Moore v. Brown
Moore v. Brown
Opinion of the Court
Plaintiff, alleging that she is the administratrix with the will annexed of the estate of Esther Baker, deceased, brought suit against Edna Burke and Milton Brown to compel defendants (1) to convey certain residential property to plaintiff and four other heirs
The gist of plaintiff’s complaint is as follows: That in 1952 plaintiff’s decedent entered into a lease-option contract with a third-party vendor to purchase the subject property; that in 1968 decedent became too ill to manage the property, and assigned her interest in the contract to defendants; that this assignment was made with the understanding that defendants would collect the rents, make the monthly contract payments, manage the property (alleged to be worth $8,500), and convey the property to plaintiff’s decedent or her children when the unpaid balance of some $1,500 was paid to the vendor; that the final payment was made in 1971 at which time the property was conveyed to defendant Brown who then conveyed an undivided one-half interest to defendant Burke; that defendants are now in possession of the premises, purporting to be the lawful owners thereof.
Defendant Brown was formerly decedent’s attorney. Defendant Burke was decedent’s sister.
Defendants filed separate answers, each admitting that he and she respectively were co-owners of the subject property but alleging lack of sufficient knowledge to admit or deny plaintiff’s allegations concerning the heirs and denying plaintiff’s allegations relative to the claimed agreement to convey the property to plaintiff’s decedent.
Following a trial on the merits the trial court held:
“1. Defendant, Milton O. Brown has no legal interest in the subject property located at 2711 N.*202 Albina in the City of Portland, legally described as: Lot 10, Block 7, Proebstel Addition, City of Portland, County of Multnomah, State of Oregon.
“2. Defendant, Milton 0. Brown shall forthwith execute a deed transferring a life estate in said property to defendant, Edna Burke, with the remaining interest in the surviving children of Esther Baker, namely Martha Moore, Billy R. Williams, Georgie Ann Baker, Annie Lee Ross, and Mary Elizabeth Baker share and share alike.
“3. Defendant, Edna Burke shall be entitled to one hundred percent (100%) of all income received from said property for the rest of her life.
“4. Defendant, Edna Burke shall execute a present deed reserving unto herself a life estate in said property and transfering [sic] the remainder interest to the surviving children of the deceased, Esther Baker, namely Martha Moore, Billy R. Williams, Georgie Ann Baker, Annie Lee Ross, and Mary Elizabeth Baker share and share alike.
“5. If said property shall be sold prior to the death of defendant, Edna Burke, the present value of Edna Burke’s life estate is determined to be three thousand ($3,000) dollars as of the date of this decree.
Plaintiff assigns as error the following:
(1) “The court erred in decreeing that plaintiff should pay Edna Burke $3,000.00 or any other sum for the reason that she, Edna Burke, failed to either plead or prove anything that would support such a provision.”
(2) “The Court erred in holding that defendant Edna Burke had any interest in the property after the plaintiff Esther Baker died.”
Neither of defendants cross-appealed, although defendant Burke argues in her brief that the trial court erred in its findings and conclusions, and that she
Plaintiff did not furnish this court with a complete transcript of the testimony given at the trial. Instead we have been provided only with a transcript of testimony of certain selected witnesses, or portions thereof, and what appears to be proceedings at the post-trial hearing on plaintiff’s objections to the court’s findings and conclusions and plaintiff’s motion for a new trial.
Although a literal reading of ORS 19.029, standing alone, without considering ORS 19.125 (3),
Second, an examination of the history of OBS 19.029 and 19.125 from their first enactment in 1862 (General Laws of Oregon, ch 6, p 274 (Civ Code) (Deady 1845-1864)) down to the latest amendment of OBS 19.029 (Oregon Laws 1973, ch 207, p 349), together with an examination of the decisions of our Supreme Court construing these provisions over the same period, shows that so far as equity appeals are concerned trial de novo on the entire record is still the law in this state, and that an appellant is required to provide the appellate court with a complete transcript of the testimony and evidence below.
Third, this conclusion is further strengthened by an examination of the legislative history of a proposal in 1958 to abolish de novo review of appeals in equity. Such a proposal was made by both the Legislative Interim Committee on Judicial Administration and the
As our Supreme Court observed in Evergreen Timber v. Hood River Co., 246 Or 11, 423 P2d 963 (1967):
“While Evergreen’s appeal challenges only the finding of adverse possession, the appeal reopens the whole record, and since the suit is one in equity, we are required to consider it de novo on the record. * * *’’ 246 Or at 12.
Without having before us all the testimony and evidence considered by the trial judge we have no proper basis for determining whether the court erred in any of its findings of fact and conclusions. See, Rea v. Rea, 195 Or 252, 245 P2d 884, 35 ALR2d 612 (1952); Wood v. School District No. 13 et al., 107 Or 280, 214 P 589 (1923); Wyatt v. Wyatt, 31 Or 531, 49 P 855 (1897); Shiffer v. Birch, 5 Or App 206, 483 P2d 478 (1971); Nichols v. Nichols, 3 Or App 103, 471 P2d 841 (1970).
Accordingly, we are limited in our review to the contents of the trial court file, including the pleadings. Directing our attention to the pleadings, plain
“If said property shall he sold prior to the death of defendant, Edna Burke, the present value of Edna Burke’s life estate is determined to be three thousand ($3,000) dollars as of the date of this decree.”
Plaintiff’s contention cannot be sustained.
This is an equitable proceeding. Plaintiff has come into a court of equity seeking equitable relief in the nature of a judicial .declaration of a constructive or resulting trust. The trial court had full power to adjudge the rights and obligations of all parties to the proceedings within the issues framed by the pleadings, regardless of specific prayers. Federici et ux v. Lehman et al, 230 Or 70, 368 P2d 611 (1962). By her answer defendant Burke denied that she received and now holds the property in trust for decedent’s heirs, and claimed that she was the owner of an undivided one-half interest in the property. The same was true as to defendant Brown. It is not necessary that defendant Burke have pleaded and prayed for affirmative relief for the court to enter the decree in the form in which it was rendered. An equity court has the power to shape its decree so that one who seeks equity may be compelled to do equity. Brown et ux v. Hassenstab et ux, 212 Or 246, 319 P2d 929 (1957).
Secondly, as to the alleged failure of defendant Burke to offer sufficient evidence to prove that she was entitled to such relief, we have already stated that without a complete transcript we have no proper basis
Plaintiff’s second assignment must also fail for the same reasons previously set forth.
Affirmed.
ORS 19.125 (3) provides:
“Upon an appeal from a decree in a suit in equity, the cause shall be tried anew upon the record.”
See, Oregon State Bar Committee Reports (1958), pp 8-16.
An examination of legislative records indicates that Engrossed Senate Bill 84 as passed in its final form did not eliminate de novo review in equity appeals. The bill as originally passed by the Senate did contain the provision eliminating trial de novo. However, the House Judiciary Committee amended the bill to strike the provision eliminating de novo review, and the bill was passed by the House as so amended. Thereafter the Senate concurred in this House amendment and repassed the bill. Minutes, House Committee on the Judiciary, SB 84, April 28, 1959; Minutes, Senate Committee on the Judiciary, SB 84, May 4, 1959.
Concurring Opinion
(Pro Tempore), specially concurring.
I do not concur with that part of the majority opinion which holds that there cannot be a trial de novo on particular limited points without bringing upon appeal the entire record. The majority may be right, but in my opinion insufficient research has been made to determine whether the long-standing rule which it follows is still viable under our present revised appellate procedure. However, I reach the same result by a different means.
The plaintiff designated only a partial record in her notice of appeal and failed to include therein, as required by ORS 19.029 (l)(e), “A plain and concise statement of the points on which the appellant intends to rely * * On appeal the appellant may rely on no other points than those set forth in such statement unless he designates the entire record, in which case he need not make any statement of points. The reason appellant must include such points in his notice of appeal or be barred from raising them on appeal is that in the absence thereof respondent has no means
On appeal plaintiff relies on two points: (1) there were insufficient pleadings to justify the court’s determination that defendant Burke was entitled to money advanced for the benefit of the property in the event it should be sold during Burke’s life estate; (2) there was no evidence from which the court could find that the defendant Burke was entitled to a life estate. The insufficiency of the pleadings can probably be raised without any statement of points. The majority disposes of this contention satisfactorily. The second point was not included in plaintiff’s notice of appeal or in any subsequent statement provided for by OR.S 19.029. As a result, this court cannot give it consideration because we do not have the entire record and defendant had no notice upon which she could designate any balance of the record which might relate to that point.
For this reason, I concur with the result of the majority opinion.
Concurring Opinion
specially concurring.
In addition to joining in the court’s opinion, I also join in that portion of Judge Holman’s opinion in which he concludes the failure of plaintiff to comply with ORS 19.029 precludes our consideration of the second point set forth in the Notice of Appeal.
Reference
- Full Case Name
- MOORE, Appellant, v. BROWN and BURKE, Respondents
- Cited By
- 9 cases
- Status
- Published