delivered the following dissenting opinion.
7. I regard a judicial construction of Section 392, B. & C. Comp., not essential to a determination of this controversy. I think it not improper, however, to suggest that the judicial dictum alluded to in Spaur v. McBee, 19 Or. 76 (23 Pac. 818), and Rowland v. McCown, 20 Or. 538 (26 Pac. 853), when taken together with the express declaration in the section mentioned, to the effect that none of the provisions thereof shall be so construed as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title, whatever may be the construction placed thereon, discloses not only an intention by the legislative department of our State to recognize such a defense, to the extent, at least, of permitting a defendant to' maintain his possession in that manner—constituting thereby a legislative construction of the law as it existed prior to that time—but that in the opinion of the court at the time the decisions were rendered, such defense should be available; and this appears to be in consonance with the progressive spirit manifested by such eminent authority as Pomeroy in his unexcelled work on Code remedies (Sections 87-97, inclusive [3 ed.]), and also Smith’s Leading Cases, vol. 2, p. 734. And it is well to note that the announcement of the rule upon the subject in Spaur v. McBee and Rowland v. McCown is entitled to more weight than is usually given to mere dicta. The question was there argued and presented, and, no dissent having been recorded to the views thus expressed by Mr. Chief Justice Strahan, we must presume that the views of that distinguished jurist were concurred in by each of the other members of the court, no less eminent, consisting of Justices Lord and Bean. It amounts to more than a mere declaration of the views of the writer of the opinions, known as dicta or obiter *76dicta; it is judicial dictum, for it is the expression of the views of at least a majority, if not of the entire court, upon a matter, which while possibly not essential to a decision, was presented, argued, and considered. Words and Phrases, p. 2051. Judicial dictum represents the views of the court upon questions deemed too clear to admit of discussion, and should accordingly not be disregarded without extraordinary reasons appearing therefor. Such declarations as to the law are, to say the least, very persuasive, and nisi prius courts and counsel, in absence of something to the contrary, usually act upon them. Thus far the declarations alluded to constitute the only judicial utterance of this court concerning the eifect of that section of our Code, and it would seem that, after remaining for 18 years unquestioned by any judicial utterance to the contrary, it is reasonable to assume that the law as there enunciated has frequently been acted upon, and it might well be deemed a rule of property, and accordingly as stare decisis. 26 Am. & Eng. Enc. Law (2 ed.) 165, 171; Kirby v. Boyette, 118 N. C. 244, 254 (24 S. E. 18) ; Florida Cent. Ry. Co. v. Schutte, 103 U. S. 118, 143 (26 L. Ed. 327) ; Buchner v. C. M. & N. W. Ry. Co., 60 Wis. 264 (19 N. W. 56); Kane v. McCown, 55 Mo. 181, 199; Ocean Beach Ass’n v. Brinley, 34 N. J. Eq. 438.
I think, however, that, independent of Section 392, our Code clearly recognizes the right to maintain in ejectment, for the purpose of retaining possession of real property, the defense relied upon in this action. Sections 325 to 330, inclusive, of B. & C. Comp., provide a procedure in such actions, and indicate what is necessary to be pleaded on the part of the defendant, and the character of the defense which may be asserted. Nor are any of the provisions in these sections inconsistent with any of the provisions of the statute considered in the majority opinion. For example, Section 391 merely gives *77to the defendant the right, by cross-complaint, to require his claims to be determined in the equity forum, and makes such procedure essential in the event affirmative relief is desired or necessary. Under no rules of .statutory construction can it be held, nor is it maintained, that either this section, or any of those alluded to, was intended to change the rules of procedure prescribed in Sections 325 to 330, inclusive, relative to ejectment. At any rate, the compilers of the Codes have never so construed them. It will be observed that Section 325 declares that actions in ejectment, from the commencement to the determination thereof, shall be according to the provisions of the Code, “except as herein otherwise provided.” The next section provides that it shall be necessary to the maintenance of the action that the plain-: tiff have a legal estate “and a present right to the possession” of the property to be recovered; and section 328 requires, in addition thereto, that it appear that the defendant is wrongfully in possession. Section 329 clearly indicates that, if the defendant pleads it in his answer, he may defend his possession by showing “any license or3 right” thereto. If, therefore, any thing more is desired than merely to defend the possession attacked by plaintiff, he must be relegated to what is usually a long, tedious, cumbersome, and expensive method of litigation, by having to resort to the equity forum to “enforce one right and end one controversy.”
Now, as pointed out, the statute expressly provides that, in order to maintain an action in ejectment, the plaintiff must (1) set forth the nature of his estate in the property, and (2) that it must appear that he is entitled to the immediate possession thereof, and (3) that the defendant wrongfully withholds possession of the same from him; and, as to the defendant, it declares, inter alia, that: “The defendant shall not be allowed to give in evidence any estate in himself * * or any license *78or right to the possession thereof, unless the same be pleaded in his answer.” The exception, “unless the same be pleaded in his answer,” clearly implies that, in order to maintain his right of possession, the defendant may give in evidence any facts which may tend to disclose that his possession is not wrongful, and accordingly that-plaintiff does not have “a present right” thereto. It thus appears that the plaintiff must not only show that he has the title to the property, but that he is entitled to the immediate possession thereof. True, proof of the legal title raises a presumption that he is entitled to such possession, and is ample to make a prima, facie case; but when, in response thereto, it appears that the defendant is in the actual possession of the property, such occupancy is presumed to be rightful, requiring proof on the, part of the plaintiff to overcome such presumption. In Hoover v. King, 43 Or. 281, 285 (72 Pac. 881: 65 L. R. A. 790: 99 Am. St. Rep. 754) it is distinctly recognized by this court that at least two issues are always involved in these actions, “one as to plaintiff’s title, and the other as to his right to the immediate possession of the property in controversy,” and “a finding and judgment adverse to him (plaintiff) on either issue” defeats the action. Again, Section 330, subd. 2, B. & C. Comp., recognizes this character of defense by making ample provision for verdicts in cases of this character by providing that the verdict, if for defendant, may declare the right by which possession is maintained “in effect as the same is required to be pleaded,” It matters not whether such defense be termed “legal” or “equitable,” for it is a right recognized by the statute, and the one upon which I understand defendant is here relying. See, also, Pomeroy’s. Code Rem. (3 ed.) Section 88. The defendant asks no affirmative relief, nor does the verdict or judgment declare it. I entertain some doubt as to whether either the verdict or judgment conforms strictly with the *79requirements of the statute (Section 330, subd. 2), in that they do not clearly state by what right defendant maintains possession; otherwise, I see no error in that respect.
It is stated in the majority opinion “that defendant relies on two defenses—the oral contract of purchase, and a part performance thereunder—as sufficient to take the case out of the statute of frauds at law. * *” I am unable to agree that this statement is in harmony with the record. The contract of purchase is pleaded in the answer, and facts are averred showing a full compliance therewith by defendant prior to the institution of the action; that possession was taken under it, $1,500 in improvements placed upon the land, and the purchase price fully paid; and that nothing remains to complete the transaction, in strict conformity with the agreement, except the formality of plaintiff’s execution of the deed as agreed. And, giving to the evidence adduced by defendant the favorable effect which the jury was entitled to, the facts are that decedent, for a valuable consideration, purchased the property involved, and, relying upon the contract of purchase, entered into possession, improved the same to the extent of $1,500, and paid the purchase price in full—all of which it appears was performed under the oral contract of purchase. The defendant is administratrix of the estate of the decedent, and holds possession under and by virtue of such executed oral contract. Can it then be said that the possession of the defendant is wrongful, or that in the face of these facts the plaintiff is entitled to the immediate or any possession thereof? I think not. As I understand the majority opinion, it holds that defendant must fail because of her inability, under the statute of frauds, to offer proof of these facts. Proof of this character was by this court held admissible in West v. Washington Ry. Co., 49 Or. 436 (90 Pac. 666) and Sprague v. Jessup, 48 Or. 211 (83 Pac. 145: 84 Pac. *80802). True, these were suits in equity; but in view of the provision in Section 329, allowing a defendant, if pleaded, to “give in evidence any estate in himself, or another in the property, or any license or right to the possession thereof,” why the necessity of applying a different rule respecting the proof of an executed contract merely because it arises in an action at law, especially when Section 329 has reference to such actions? Possibly, but not likely, there would be some justification for this distinction if the contract were executory only; but here the contract was completely executed, at least so far as decedent was concerned, and defendant is in possession under it, leaving nothing tó be done except the mere formality of the execution of the deed by the plaintiff. Such evidence, however, under the showing made in the case, at hand, would seem to be admissible in the absence of the provisions alluded to in Section 329. Says Mr. Pomeroy: • “The essential elements of a contract are the same in equity and at law. * * In construing and applying the statute of frauds, in determining what contracts come within its scope,, what memoranda are sufficient to a sale by its requirements, and all other matters of detail, courts of equity and of law adopt and follow the same rules Even when equity seems to depart from or disregard the statute, and especially in its enforcement of verbal contracts for the sale of land which has been part performed, it is only invoking the aid of its most salutary principles for the purpose of carrying out the ultimate objects of the statute. As the primary object of the statute is to prevent frauds, mistakes, and perjuries, by substituting written for oral evidence in the most important classes of contracts, courts of equity have established the principle, which they apply under various circumstances, that it shall not be used as an instrument for the accomplishment of fraudulent purposes; designed to prevent fraud, it shall not be permitted to work fraud. * * Ail *81ordinary contracts which consist of an intentional offer on one side and an intentional acceptance on the other, resulting in a meeting of the minds upon the same terms, are thus governed by identical rules with reference to their creation in law and in equity.” Pomeroy’s Eq. Juris. (3 ed.) Sections 1293, 1294.
No one questions but that in this State adverse possession for the statutory period may be successfully maintained in ejectment, and may be established by parol against one holding a patent, warranty deed, or other evidence of title. Title may be thus acquired regardless of the good faith of the occupant, even by a trespasser. See authorities collated from this court on this point in Gardner v. Wright, 49 Or. 609, 627 (91 Pac. 286). Must the rights of a trespasser claiming by reason of his adverse claim for the statutory period be recognized as superior in law to one who, as in this instance, in good faith, under a contract of purchase, and by permission of the holder, enters into possession, complies fully with the terms of his agreement by paying the purchase price in full, and by reason thereof remains in possession? Yet such is the effect of the conclusion reached by the majority. In this action the pleadings and proof disclose that under this contract the decedent, together with the defendant, has held the premises actually, openly, and adversely to plaintiff under claim of ownership for more than the period prescribed by the statute of limitations, prior to the commencement of this action. It is pleaded and asserted as an estoppel, it is true; but it is sufficient for either purpose, and, unless the sections of the statute quoted must be held to require it, such proof would seem admissible without pleading such defense affirmatively. 1 Cyc. 1141; 7 Ency. PI. & Pr. 340; 13 Ency. PI. & Pr. 284. A showing of the 10 years’ adverse possession alone is sufficient to give defendant a legal title such as to defeat plaintiff’s action. *82As stated by Mr. Newell, in his work on Ejectment (Section 110) : “A grant, sale, or gift of land by parol is void by the statute. But when accompanied by the actual entry and possession, it manifests the intent of the donee to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor that the possession is so taken. Such possession is adverse. It would be the same if the grantee should enter under a deed not executed conformably to the Statute, but which the parties, by mistake, believe good. The possession of such a grantee or donee cannot, in strictness, be said to be held in subordination to the title of the legal owner; but the possession is taken by the donee, as owner, and because he claims to be owner, and the grantor or donor admits that he is owner, and yields the possession because he is owner. He may reclaim and reassert his title, because he has not conveyed his estate according to law, and thus regain the possession; but until he does this, by entry or action, the possession is adverse. Such adverse possession, continued 20 years, takes away the owner’s right of entry.”
Wilson v. Campbell, 119 Ind. 286 (21 N. E. 893), is a case analogous as to both the law and the facts involved. The defendant there had entered under a parol contract of purchase from his father; the facts being almost identical with the case in hand. After his father’s demise, and after the expiration of the time prescribed by the statute of limitations, an action was brought involving the rights acquired under the oral contract of purchase. In considering the law applicable thereto, Mr. Chief Justice Elliott observes: “The parol agreement, if valid between the immediate parties, cannot be successfully assailed by their heirs or grantees, even if fraudulent as to creditors. * * The defendant in this case relies upon possession under the parol agreement, and as that possession continued for 20 years, his title became one in fee *83as completely as if there had been a conveyance when he entered into possession. * * The adverse possession under a claim and color of right gave him a complete and perfect title.” In Ward v. Cochran, 71 Fed. 127, 131 (18 C. C. A. 1, 5). Judge Thayer states his conclusion thus: “By the great weight of authority it is now well settled that a vendee of land in possession under a parol contract of sale holds adversely to his vendor, at least from the moment that the contract of sale is executed on his part by the payment of the purchase money. After the payment of the purchase money, the vendee may certainly invoke the statute of limitations as a defense to a suit in ejectment brought by his vendor, provided he has been in possession for the statutory period. And even if he has not been in possession for such length of time as will render the statute available, he can very likely plead the contract of sale and the payment of the purchase money by way of estoppel, as a bar to an action of ejectment brought by the vendor.” In the recent case of Bowman v. Wade, (decided by this court July 27, 1909) 54 Or. 347 (103 Pac. 72) it was maintained that because the claim therein involved a contract which extended beyond one year, or three years, evidence of the parol agreement to that effect under the statute of frauds was inadmissible ; but this court unanimously held that, the contract having been fully executed by one of the parties thereto, parol testimony was admissible to establish the contract sued upon, notwithstanding it was offered in an action at law. If the transaction in that action was not within the statute of frauds, and oral testimony was admissible, why is not the same rule applicable here? The only difference is that in that case the statute of frauds was relied upon because the contract extended beyond the period of one year; while here it is asserted because the proof offered, relates to a right to possession of real property. The statute, if applicable at all, applies alike in both *84instances; yet in Bowman v. Wade the proof is held proper, but rejected here.
I regard the decision of this court in the case of Coles v. Meskimen, 48 Or. 54 (85 Pac. 67), as conclusive on the questions here presented. No distinction is made in that case as to whether it was a parol contract or otherwise. In fact, the records disclose that the defendant held the possession under an oral agreement only partly performed.- Mr. Justice Bean, speaking for the court, in referring to the plaintiff therein, observes: “He must show not only that he has a legal estate in the property, but also a present right to the possession. Section 326, B. & C. Comp. Any matter therefore which goes to disprove the fact of a wrongful withholding is a legal defense, whether it shows defendant’s interest in the premises to be legal or equitable.” It is made clear therein that a party in possession may, for the purpose of shielding, or enabling him to maintain possession, plead and prove a parol contract either partly or fully executed, under which possession was rightly taken and held. The majority opinion seeks to distinguish this case; but I think the conclusion announced amounts to an extinction, rather than a distinction. That case appears clearly in point, is well reasoned, and sustained by eminent authority, and I believe it to be in full harmony with the letter and spirit of our statute. It is suggested that there the pleadings seem to admit the oral contract of purchase; but it was not decided on that theory. An examination of the records and briefs upon which the cause was submitted discloses that the point' by which it is sought to distinguish this case from the one under consideration was not suggested. Taking this feature in connection with the language used in the opinion, it is clear that the conclusion there reached was based upon the theory that a partly performed parol executory contract of purchase is a good defense in an action in ejectment, by one in *85possession claiming under it. In fact, the court, in passing upon the plea there relied upon to that effect, holds, without reference to the admission in the reply, that “the answer therefore stated a good defense.” The conclusion as there announced, until overruled, is, accordingly, the law upon the subject. It cannot be classed as either obiter or judicial dictum; nor can the fact that the decision might have been put upon a different ground, existing in the case, from that mentioned, make it such. Clark v. Thomas, 51 Tenn. (4 Heisk.) 419, 421; Kane v. McCown, 55 Mo. 181, 199; Union P. Ry. Co. v. Mason City R. Co., 128 Fed. 230, 236 (64 C. C. A. 348) ; Railroad Companies v. Schutte, 103 U. S. 118, 143 (26 L. Ed. 327.)
I fully concur in the views announced by counsel for respondent in their belief that it is an unexampled doctrine to hold “that a party by admitting in his pleading that he made an oral contract for the sale of land, and that such contract was never reduced to writing, thereby waives the protection of the statute. ■ It is also a novel doctrine * * that a party need not have a cause of action when he files his complaint, that he can swear the defendant wrongfully withholds possession of his land, and can rely upon defendant coming into court, setting up a void oral contract, and then admit that he made that contract, and thus defeat his own right of recovery.” And a recognition of such practice, it occurs to me, can but result in rewarding one who may have but little regard for the sanctity of an oath, and punish him who in his honesty, may admit an oral contract; in other words, he who makes an oral contract, and says so, takes the case out of the statute of frauds, and is bound by it, and must submit to a trial in ejectment, while he who makes a solemn oral agreement, but denies it, may keep both the purchase money and the land, unless his legal antagonist, in order to get justice, resorts to 'another forum than that in which plaintiff has proceeded against him. This *86inequality, which in many instances may, and doubtless will, prove a rank injustice, is evidently one of the features that Section 325 to 330 of the statute were intended to avoid.
The plea of estoppel, relied upon, I think sufficiently pleaded and proved, and it constitutes a complete defense to this action. My views upon this subject cannot be more clearly stated than to quote from Warvelle, Ej., § 260, where that eminent author, after noting that at a very early period it became a rule of property in courts of equity that, where a man remains silent when good faith requires him to speak, he cannot afterwards be heard to deny that which his conduct unmistakably declared to be true, and upon the faith of which others have acted, observes:
“But while this doctrine originated in a court of equity, where it is freely applied to all species of property, it has also long been employed in courts of law in matters pertaining to chattels. There is, however, no good reason, at this time and under the rules of modern practice, why its application should be restricted in courts of law. As has been well said, protection against fraud is equally necessary, whatever may be the interest at stake; and there is nothing in the nature of realty to exclude those wise and salutary principles which are now adopted without scruple, in both jurisdictions, in the case of personalty. Wherefore we find a number of instances where a plea of equitable estoppel has been permitted to operate as a sufficient defense in an action of ejectment.”
To the same effect, Smith’s Leading Cases, vol. 2, p. 734.
For the reasons given, I feel impelled to record my dissent from the conclusion announced by the majority of my associates, and am of the opinion that the judgment of the court below should be affirmed.
Decided December 7, 1909. [105 Pac. 249.] Messrs. Fee & Slater for the motion. Mr. Joseph T. Hinkle and Messrs. Lowell & Winter, contra.On Motion to Recall Mandate.
Mr. Justice Eakindelivered the opinion of the court.
This is a motion to recall the mandate issued to the court below, for the purpose of taxing the costs of this court. The cause was tried at Pendleton during the May term, 1909, decided at Salem August 17th. A petition for rehearing was filed and denied October 26th. The mandate was issued November 4, 1909. The cost bill was tendered to the clerk November 11th, who refused to file the same for the reason that it came too late.
8. If we were to adopt counsel’s construction of Section 568, B. & C. Comp., which provides that “such statement of disbursements 'may be filed with the clerk at any time after said five days,' but not later than the first day of the next regular term of the court occurring after the expiration of said five days,” the refusal of the clerk to file the cost bill was proper, as it was not tendered within five days after the decree nor within the term.
9. It is held, in Hammer v. Downing, 39 Or. 524 (64 Pac. 651: 65 Pac. 17, 990: 67 Pac. 30), that the judgment of the Supreme Court is final when the opinion is handed down, and a motion for a rehearing, if filed, only suspends the judgment from the date of filing. However, this court has held, in Heywood v. Doernbecher Mfg. Co., 48 Or. 369 (86 Pac. 357: 87 Pac. 530), that Section 568, B. & C. Comp., as amended by Laws .1903, p. 209, does not apply to the taxation of costs in this court. This holding was affirmed in Allen v. Standard Box & Lumber Co. 53 Or. 10 (98 Pac. 509), and Sommer v. Compton, 52 Or. 173 (100 Pac. 289), and, having re-examined these cases, we are confirmed in the opinions there expressed.
*8810. It being held that this section does not apply, we must rely on the rules of this court. In Carney v. Barrett, 4 Or. 175, this court, speaking by Mr. Justice McArthur, says: “Under our system all courts have certain inherent powers to be exercised for the purpose of methodically disposing of all cases brought before them. They can establish such rules in relation to the details of business as shall best serve this purpose, having proper regard for the rights of parties litigant as guaranteed and recognized by the constitution and the laws. This principle is recognized in Vanatta v. Anderson, 3 Bin. (Pa.) 417, and Gray v. Waln, 2 Serg. & R. (Pa.) 253 (7 Am. Dec. 642), the decisions in which cases are approvingly referred to in 2 Reed’s Blackstone, 439, 440.” In Coyote G. & S. M. Co. v. Ruble, 9 Or. 122, Mr. Chief Justice Lord says: “Without the aid of any statutory regulation, it has been repeatedly decided that every court of record possesses the inherent power to establish and enforce rules for regulating the practice before it, not repugnant to any constitutional or legislative enactments.” On the same page, he also says: “It may, then, be safely affirmed, in the absence of any legislative authority, that the Supreme Court has the inherent right to prescribe rules for the orderly conduct of its business not contrary to law;'but, if this were questionable, the authority' of ‘every court of justice to provide for the orderly conduct of proceedings before it’ is expressly conferred by the statute. Civ. Code, § 884, subd. 3.” These cases are commented on and affirmed in the opinion by Mr. Justice Moore in State v. Birchard, 35 Or. 485 (59 Pac. 468.)
11. This court has formulated rules for the orderly transaction of its business. Rule 24, 50 Or. 582 (91 Pac. xi) provides that: “Upon the disposition of a petition for rehearing or if within twenty days after final judgment or decree no petition shall have been filed, the clerk *89shall, as a matter of course, unless he is directed by the court otherwise, issue and forward a mandate to the clerk below.” Rule 28, 50 Or. 584 (91 Pac. xi) provides among other things, that: “Nor shall any costs be taxed unless the cost bill therefor shall be filed before the mandate is issued.” If this were not the rule, mandates should not be issued until the close of the term, as, upon the issuance of the mandate, this court loses jurisdiction of the case.
Twenty days must elapse in every.case between the rendering of the judgment and the issuing of the mandate, which is ample time to cover any emergency in filing cost bills, so that, in either event, the motion to recall the mandate must be denied, and it is so ordered.
Reversed : Rehearing Denied : Motion to Recall Mandate Denied.