CHAPTER V. OF SUITS IN EQUITY. TITLE I.--OF ISSUES, THEIR TRIAL, AND THE MODE THEREOF. II. OF THE MODE OF ENFORCING A DECREE. III. OF INJUNCTION. IV. OF THE FORECLOSURE OF LIENS UPON REAL OR PERSONAL PROPERTY. V. OF SUITS FOR PARTITION OF REAL PROP ERTY. VI. OF SUITS BY AND AGAINST EXECUTORS, VII. OF SUITS TO DECLARE VOID OR DISSOLVE VIII. OF SUITS TO DETERMINE ADVERSE CLAIMS DARIES. GENERAL PROVISIONS RELATING TO SUITS IN EQUITY. § 380. For what causes a suit in equity may be maintained. Dct. 11, 1862, $376. § 392. What objections, if not taken by demurrer or answer, may be made on the trial. § 393. Counterclaim of defendant. § 394. What causes of suit may be united. § 395. Arrest and bail in suits. § 380. [376.] The enforcement or protection of a private right, or the prevention of or redress for an $ 376. For what equity main injury thereto, shall be obtained by a suit in equity in Oct. 11, 1862, all cases where there is not a plain, adequate, and complete remedy at law; and may be obtained thereby in causes suit in all cases where courts of equity have been used to exer- tainable. cise concurrent jurisdiction with courts of law, unless otherwise specially provided in this chapter. In a suit, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. Relief in equity. - Equity will not grant relief where there is an adequate remedy at law: Wells v. Wall, 1 Or. 295; Phipps v. Kelly, 12 Id. 213. A judgment at law will not be set aside in equity except for actual specific fraud, accident, surprise, or mistake alleged in the bill, nor where the matters alleged could have been interposed in an action at law: Snyder v. Vannoy, 1 Id. 344. In equity ignorance of fact is no ground for relief where the facts could have been ascertained by proper exercise of diligence, unless there has been accident, mistake, or fraud: Fahie v. Pressey, 2 Id. 23. Lapse of time is no bar where fraud is charged lak, 14 Or. 540. Where equity takes When a court of equity has juris- 6 or. 40. 291. 8 Or. 526. 19 Or. 549. ceeding in suit. 5 11 Or. 447. 14 Or. 443. 15 Or. €39. § 381. [377.] Bills of revivor and bills of review, of Oct. 22, 1870. whatever nature, exceptions for insufficiency, imperti- Mode of pronence, or irrelevancy, and cross-bills, except as hereinafter mentioned, are abolished; but a decree in equity may Or: 218. be impeached and set aside, suspended, avoided, or carried into execution by an original suit. And in an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense, he may, upon filing his answer therein, also as plaintiff file a complaint in equity, in the nature of cross-bill, which shall stay the proceedings at law, and the case thereafter shall proceed as in a suit in equity, in which said proceeding may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree. The mode of proceedings in a suit, from the commencement to the determination thereof, and thereafter until satisfaction or performance of the decree be had, shall be as provided in this chapter, and not otherwise. Oct. 11, 1862, 877. Oct. 17, 1878, $1. Bills in equity. The code, by dispensing with the classification of bills in equity, has not taken away the right of suitors to present any cause of suit that formerly could be presented by any form of bill: Heatherly v. Hadley, 4 Or. 1. Cross-bills. See generally on the subject of cross-bills the note to Hurd v. Case, 83 Am. Dec. 251 et seq. Under the statute a party may rely upon a legal defense in an action without being thereby precluded from afterwards asserting his equitable title in an original suit: Hill v. Cooper, 6 Or. 181. When an answer sets up a full and complete legal defense to an action, a cross-bill in equity_cannot be filed under this section: Dolph v. Barney, 5 Id. 191; Scheland v. Epperelding, 6 Id. 258. When in an action at law the defendant is entitled to relief arising out of facts requiring the interposition of a court of equity, and such facts are material to his defense in the action at law, he may set them out in a cross-bill, although such facts constitute but a partial defense to the action at law, and are not such as could be made the subject of an original bill. In such case the defendant must be without a plain, adequate, and complete remedy at law: Hatcher v. Briggs, 6 Id. 31. § 382. [378.] A suit shall only be commenced within the time limited to commence an action as provided Limitation of in title II. of chapter I. of this code; and a suit for the suits. 6 Or. 293. 12 Or. 9, 18. 14 Or. 285. 19 Or. 79. determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property; but no suit shall be maintained to set aside, cancel, annul, or otherwise effect a patent to lands issued by the United States or this state, or to compel any person claiming or holding under such patent to convey the lands described therein, or any portion of them, to the plaintiff in such suit, or to hold the same in trust for, or to the use and benefit of, such plaintiff, or on account of any matter, thing, or transaction which was had, done, suffered, or transpired prior to the date of such patent, unless such suit is commenced within ten years from the date of such patent. In a suit upon a new promise, fraud, or mistake, the limitation shall only be deemed to commence from the making of the new promise or the discovery of the fraud or mistake; provided, this section shall not be construed so as to bar an equitable owner in possession of real property from defending his possession by means of his equitable title; and in any action for the recovery of any real property, or the possession thereof, by any person or persons claiming or holding the legal title to the same under such patent against any person or persons in possession of such real property under any Laws of 1878, suits. 8 Saw. 516. equitable title, or having in equity the right to the pos- Oct. 17, 1878, § 1. session thereof as against the plaintiff in such action, p. 25. such equitable right of possession may be pleaded by Limitation of answer in such action, or set up by bill in equity to enjoin such [action] or execution upon any judgment Saw. 615. rendered therein; and the right of such equitable owner to defend his possession in such action, or by bill for injunction, shall not be barred by lapse of time while an action for the possession of such real property is not by the possession [provisions] of title II. of chapter I. of this code. Limitations in cases affecting public lands, etc. The limitation of five years within which to commence suit in the cases specified was intended to apply only to controversies arising under § 505 [501], post, between rival claimants to the same tract as patentees of the state or the United States: Baker v. Woodward, Suits affecting real property. $379. In whose name ecuted. § 383. [379.] Every suit shall be prosecuted in the oct. 11, 1862, name of the real party in interest, except as in this section otherwise provided. An executor or an administra- suit to be prostor, a trustee of an express trust, or a person expressly authorized to sue by statute, may sue without joining with him the person for whose benefit the suit is prosecuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. Real party in interest: See § 27 [27], ante. Trustee of express trust; See § 29 [29], ante. 380. Plaintiffs and who may be. § 384. [380.] All persons having an interest in the Oct. 11, 1862, subject of the suit, and in obtaining the relief demanded, may be joined as plaintiffs, except as in this chapter defendants, otherwise provided. Any person may be made a defendant who has or claims an interest in the controversy Or. 827 adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. Who may be joined as parties. -If parties assert several and distinct rights they cannot be joined: Hendrickson v. Wallace, 31 N. J. Eq. 8 527. Oct. 11, 1862, 380. Plaintiffs and defendants, who may be. Oct. 11, 1862, 381. Same. 17 Or. 94. Oct. 11, 1862, 382. the parties depend on the same right, When judgment creditors have ac- It is a rule in equity that all persons should be made parties defendant whose presence is necessary to a complete judgment with respect to the interests involved under the issues raised by the pleadings: Green v. Milbank, 3 Abb. N. C. 148; generally, Haines v. Hollister, 64 N. Y. 3; Schwoerer v. Boylston M. Assoc., 99 Mass. 295; Eureka Marble Co. v Wind sor Manuf. Co., 47 Vt. 446; Forman v. Rodgers, 1 A. K. Marsh. 427. It is no objection to the joinder of defendants that they have no identity of interests to be affected by the judgment: Teas v. McDonald, 13 Tex. 353; S. C., 65 Am. Dec. 65; see Boyd v. Swing, 38 Miss. 197. In an action to enforce and declare an implied trust in relation to lands, all persons who claim to be entitled to a portion of the trust estate are properly made defendants. Jenkins v. Frink, 30 Cal. 595. On a contract to do certain work for two persons, one of them cannot have relief in equity against the contractor without making the other a party to the suit, or stating an excuse for not doing so: Inhabitants of New Braintree v. Southworth, 4 Gray, 304. When land conveyed by deed absolute on its face is sought to be recovered on the ground that the deed was in fact given as security for money loaned, subsequent purchasers who have taken with notice of plaintiff's equity may be joined as defendants: Webber v. Taylor, 5 Jones Eq. 736. § 385. [381.] Of the parties to the suit, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole. § 386. [382.] Sections 28, 30, 32 [31], 33 [32], 37 [36], 38 [37], 40 [39], and 41 [40], of title III. of chapter I., ter I., how far shall apply to suits in equity. Title III., chap applicable in equity suits. Feb. 25, 1889, $1. § 387. [383.] Suits in equity in the following cases shall be commenced and tried in the county where the Venue of suits. Subject of the suit, or some part thereof, is situate:1. For the partition of real property; St. 1889, p. 134. 2. For the foreclosure of a lien upon real property; 3. For the determination of an adverse claim, estate, or interest in real property, or the specific performance |