Alexander v. Munroe

• Decision Date: 25 May 1909
• Citation: 101 P. 903,54 Or. 500
• Parties: ALEXANDER v. MUNROE et al.
• Court: Oregon Supreme Court

101 P. 903

54 Or. 500

ALEXANDER v. MUNROE et al.

Supreme Court of Oregon

May 25, 1909

Appeal from Circuit Court, Washington County; Thomas A. McBride Judge.

Suit by Jessie Alexander against Edith Munroe and others, in which Zera Snow and others filed cross-bills, to enforce a partial assignment of a judgment and to foreclose mortgages. From a judgment granting relief as prayed for in the cross-bills defendant Edith Munroe appeals. Affirmed.

Jackson Munroe, in a divorce suit against defendant Edith Munroe besides the decree of divorce, recovered a judgment for the sum of $1,487, rendered July 21, 1891. Pending that suit Edith Munroe conveyed to her mother, Margaret Vedder, and another, in fraud of Jackson Munroe, the real estate involved here, and on August 4, 1891, Jackson Munroe brought a creditor's suit against them to cancel such conveyances and subject the property to the payment of his judgment. The latter suit resulted in a decree, July 19, 1894, in favor of Jackson Munroe, for the recovery of the amount of the original decree and interest, $2,465.05, and adjudging the deeds void as to him, and subjecting the property to the payment of the judgment; and that it is a lien on such real property, namely, beginning at the southwest corner of the donation land claim of D.B. Dustin, in Washington county Or., and running thence north 140 rods, thence east 91 5/14 rods, thence south 140 rods, and thence west to the place of beginning.

Thomas H. Tongue, now deceased, represented Edith Munroe, as her attorney, in all of the litigation, and until the year 1896. Zera Snow and S.B. Huston were counsel for Jackson Munroe therein. Pending such litigation, and subsequent to the decree in the divorce suit, Jackson Munroe duly assigned to Huston and Snow one-half of the judgment in the divorce suit, in the following words: "Whereas, the undersigned, Jackson Munroe, was defendant in a divorce suit brought against Mr. Munroe in the Washington county circuit court by a decree in which, after an appeal to the Supreme Court of the state and a direction therefor, there was decreed to said Jackson Munroe the payment of certain moneys. And whereas, there is now pending by the said Jackson Munroe against Edith Munroe and others in the said circuit court for the county of Washington a suit to charge upon certain landed premises as a lien the said moneys decreed to the said Jackson Munroe, the said landed premises consisting of the following described property, to wit: Commencing at the southwest corner of the donation land claim of D.B. Dustin; running thence north 140 rods; thence east 91 5/14 rods; thence south 140 rods; thence west to the place of beginning, containing 80 acres: Now in consideration of legal services rendered by W.B. Gilbert, Zera Snow, and S.B. Huston, and in consideration of future services to be rendered in the said cause last above named. I, Jackson Munroe, do hereby assign and transfer to Zera Snow and S.B. Huston one-half of my claim embraced and determined by the divorce suit above mentioned, and embraced in the suit last above named, pending in Washington county, together with an undivided half interest in the security therefor now claimed upon the landed premises above described, together with an undivided half interest in the said landed premises. And it is understood likewise that in the event that there shall be any advance made by the parties to whom this transfer is made, or either of them, an account of the same shall be kept and the same shall be chargeable against my remaining interest in the said claim and premises. Executed in triplicate. Dated at Portland, Oregon, December 31, 1892. Witness my hand and seal. Jackson Munroe. [ Seal.] Executed in the presence of Olive A. Jenner."

Afterwards on June 20, 1896, Jackson Munroe and Edith Munroe, in consideration of $500 paid by Edith to Jackson, compromised the subject of the litigation, and Jackson executed to Edith a cancellation of the judgments and decrees, and also a quitclaim deed to the property, at which time the second suit was pending upon appeal in the Supreme Court, and, as part of the agreement of settlement, the appeal was dismissed; but before the cancellation of the decrees was filed, July 6, 1896, Snow and Huston commenced a suit against Jackson and Edith Munroe et al. to enjoin the filing thereof and to secure their interest in the decree on the ground that such settlement was executed and taken by Edith Munroe with full knowledge on her part that Snow and Huston were the owners and equitable assignees of one-half thereof, and of the lien securing the same; and that such cancellation and deed were executed by collusion and conspiracy, between Jackson and Edith Munroe, for the purpose of defrauding Snow and Huston of their rights in the decree, which suit is still pending. At the time the cancellation of said decrees was executed, July 20, 1896, Thomas H. Tongue furnished $500 to Edith Munroe with which to pay Jackson Munroe the amount of said settlement and took a mortgage from her in the sum of $1,000, upon the land in question, to secure the sum so advanced and his attorney fees. He also held, at that time, another mortgage upon the same property, executed May 20, 1893, securing the sum of $275.

The present suit was commenced December 8, 1904, by Jessie Alexander against Edith Munroe, appellant, Jackson Munroe, Zera Snow, S.B. Huston, and E.B. Tongue, administrator of the estate of Thomas H. Tongue, deceased, et al., to foreclose a mortgage executed for his benefit by Mrs. Vedder prior to the commencement of this litigation, and in regard to which there is no controversy here. The issues arise upon the cross-bills of Snow and Huston and E.B. Tongue, administrator, against Edith Munroe et al. Snow and Huston by their cross-bill seek to enforce against Edith Munroe and the property, through the decrees, the equitable assignment to them by Jackson Munroe of a half interest in such decrees, which cross-bill recites the facts above set forth. In the answer of Edith Munroe to the cross-bill of Snow and Huston, she pleads: That, no execution having issued on the decree of July 21, 1891, their claim against her is barred by limitation, and that they have no interest in any judgment against her on which execution has issued within 10 years prior to the commencement of this suit; that she is not personally liable to them; and that the judgments are satisfied by her settlement with Jackson Munroe. She also pleads that Snow and Huston are, and ought to be, estopped from claiming any lien in the judgments, because after the cancellation thereof on July 6, 1896, they, with full knowledge of all the facts, commenced an attachment suit against Jackson Munroe for the amount of their claim, for the purpose of attaching the $500 paid to him in the settlement on June 20, 1896. The attachment suit is admitted by Snow and Huston, but they deny that it was with knowledge of the facts, and aver that it was commenced at the request of Edith Munroe and for her benefit, and was dismissed long before the commencement of this suit. Snow and Huston, in their reply, by way of estoppel, say that Edith Munroe is and should be estopped from claiming the statute of limitations, because she prevented and refused to permit the clerk to issue execution on said judgment when directed by Snow and Huston within the period of limitation. The defendant E.B. Tongue, administrator, by his cross-complaint, seeks to foreclose the two mortgages held by him against Edith Munroe upon the property; the first one being for the sum of $275, dated May 20, 1893, with an alleged credit thereon of $75, dated September, 1903, and the second one being dated June 11, 1896, for the sum of $1,000. By an answer filed after the trial, January 13, 1906, Edith Munroe pleads the bar of statute of limitations to the first of these mortgages, denies the credit of $75 thereon, and alleges that the second mortgage was without consideration. The pleadings make some issues between Snow and Huston and Tongue, but their differences have been stipulated and require no consideration. The pleadings in the case are quite lengthy, but we think this statement will sufficiently disclose the points involved here.

E.B. Watson, for appellant.

S.B. Huston and T.H. Tongue, Jr., for respondents.

EAKIN, J. (after stating the facts as above).

Considering first the cross-bill of Snow and Huston, the most important question is whether, by reason of the fact that no execution issued within 10 years after the...