Petition for rehearing denied June 28, 1938 ON PETITION FOR REHEARING (80 P.2d 717) A petition for a rehearing filed by the defendant presents the three following contentions. We quote from the petition:
"An action of ejectment cannot be maintained upon a title which is merely equitable. * * *
"The court erred in holding that the county court of Hood River county, Oregon, had authority to waive the forfeiture provisions contained in section I, subd. c. of chapter 220, Laws of Oregon for 1931. * * *
"In no event is this plaintiff entitled to maintain this action at law in ejectment to recover possession of the land in question, as she failed to plead or prove that she had complied with the conditions of her contract at the time such action was commenced." *Page 373
The second and third propositions are chiefly repetitions of others argued in the original briefs. Although we gave them very careful consideration before writing our original decision, we have again considered them. We remain satisfied, however, with the disposition made of them in our original decision.
In the original briefs there was no contention that, since the plaintiff was not the owner of the fee, she could not maintain this action. Although it was apparent upon the face of the complaint that the plaintiff's interest in the land was equitable, the defendant did not, by either demurrer or motion, challenge that interest as the basis of an action for ejectment; nor did the defendant by an objection to the testimony raise the contention that the plaintiff's equitable interest rendered it impossible for her to maintain an action for ejectment. The very first words of the appellant's (defendant's) brief filed in this court are: "This is an action in ejectment." It is evident that the case was tried in the circuit court upon the theory that the pleadings were sufficient as the basis for an action of ejectment and that the appellant so deemed them in this court up to the time he filed the present petition. That being true, we are compelled to presume that the pleadings are sufficient: 3 Am.Jur., Appeal and Error, p. 74, § 317.
The first mention of the present contention is contained in the petition for a rehearing. When an objection which pertains exclusively to the remedy is so long postponed, it is evident that the basis of the objection has not inconvenienced the course of the cause through the courts. From 3 Am. Jur., Appeal and Error, p. 62, § 289, we quote:
"The rule seems to be that an objection based upon a defect or imperfection in the plaintiff's title to the *Page 374 property which is the subject of the litigation comes too late for a consideration on appeal or review when not made until after a trial on the merits."
Section 5-102, Oregon Code 1930, provides:
"Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law."
Section 5-104 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 * * *."
In Weatherford v. McKay, 59 Or. 558 (117 P. 969), the plaintiff, who had made a homestead entry upon public lands, had received his final certificate but not a patent, yet it was held that he could maintain an action of ejectment against another who was seeking to make an entry upon the same land. The decision cited Keith v. Cheeny, 1 Or. 285, where a similar result was reached, and, after mentioning the common law rule which required legal title as the basis for an action of ejectment, stated:
"This ancient rule has been changed in some states by statute, and in others by judicial interpretation, so as to permit an action of ejectment to be supported upon proof of a plaintiff's equitable estate in land, when the evidence showed that he had a right to the immediate possession of the premises. Warvelle, Ejectment, § 235."
In Kingsley v. United Rys. Co., 66 Or. 50 (133 P. 785), the preliminary statement prepared by Mr. Justice McNARY, states: "This is an action of ejectment." *Page 375 The legal title to the property involved in that action was vested in one A.L. Mills, who was not a party to the cause. The plaintiff alleged that in April, 1906, Mills executed and delivered to the plaintiff a bond for a deed for the property and that later the defendant entered upon the property, without right or title thereto, and ousted the plaintiff therefrom. The defendant's answer denied those averments and alleged that its entry was by virtue of an agreement with the plaintiff whereby the latter donated to the defendant a perpetual right of way across the property. The verdict was for the plaintiff. It will be observed that the plaintiff's bond for a deed conveyed no different estate in the property than the contract held by our present plaintiff. In affirming the judgment for the plaintiff, the decision, written by Mr. Justice McNARY, first quoted § 325, L.O.L., which is now § 5-102, Oregon Code 1930, being the statute upon which our present plaintiff relies. The decision then stated:
"It will be observed by the terms of the contract of sale that plaintiff had an equitable estate in the premises, and, when placed in the possession thereof by the legal owner, was endowed with the legal right to repel an invading attack of a mere intruder, and, possessing such right, he had a sufficient interest or estate in the land to support an action of ejectment.
"It is an undisputed rule of law that naked possession vests a sufficient right of property in the person who has such possession as to permit him to hold the land against all the world except the true owner. Consequently actual occupation or possession of real property is in its essential nature of an estate or right therein: Wilson v. Fine (D.C.), 38 Fed. 789. Even were the plaintiff a trespasser relatively to the owner of the legal estate in the premises, he would, while in possession, be owner of the land relatively to the defendant railway corporation. *Page 376
"In this state the rule has become fixed that possession is a sufficient interest in land to enable one ousted therefrom to eject a trespasser or one unable to show a better title: Gallagher v. Kelliher, 58 Or. 557 (114 P. 943, 115 P. 596); Browning v. Lewis, 39 Or. 11 (64 P. 304); Sommer v. Compton,52 Or. 173 (96 P. 124); O.R. N. Co. v. Hertzberg, 26 Or. 216 (37 P. 1019). In arriving at the conclusion that section 325, L.O.L., authorizes a vendee under an executory contract of sale of real property to maintain ejectment when disseized by a trespasser, we are not forgetful of the numerous cases * * *."
This is not an action against the owner of the fee. The circumstances are similar to those in Kingsley v. United Rys.Co., supra. The present plaintiff, as the one in that action, claims that she was wrongfully ousted from possession of the land by one who had no title. The right to the possession of the land in the present instance, as in that one, is the material issue. Our code (§ 1-301) provides that every action "shall be prosecuted in the name of the real party in interest", and if this means that "he who has the right is the person to pursue the remedy" (34 Yale Law Journal 259), then it is clear that this plaintiff is the proper person to maintain this action.
With the reasoning employed in Kingsley v. United Rys. Co., supra, and in Weatherford v. McKay, supra, we remain in full accord. Based upon those precedents, especially Kingsley v.United Rys. Co., we believe that the present action may be maintained.
The petition for a rehearing is denied.
BEAN, C.J., and KELLY and BELT, JJ., concur. *Page 377