BARRELL and another v. TILTON.

This was an action for the possession of a tract of land containing 13 acres and a quarter of an acre in Multnomah county, Oregon. The plaintiff is a citizen of New York, and the defendants are citizens of Oregon. In the complaint they are alleg d to be husband and wife, though they are not sued as such, and no averment founded upon that relationship is made. They are sued simply as parties in occupation of the premises. The complaint alleges that the plaintiff is the owner in fee of the land, and lawfully entitled to its possession, describing it; that the defendants are in its possession, and wrongfully withhold it from him; and that the property is of the value of $13,000.

The defendant Colburn Barrell answered the complaint, setting up that the plaintiff deraigns title through a conveyance from William S. Ladd and wife, citizens of Oregon, bearing date on the twenty-eighth day of September, 1882, which was executed collusively, with the sole intent of giving the federal court jurisdiction of the action, and with the understanding that at some future time the land, or its proceeds, should be reconveyed to them. The defendant further answered, that he defended only for two acres and three-eighths of an acre of the land, and as to that he denied the ownership of the plaintiff, or that the plaintiff had any right to the possession thereof, and alleged that he is the owner himself, and entitled to its possession; that as to the other part of the tract described in the complaint, consisting of 11 acres, he was merely a tenant of Aurelia J. Barrell. The answer also set up that the plaintiff deraigns title through an instrument purporting to be a conveyance absolute, executed by the defendants to Ladd, bearing date on the eighteenth of January, 1877, and that such conveyance was intended as a mortgage to secure the payment to him of $3,850, with interest, which sum the defendant is ready and willing to pay.

The defendant Aurelia J. Barrell demurred to the complaint, on the ground that, as the wife of Colburn Barrell, she was improperly joined with him in the action; and that the complaint did not state facts sufficient to constitute a cause of action, because, she being sued as the wife of her co-defendant, there were no allegations in the complaint of a cause of action for which she, as such, was responsible.

The court overruled the demurrer, and Aurelia answered, setting up, as in the answer to Colburn Barrell, the collusive character of the conveyance of Ladd and wife to the plaintiff on the twenty-eighth of September, 1882, under which he asserts title to the premises; and, further, that she defended merely for 11 acres, as to which she denied the ownership of the plaintiff, or his right of possession, and alleged that she is the owner herself, and rightfully entitled to its possession. She also set up, as in Colburn Barrell's answer, the conveyance by the defendants to Ladd, through whom the plaintiff claims the 11 acres, dated January 18, 1877, and avers that such conveyance was intended as a mortgage on her separate estate as security for the payment of the sum owed by her husband to Ladd, with interest thereon.

To these answers the plaintiff replied, traversing their material averments, except that it admitted that the conveyance of the defendants to Ladd on the eighteenth of January, 1877, was intended as a mortgage to secure the payment of a debt by Colburn Barrell to him, and stated that in December, 1879, he instituted a suit in the circuit court of Oregon for Multnomah county against the defendants, for the purpose of having that conveyance declared to be a mortgage, and for a decree foreclosing the same, and for a sale of the premises; that in that suit the defendants appeared and defended, setting up all the facts contained in their separate answers in this case; that such proceedings were had therein that on the nineteenth of March, 1880, a final decree was rendered declaring the conveyance to be a mortgage, and that its condition had been broken, and decreeing that the property be sold, and that the defendants, and all persons claiming under them, be barred and foreclosed of all right and interest in it; that, under this decree, the property was sold by the sheriff of ultnomah county after due advertisement, and in the manner directed, and at such sale William S. Ladd became the purchaser; that the sale was confirmed, and on the twenty-fifth of August, 1880, the sheriff executed a deed of the property to him; that no part of the property has been redeemed; and that no appeal has been taken from the decree, which remains unreversed; and that the plaintiff is the immediate grantee of Ladd.

On the trial of the case, the plaintiff introduced the conveyance executed by the defendants to William S. Ladd, of the property described in the complaint, dated the eighteenth of January, 1877, and a certified transcript of the record of the suit brought by him against them in the state court to have the conveyance adjudged to be a mortgage, and for its foreclosure, and the sale of the premises, showing the decree and order for the sale, and the confirmation of the sale. The plaintiff also introduced the conveyance by the sheriff to William S. Ladd, Bearing date on the twenty-fifth of August, 1880, and also a deed of the premises by Ladd and wife to the plaintiff on the twenty-eighth of September, 1882. No evidence was offered as to the alleged collusive purpose in the execution of this deed to give the federal court jurisdiction of the action.

The transcript of the record of the suit showed what purported to be a final decree entered on the nineteenth of March, 1880, and subsequently a second decree, also purporting to be a final decree, entered on the twenty-third of March, 1880. The two decrees differed only in the manner in which the property to be sold was described. The difference arose in this way: At the request of counsel, it was referred to a referee to examine and report upon the propriety of offering the property for sale in parcels, so as to enhance the proceeds therefrom. The referee reported a scheme dividing the property into parcels, and the court directed it to be sold accordingly, upon the condition that, after it had been sold in parcels, if any one should bid more for it as a whole, it should be sold to him. In the first decree the metes and bounds of the seven parcels are given separately. In the second, the metes and bounds of the several parcels are given separately, and of the whose as one tract. The process under which the sale was made was a copy of the last decree. When the transcript was offered in evidence, counsel objected to its admissibility, on the ground that the record showed that the final decree was made and entered on the nineteenth of March, 1880, and that the court had no jurisdiction to enter the second decree, under which the sale was made. The court overruled the objection, and the defendants excepted. The defendants then offered in evidence a copy of the judgment lien docket of the state circuit court, showing that the decree was docketed on the nineteenth of March, 1880. No other evidence having been produced, the court instructed the jury that the sheriff's deed conveyed the estate of the defendants to the grantee therein, William S. Ladd, and that the conveyance from Ladd and wife to the plaintiff vested the estate in him, and therefore that the verdict must be for the plaintiff. To this instruction counsel excepted. The jury accordingly gave a verdict for the plaintiff, upon which judgment was entered; and to review that judgment the defendants have brought the case here on a writ of error.

W. W. Chapman and W. W. Upton, for plaintiffs in error.

S. Shellabarger and J. M. Wilson, for defendant in error.

Mr. Justice FIELD, after stating the cases as above, delivered the opinion of the court, as follows: