.f for damage caused thereby, the jury are to determine, flom all the circumstances of the case, whdher, after the baggnge. master of the railroad company received and checked such baggage tbe Hood came so snddenly that, under tbe pircumstances, the injury could not have Itasonal.ly lJCen pr, vented hy tbe company or Its agents by tIlJ use of all possih:e menns; and if they tind that it could have been done with tllC of reasonal,le ancl pro, er and all po,sil,le means that could be exerCIsed and used by ils agl'nts, it wns bound to place stich haggage in a place of safety and prevent damnge 10 the goods, and the owner is entitled to recover.
OF GOODS AFTI'R DEI.IVEHY TO CAnmER.
Afler goods are delivered to a carrier to he transporteJ to a particular place, they 'ire in the custody of th,' carl'll r, and it is the duty of the carrier to preserve them from damage hy renson of a sudllen Hovd, as far as is in his power, and not the duty of the owner the. eof.
The measure of damages in such a case is the loss which thl.. owner of the goods has stlslllinC'd by the breacb of the contra.t. The jury are 10 judge of the value of the goods, and where a part of them have been sold, whatever was realized from such sale is to be d. dueted from the general value thereof, and tbe bala!!!:e would be the measure of damages.
ltlr. Hubbud, for plaintiff'!. for John R. v.17,no.3-H