Burggraf v. Brocha

Mr. Justice Eakin

delivered the opinion of the court.

1. The first assignment of error is as to the receiving in evidence of Plaintiff’s Exhibit 2, an abstract. Plaintiff testified as to the signing of the agreement, which provides, among other things:

“The party of the second part [G. F. Brocha], in consideration of the premises, agrees to exchange to the said party of the first part [Burggraf] the following described property for the above-described property as follows: The southeast quarter of section 12, township 18 north, of range- 5 west, situated in Clare County, state of Michigan — to be free of encumbrance except as to taxes of 1912, which party of the first part agrees to assume, * * to give abstract on the Michigan property, and a certificate on the Washington lots.”

At the same time they made to the plaintiff an affidavit to the effect that G. F. Brocha is the owner of *384 the property described, namely, the southeast quarter of section 12, township 18 north, of range 5 West, as a part of the basis of the trade. Defendants furnished to plaintiff a pretended abstract of title, and plaintiff thereupon offered in evidence the said alleged abstract, to which defendants objected on the ground that it was incompetent. The court overruled the objection, and it was received in evidence. The abstract was not offered as evidence of the title, but plaintiff was seeking to prove that defendants did not have title to the land: See Jaeger v. Harr, 62 Or. 16 ( 123 Pac. 61, 901 ). And as against defendants the exhibit was prima facie evidence of that fact.

2. Assignments Nos. 2, 3, 4, 6 and 7 relate to the overruling of objections to the offer of evidence tending to show the value of plaintiff’s property conveyed to defendants in exchange for the Michigan property. One of the main issues tendered was that plaintiff’s property was worth $6,000, the amount he seeks to recover. The prayer for judgment is based thereon, and it was competent testimony.

3. The fifth assignment of error relates to what defendant G. F. Brocha said to a witness as to his title to the Michigan land. The answer particularly shows the relevancy of the question. When he was spoken to about it, Brocha said, “Why didn’t he trade it off before he investigated it [the title]?” which was clearly competent, as tending to show that he had no confidence in his title.

4-7. The eighth assignment is as to the denying of the motion for nonsuit, which is based on several grounds. The first reason given is that the plaintiff did not allege that the Michigan property did not belong to defendants; but that is the charge of subdivision 4 of the complaint. The second point relates *385 to the misjoinder of defendants, which is a defect that no one can take advantage of except the persons misjoined. It is not fatal to the complaint; Tieman v. Sachs, 52 Or. 560 ( 98 Pac. 163 ). Even a defect of parties is wavied, if not raised by demurrer: See Section 68, L. O. L., and cases there cited. The fourth argument concerns the allegation of damages, but the facts alleged show damage, and that is all that is required. The fifth subdivision is as to the failure to allege the elements of fraud. It is specifically charged that defendants represented that they owned the Michigan land, and had good title, when in fact they did not own it — a clear case of fraud, constructive, at least, if not criminal.

8. An injunction was allowed at the commencement of this action; but an injunction is an equitable remedy, and is not available in law actions. We think that upon the showing made and the case pending plaintiff was not entitled to the injunction, and the court erred in denying the motion to dissolve it. The injunction is hereby dissolved.

We find no error in the record. The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur. Mr. Justice McBride took no part in the consideration of this case.