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Mrs. Martin Winch, who was regarded practically as a daughter by Mrs. Reed, and with whom she talked frankly and freely, testified that the Reeds went to California on account of Mr. Reed's health; that after Mr. Reed's death she (witness) was with Mrs. Reed practically all the time up to her death, except during the summers of 1900 and 1903; that witness always understood that Mrs. Reed's permanent home was in Portland, and never thought anything else; that Mrs. Reed always kept up her dues in the Ladies Relief Society and in the Unitarian Church of which she remained a member, and when solicited to contribute to Pasadena charities, she would say: "That is not my church. My church is in Portland. I give to my church just as I always did"; that Mrs Reed loved Carmelita dearly, but always spoke of it as Carmelita, and witness never heard her refer to it as home; that witness never heard her in any shape or manner say that Pasadena was her home for the rest of her life or all the time, but often heard her refer to Portland as her home; that she often talked about California and Oregon people, and witness had frequently heard her say that the people of Pasadena did not seem to understand why she would not take the same interest in their charities and social affairs as she did in Portland, but she said: "That I do not do. Portland is my home. That is where I am interested, and what I want to do I want to do there"; that when people would come to her in Pasadena and solicit contributions she would say: "Why, I have no business here. My business, my office is in Portland and my business agent is there": and that so far as witness knew Portland is the place she always spoke of as her permanent home.

Mr Martin Winch, a nephew of Mrs. Reed and her confidential agent and business manager, and that of her husband during the latter part of his life, and who, consequently, was familiar with her intentions, testified that he always looked upon Mrs. Reed's residence in California as temporary, and thought that she regarded it the same; that he never heard anything to the contrary, and never supposed that she had any permanent residence but Portland.

The contestants have the testimony of of numerous witnesses as to alleged declarations made by Mrs. Reed concerning her home and some letters written by her to relatives and friends. In many of these letters Mrs. Reed expresses her appreciation of the climate of Pasadena, its flowers and fruits, and in some of them refers to Carmelita as home, but there is nothing in any of them to indicate that she used the word "home" in any other sense than as referring to a temporary residence. It is not necessary to cite authorities or enter into an argument to show that the word "home" is very frequently used with reference to a place other than the legal and permanent domicile, but 87 P.-49

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it would be quite natural for Mrs. Reed, who manifestly enjoyed her beautiful residence in Pasadena, to refer to it as her home in a casual conversation and in friendly letters. The oral testimony consists principally of the evidence of interested witnesses, who undertake to relate statements aileged to have been made by both Mr. and Mrs. Reed to the effect that they never intended to return to Portland to live; that Pasadena was their home, and that they expected to live there during the remainder of their lives.

It is not necessary to prolong the opinion by referring to this evidence in detail. We have read it with care. The declarations, or most of them, are claimed to have been made many years ago, and in the course of casual conversations, or in answer to questions, and are entitled to but little weight. Such testimony is admissible in cases of this character, but it is considered by courts as of the lowest species of evidence, especially when, as in this case, it encounters conflicting declarations. Such expressions or declarations are so much influenced by the circumstances under which and the person to whom they are made, and the state of the temper at the time, that they cannot be safely relied upon when they conflict with each other, or are inconsistent with the actions and conduct of the parties.

In Morehouse v. Lord, supra, Lord Chelmsford, in referring to similar evidence, said: "There are proved on this occasion, as there usually are in such cases, written and oral declarations which conflict with each other. I lay no great stress, as your Lordships probably would not incline to do, upon casual expressions of preference for one country over another at different periods. The feelings at the moment may dictate them, or the changing circumstances of life; even a change of weather, the difference between a bright and gloomy day, may make all the difference in the expression of attachment to one place or to another; but I do lay very considerable stress upon declarations made to parties to whom he would be likely to reveal his intentions, those declarations not being casual and occasional, but repeated from time to time, and evincing a strong determination to carry into effect the objects which he states."

And Mr. Jacobs, in speaking of the weight to be given to the oral declarations of a party, says "The time, occasion, and manner of making them, their reasonableness and consistency with themselves and with the other proven facts in the case, the presence or absence of the suspicion of sinister purpose in making them, the character and temper of the person, as well as (if they are oral) the length of time which has elapsed between the time of their alleged utterance and the time when they are testified to, etc., enter materially into the estimation of their value. If they are not inconsistent with the acts, and are faithfully reported, they often serve to turn the scale; but it is other

wise, if they are contradicted by the acts and general conduct of the person making them. The peevish outburst of a person of irascible temper, or the careless expression of one whose habits are unstable and whose purposes are vacillating, are entitled to less weight than the deliberate utterances of a person of known firmness of character. So, too, expressions in conversations are of less value than repeated declarations made to proper persons, or declarations in the usual course of business. Mere declarations that a person prefers a residence in one country to another, it has been said, will not be regarded by a court, except in a nicely balanced case." Jacobs, Domicile, § 455.

they were so deliberately and frequently made as to preclude the idea of carelessness or inadvertence." They are circumstances which, with the deliberate acts of Mrs. Reed. indicate clearly that her intention was to retain her domicile in Portland and to dispose of her property according to the laws of this state, and the showing made by the contestants is not such as to require a court to defeat her expressed desires as to the devolution of her property by holding that her domicile was not where she supposed and intended it to be.

The decree is affirmed.

CO.

(48 Or. 525)

(Supreme Court of Oregon. Dec. 4, 1906.) 1. APPEAL — DECISIONS REVIEWABLE - JUDGMENT BY DEFAULT.

Under B. & C. Comp. § 548, providing that a party to a judgment other than a judgment given for want of an "answer" may appeal therefrom, a defendant declining to plead on the denial of his motion to strike out parts of the complaint cannot appeal from a judgment for the sum demanded in the complaint, a motion to strike not presenting an issue of fact or of law within the term "answer" as used in the statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 885.1

2. PLEADING MOTION TO STRIKE - OBJECTIONS TO RULINGS.

Within the rules thus laid down, the declarations and statements made by Mrs. Reed BROWNELL v. SALEM FLOURING MILLS to the witnesses for the proponents are manifestly entitled to more weight than those made to the witnesses for contestants. Mrs. Reed's relation to them was such as made them proper persons in whom to confide and with whom to converse frankly with regard to her affairs, and to whom she would be likely to reveal her intentions. Mr. Dolph was her legal adviser and friend of long standing, a man to whom she would natural ly disclose her real purpose and intent and especially so when it was necessary for him to be informed in regard to that matter in order to advise her intelligently and safely in her business affairs. Mrs. Winch was to her as a daughter with whom she talked freely and frankly. Mr. Winch was her nephew and business agent and would certainly have known of any intent on her part or that of her husband to change their domicile from Portland to California, and yet he testified that he never knew or heard of any contemplated change. Mr Patterson was a friend, and Miss Stevens was her maid. These witnesses were all in positions to know more of Mrs. Reed's intent and purpose than other witnesses in the case. They are all disinterested, without any object to gain or purpose to advance by exaggeration or distorting the truth. Indeed, Mr. Winch, who is a nephew of Mrs. Reed and one of the legatees in the will, would find his interest largely increased if the contestants could succeed.

The time, occasion, and manner of making the declarations to these witnesses, the fact that such declarations were frequently repeated and always consistent with each other and with the solemn declarations made by her in her several wills and written instruments, strongly corroborate the inference as to residence to be drawn from Mrs. Reed's acts and conduct. They were not expressions let drop in mere casual conversations or contained in friendly letters, but, as said by Chase, J., in Cruger v. Phelps (Sup.) 47 N. Y. Supp. 61: "Were made when there was no controversy, and cover such a long period of time as to preclude the idea of their being made with reference to property rights, and

parts of a pleading can be corrected by object-
An error in overruling a motion to strike
ing and excepting to the admission of the evi-
dence establishing the issue raised by the mat
ter sought to be struck out and an answer con-
tion not to consider such evidence.
troverting the same, and requesting an instruc

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 1172.]

Appeal from Circuit Court, Marion County;" George H. Burnett, Judge.

Action by S. S. Brownell against the Salem Flouring Mills Company. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

Geo. G. Bingham, for appellant. W. T. Slater, for respondent.

MOORE, J. This is a motion to dismiss an appeal on the ground that the judgment sought to be reviewed was given for want of an answer. A motion to strike out parts of the complaint was denied, and, the defendant declining further to plead, judgment was rendered against it for the sum demanded, from which an appeal was attempted to be taken. The statute, prescribing an appealable decision of a court, contains the following provision: "Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom." B. & C. Comp. § 548. Any pleading on the part of the defendant that interposes an issue of fact or of law is, in a general sense, de

nominated an "answer," and, under this very liberal definition, the formal mode of disputing the sufficiency of the plaintiff's primary pleading comes within the meaning of this term. Boone, Code Pl. § 58. Thus, when a demurrer to a complaint is overruled, and, the defendant refusing further to plead, a judgment or a decree is rendered against him, he may appeal therefrom on the ground that the issue of law thus tendered constitutes an answer. Kearns v. Follansby, 15 Or. 596, 16 Pac. 478; Hendy Machine Works v. Portland Savings Bank, 24 Or. 60, 32 Pac. 1036; Willis v. Marks, 29 Or. 493, 45 Pac. 293. An application for an order is a motion. B. & C. Comp. § 534. Its purpose, when a defect in a pleading exists, is particularly to point out some alleged irrelevant or redundant matter therein which may be stricken out. Id. § 86. "There can be no doubt," says Mr. Chief Justice Lord, in The Victorian, 24 Or. 121, 32 Pac. 1040, 41 Am. St. Rep. 838, "that the object of a motion to strike out is not to perform the office of a demurrer." The sufficiency of a pleading, as to matters of substance, must be tried on a demurrer, but, when the manner of stating the facts is defective for noncompliance with the rules of pleading, the remedy for its correction is by motion. 14 Enc. Pl. & Pr. 91. A motion, calling attention to a defective statement in a pleading, does not present an issue of fact or of law, and hence cannot, under the most liberal rule, be classed as an "answer."

It must be admitted, as was argued by defendant's counsel, that, if a motion to strike out irrelevant or redundant matter from a complaint be denied and such matter is controverted in the answer, the issue thus made is immaterial. An error committed in overruling a motion to strike out can be corrected, however, by objecting and excepting to the admission of evidence tending to establish such issue, and also requesting an instruction not to consider such evidence, which, if denied, the action of the court in this respect will be reviewed on appeal. Krewson v. Purdom, 11 Or. 266, 3 Pac. 822; Thomas v. Herrall, 18 Or. 546. 23 Pac. 497. It follows from these considerations that the appeal must be dismissed, and it is so ordered.

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Action by H. E. Noble against M. E. Wat kins and others, in which Florence E. Godfrey intervened. From an order sustaining a demurrer to intervener's bill, and from a decree in favor of plaintiff, intervener appeals. Affirmed.

This suit was commenced on January 26, 1904, by H. E. Noble to foreclose a mortgage given by defendant Watkins and wife to one D. D. Tennyson on certain real property in Columbia county to secure the payment of a promissory note for $800 in favor of Tennyson, dated December 23, 1896, due one year after date, which note and mortgage, it is alleged, were assigned and transferred to the plaintiff by Tennyson on August 1, 1903. After the issues had been made up, but before trial, Florence E. Godfrey, claiming to be an interested party, filed a bill of intervention, by leave of the court, in which she alleged that on January 14, 1904, and before the commencement of the suit, Tennyson, for a valuable consideration, made, executed, and delivered to her "a certain instrument in writing as his certain deed of conveyance and transfer of that certain note and mortgage mentioned in the original complaint herein, together with the debt evidenced and secured by the same, and your orator, for a valuable consideration, in good faith accepted said deed as such transfer and conveyance of said note, debt, and mortgage from said Tennyson, and shortly thereafter, and on the 18th day of January, 1904, duly and properly placed the same on rècord in said Columbia county, Or.; that it was the intention of said Tennyson and your orator, at the date of the execution of said deed, to give and receive a formal and legal assignment and conveyance of said note, debt, and mortgage, but by mistake and inadvertence the said deed was made and executed and accepted by your orator in good faith, and without notice, or knowledge on her part of any former transfer to or claim by said H. E. Noble, if any in fact there be." It is then alleged that immediately after the execution and recording of the deed from Tennyson to Mrs. Godfrey she entered into possession of the mortgaged premises with the consent and acquiescence of Watkins, and has ever since remained in the possession thereof; that the alleged assignment and transfer of the note and mortgage from Tennyson to Noble, mentioned in the complaint, was not recorded, and is, therefore, inferior and subject to her claim; that she is now the owner and holder of said note and mortgage, and entitled to foreclose the same. The prayer is that she be substituted as plaintiff in the suit brought by Noble, and for a decree in her favor. A demurrer was sustained to the bill of intervention and decree entered in favor of plaintiff, from which Mrs. Godfrey appeals.

Wm. A. LaForce and J. B. Godfrey, for ap

Appeal from Circuit Court, Columbia Coun- pellant. Richard W. Montague, for respondty; Thomas A. McBride, Judge.

ents.

BEAN, C. J. (after stating the facts). Several objections are made to the regularity and validity of the decree appealed from, such as that the complaint does not state facts sufficient to constitute a cause of suit, the decree is not supported by the evidence, and the like; but none of them are such as Mrs. Godfrey can raise unless her bill of intervention shows that she has an interest in the litigation which entitles her to be made a party thereto.

It is not entirely clear from some of the allegations of her bill what she bases her claim to intervene in the pending litigation upon. But, taking all the averments in connection with the admissions of her counsel in his brief, it is founded upon a deed of conveyance from Tennyson of the mortgaged premises. Such a deed did not operate as an assignment of the note and mortgage given by Watkins and wife to Tennyson, nor did it convey any interest in the mortgaged property. In jurisdictions where mortgages convey the legal title, it has been held that a deed of absolute conveyance by the mortgagee of the mortgaged premises will operate as an equitable assignment of the note and mortgage, when at the time of its execution the mortgagee was in possession. 20 Am. & Eng. Enc. Law (2d Ed.) 1029; Welch v. Phillips, 54 Ala. 309, 25 Am. Rep. 679. But where, as in this state, a mortgage on real estate does not convey an interest in the land, but constitutes only a lien or incumbrance thereor (Anderson v. Baxter, 4 Or. 105; Sellwood v. Gray & De Lashmutt, 11 Or. 534, 5 Pac. 196; Marx v. La Rocque, 27 Or. 45, 39 Pac. 401; Security Trust Co. v. Loewenberg, 38 Or. 159, 62 Pac. 6-17), it is clear that an instrument executed by the mortgagee which purports to convey to a stranger the mortgaged property cannot operate as an assignment of the mortgage as against third persons, unless the language of the conveyance is such as to manifest an intention to that end. Swan v. Yaple, 35 Iowa, 248; Johnson v. Lewis, 13 Minn. 364 (Gil. 337). Mrs. Godfrey, therefore, had no interest in the mortgage or in the mortgaged property that would entitle her to intervene in the pending litigation.

The averment in the bill that she is the owner and holder of the note and mortgage is manifestly the conclusion of the pleader from the facts stated, and cannot be regarded as an averment of a fact.

Decree affirmed.

(48 Or. 550)

CITY OF PORTLAND v. COOK et al. (Supreme Court of Oregon. Dec. 4, 1906.) 1. MUNICIPAL CORPORATIONS-POLICE POWER

-DELEGATION-CONSTITUTIONAL LAW.

The police power of a state may be delegated to a municipal corporation located therein. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1309.]

2. CONSTITUTIONAL LAW-POLICE POWEROBLIGATION OF CONTRACTS-IMPAIRMENT.

Where a city granted to Z. and his assigns the right to establish and maintain a packing house on particularly described premises, after which Z. expended a large sum of money in the improvement of the property on the faith thereof, the ordinance constituted a mere temporary license and not a contract which a city was prohibited by the state or federal Constitution from impairing by the subsequent repeal of the ordinance.

3. HEALTH-SLAUGHTERHOUSES-REGULATION. Though the maintenance of a slaughterhouse is a legitimate business, the place where it is conducted may, by reason of its proximity to the residence portion of a city or village demand its removal, though it may have been established pursuant to a statute or an ordinance authorizing it.

4. NUISANCE-SLAUGHTERHOUSE.

The occupation of a building in a city as a slaughterhouse is prima facie a nuisance to persons residing near it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 143, 151.]

5. MUNICIPAL CORPORATIONS-ORDINANCESPROHIBITION OF SLAUGHTERHOUSES - RE

PEAL.

After the repeal of an ordinance granting Z. and his assigns the right to maintain a packing house within the limits of a city, the city council passed an ordinance making it unlawful for any person to slaughter within the city limits any animal, the flesh of which was intended to be offered for sale. After this the city, under Sp. Laws 1903, p. 30, granting it the power to regulate, restrain, and exclude from the city slaughterhouses, passed another ordinance authorizing the operation of defendants' slaughterhouse within the city limits without any clause restricting violations of the previous ordinance or with reference to penalties incurred thereunder. Held, that the latter ordinance was only operative prospectively, and did not repeal the prohibitory ordinance in respect to violations thereof committed prior to the passage of the later ordinance.

6. SAME PROSECUTIONS FOR VIOLATIONS OF ORDINANCES-EVIDENCE-RELEVANCY.

Where defendants were charged with unlawfully killing animals, within the limits of a city, the flesh of which was intended to be sold, and also with maintaining a slaughterhouse within such territory, evidence that the operation of the slaughterhouse by a corporation tended to create a nuisance was irrelevant. 7. SAME-APPEAL-HARMLESS ERROR.

Where, in a prosecution for unlawfully killing animals within the limits of a city, the flesh of which was intended for food, and also with maintaining a slaughterhouse within such territory, defendants admitted the charge but claimed immunity therefrom, and the cause was tried without the intervention of a jury, defendants were not prejudiced by the erroneous admission of evidence that the operation of the slaughterhouse by the corporation tended to create a nuisance.

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by the city of Portland against J. H. Cook and others. From a judgment for plaintiff, defendants appeal. Affirmed.

S. B. Linthicum and Zera Snow, for appellants. Milton W. Smith, for respondent.

MOORE, J. This action was commenced April 7, 1905, in the municipal court of Portland by that city against J. H. Cook, James M. Neal, and T. W. Bigger for an alleged

- violation of an ordinance, prohibiting the killing, within the city limits, of animals, the flesh of which was intended to be sold, and also forbidding the maintenance within such territory of a slaughterhouse. The cause was tried and the defendants were convicted, June 30th of that year, and severally adjudged to pay a fine, from which sentence they appealed to the circuit court for Multnomah county, where they were again tried on a stipulation of facts, a jury having been waived, and, their motion to be acquitted having been overruled, they were again found guilty, and appeal to this court from the judgment which followed. The facts so stipulated are to the effect that, pursuant to a clause of the municipal charter then in force, which authorized the council "to license, tax, control and regulate slaughterhouses, and to provide for their exclusion from the city or any part thereof" (Laws Or. 1891, p. 806), ordinance No. 9641 was passed, February 12, 1896, granting to "L. Zimmerman and his assigns" the right to establish and maintain on his land in the city of Portland, particularly describing the premises, a packing house for curing all kinds of meat, and to erect other buildings in which to slaughter animals. Thereafter Zimmerman, who then was, ever since has been, and now is, the owner in fee of the real property so described, erected thereon the specified buildings, expending in such improvements more than $40,000, but subsequent thereto an ordinance was passed, repealing ordinance No. 9641. Notwithstanding such abrogation, Zimmerman thereafter continued to operate the business until November 1, 1901, when he leased the real property mentioned for a term of five years to the Northwestern Meat Company, a corporation, which, with his consent, sublet the premises for the remainder of the term to the Pacific States Packing Company, a like artificial being. The defendants, Cook, Neal, and Bigger, are the president, manager, and secretary, respectively, of the corporation last mentioned, and, as the agents thereof, were, on April 7, 1905, when this action was begun, engaged in killing, within the city limits and on the land so leased, animals, the flesh of which was intended to be sold, and were also maintaining on such premises a slaughterhouse. At that time ordinance No. 13,885, adopted April 6, 1904, was in force and provided that It should be unlawful for any person, within the city limits, to kill any animal, the flesh of which was intended to be offered for sale, or to maintain or use, within such territory, any building as a slaughterhouse, and prescribing as a penalty for a violation thereof a fine of not less than $5 nor more than $300, or imprisonment not less than five days nor more than 90 days. After this action was commenced, but before it was tried in the municipal court, ordinance No. 14,639 was passed, regulating the slaugh

ter of animals and the inspection of meats, from which we take the following excerpts, deeming them the only parts thereof involved herein: Section 3. "That from and after the passage of this act it shall be unlawful for any person, firm or corporation to slaughter, sell, or offer for sale the meat of any animal not considered game,' intended for human food, within the city of Portland, unless the same has been inspected and approved by the officers appointed and empowered by the city board of health. Section 6. "That the Pacific States Packing Company be known as 'the Portland Abattoir' where animals may be taken for slaughter and be inspected, and that not more than the following prices may be charged and collected by the person or corporation who now are or who may hereafter be operating the Portland Abattoir, or such other place or places as may be fixed by the board of health for slaughtering animals intended for human food within the city of Portland. Section 15. "That the firm, person or corporation violating any of the provisions of this ordinance shall, upon conviction, be fined not less than ten ($10.00) dollars, nor more than twenty-five ($25.00) dollars for each offense. * Section 16. "That this ordinance shall take effect from and after its passage, the welfare of the city requiring it."

It is contended by defendants' counsel that, conformable to the provisions of the municipal charter quoted, ordinance No. 9641 was passed, granting to Zimmerman the rights hereinbefore stated, acting on the faith of which he expended a vast sum of money in making permanent improvements upon the real property specified, whereby such right became a subsisting contract between him and the city which could not be impaired by subsequent legislation; that, the grant having also been extended to his assigns, the defendants, as agent of the corporation which secured a lease of the premises with his consent, had the same authority that he possessed to conduct the business thereat, subject only to municipal regulation that the slaughterhouse should not become a public nuisance or detrimental to the health of persons residing in the vicinity, and hence the circuit court erred in refusing to give a judgment of acquittal. The preservation of the public health and public morals is a duty devolving on the state, the discharge of which is denominated an exercise of the police power. This prerogative, though incapable of exact definition or limitation, may be delegated by the state to its agent, a municipal corporation, which is authorized to employ the measure of authority conferred. As the perpetuity of a stable government necessarily depends upon the security of the public health and the maintenance of public morals, neither the state nor its agent can bargain away this branch of sovereignty. As a corrollary

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