American Mortg. Co. v. Hutchinson

• Decision Date: 10 June 1890
• Citation: 19 Or. 334,24 P. 515
• Parties: AMERICAN MORTG. CO. v. HUTCHINSON et al.
• Court: Oregon Supreme Court

24 P. 515

19 Or. 334

AMERICAN MORTG. CO. v. HUTCHINSON et al.

Supreme Court of Oregon

June 10, 1890

Appeal from circuit court, Union county; JAMES A. FEE, Judge.

The respondent herein, a private corporation, commenced an action against the appellants to recover possession of certain real property situated in said Union county, alleging that they wrongfully withheld from said respondent the possession thereof. The appellants denied the allegations contained in the complaint, and alleged ownership of the property in themselves. A reply was filed denying the allegations of new matter set up in the answer. Thereupon the said parties entered into the following stipulation: "It is hereby stipulated by and between the plaintiff and defendant in the above-entitled action that the following is a complete and perfect abstract of all the conveyances to the land in controversy in this action, to-wit: The east one-half of the south-west one-fourth of section 23, township two south, of range thirty-nine east; and that said abstract may be received and read in evidence at the trial of said cause in lieu of the originals or certified copies: State of Oregon to E.J. Flanery. Grantor conveys by said deed, dated December 9 1872; recorded October 3, 1873, Book B, page 247; consideration, $100. E.J. Flanery to John E. Chrisman. Grantor conveyed by warranty deed, dated October 23, 1873 recorded October 23, 1873, Book B, pages 248 and 663 consideration, $50. John F. Chrisman to T.H. Foster. Grantor conveyed by warranty deed subject to mortgage to the state dated October 10, 1874; recorded June 10, 1876, Book B, page 664; consideration, $20. T.H. Foster and wife to F. Elliot. Grantor conveyed this and 240 acres of other land by deed of bargain and sale, dated April 24, 1876; recorded June 20 1876; Book B, page 665; consideration, $1,400. F. Elliot and wife to T.H. Foster. Grantor conveyed this and 240 acres of other land by quitclaim and special warranty against grantors or others claiming by, through, or under them, dated December 31, 1877; recorded February 23, 1883, Book F, pages 666 and 698; consideration expressed, $1. The true consideration is as follows: The grantor F. Elliot, having failed to pay the consideration for the conveyance from T.H. Foster and wife to him, reconveyed to Foster and wife for that consideration, to-wit, $1,400. T.H. Foster and wife to S.O. Swackhamer. Grantors convey deed of bargain and sale dated May 2, 1881; recorded May 2, 1881, Book E, page 184; consideration, $500. That subsequent to the execution and record of the last-named conveyance, and prior to the hereinafter described conveyance from T.H. Foster and wife to M.B. Baird, the said S.O. Swackhamer and wife reconveyed the said land to said T.H. Foster by quitclaim deed for the consideration of $500, but that said deed was not placed on record. F. Elliot and wife to Van B. De Lashmutt. Grantors conveyed this and 240 acres of other land by quitclaim deed dated June 16, 1881, and recorded June 20, 1881, Book E, page 247; consideration, $800. The grantee took this conveyance without actual notice of the prior conveyance of F. Elliot and wife to T.H. Foster, except such as will be presumed or inferred from the character of the deed, or the condition of the deed record of Union county, Or. Van B. De Lashmutt and wife to F. Elliot. Grantor conveyed this and 240 acres of other land by quitclaim deed, dated August 10, 1881; recorded September 2, 1881, Book E, page 328; consideration, $1. F. Elliot and wife to T.A. Wood. Grantor conveyed this and 240 acres of other land by quitclaim deed, dated August 21, 1881; recorded September 2, 1881, Book ___, page 329; consideration, $500. Grantee took this conveyance without personal notice of the prior conveyance of this land by F. Elliot and wife to T.H. Foster, except such as will be presumed or inferred from the character of the deed, or the condition of the deed record of Union county, Or. T.A. Wood to Brazella Chapman. Grantor conveyed this and 240 acres of other land by quitclaim deed, dated November 3, 1881; recorded November 10, 1881, Book E, page 399; consideration, $500. Brazella Chapman to T.A. Wood. Grantor conveyed this and 240 acres of other land by quitclaim deed, dated November 10, 1881; recorded September 7, 1882, Book F, page 307; consideration, $500. T.A. Wood to J.H. Cavanaugh. Grantor conveyed this and 240 acres of other lands by warranty deed, dated September 19, 1882; recorded September 27, 1882, Book F, page 309; consideration, $1,200.00. J.H. Cavanaugh to D.K. Smith. Grantor conveyed this and 240 acres of other lands by quitclaim deed, with special warranty against grantor, or any others claiming through or under him, dated March 5, 1883; recorded April 5, 1883, Book F, page 758; consideration, $650. D.K. Smith to J.H. Cavanaugh. Grantor conveyed this and 240 acres of other lands by quitclaim deed, with special warranty against grantor, and all others claiming under or through him, subject to the mortgage of the American Mortgage Co. of Scotland, limited, dated April 27, 1883; recorded April 30, 1883, Book G, page 55; consideration, $1. T.H. Foster and wife to M.B. Baird. Grantor conveyed by warranty deed, dated Feb. 9, 1884; recorded February 22, 1884, Book G, page 606; consideration, $800. J.H. Cavanaugh to D.K. Smith. Grantor conveyed this and 80 acres of other lands by quitclaim deed, with special warranty against grantor, and all others claiming through or under him, dated May 1, 1884; recorded May 17, 1884, Book G, page 705; consideration, $3,000. D.K. Smith to J.H. Raley. Grantor conveyed this and 240 acres of other lands by quitclaim deed, with special warranty against grantor, and all others claiming through or under him, dated Dec. 26, 1884; recorded January 13, 1885, Book H, page 399; consideration, $559.00. The American Mortgage Company of Scotland, Limited, vs. D.K. Smith, J.H. Raley, M.A. Raley, C.P. Huntington, Charles Miller, W.R.S. Foye, and Albert Gullatin. Foreclosure of mortgage and sale on execution thereunder, and purchased by this plaintiff at said sheriff's sale on the _____ day of _____, 1885. Said foreclosure was had under mortgage held by this plaintiff against this D.K. Smith on said land and other lands, which was recorded in Mortgage Record, Book ___, at page ___, on the _____ day of _____, 188__, the consideration being $_____. That said sheriff's sale was afterwards confirmed, and deed regularly issued to this plaintiff. That neither these defendants, nor those through whom they claim, were parties to said foreclosure. J.H. Hutchinson and W.R. Hutchinson vs. Nelson Shoonover, Administrator, and the widow and heirs of M.B. Baird, deceased. Foreclosure of mortgage and sale by the sheriff on execution thereunder, and purchase by these defendants at said sheriff's sale on the 10th day of April, 1888, and certificate of said purchase issued by said sheriff to them, and that said land has not been redeemed. Said foreclosure and sale was had under a mortgage in favor of these defendants, and against M.B. Baird and wife, the consideration being the sum of $1,200. This plaintiff was not a party to said foreclosure. It is further agreed that the recitals and memoranda, following each conveyance in said abstract, may be admitted in evidence as explanatory thereof. It is also agreed that said land was vacant and unoccupied during all the time covered by the conveyances mentioned in said abstract. This agreement shall not be held binding on either of the parties in any subsequent suit pertaining to this property."

The case was tried by a jury, and the only evidence adduced at the trial was the stipulation above set out; and verdict was rendered for defendant, which was afterwards, on motion of plaintiff, set aside, and a new trial granted. A second trial was had before a jury, and the same evidence, and no other, offered; and after instructions by the court the jury again rendered verdict for the defendants. Plaintiff again moved the court to set aside the verdict, and for judgment upon the stipulation, which motion the court granted, and then gave judgment for plaintiff for possession of the land in question, plaintiff having waived all claim for damages, which is the judgment appealed from.

(Syllabus by the Court.)

A circuit court has no authority to try an action of law involving an issue of fact without a jury, unless a jury trial is waived in the manner provided in the Civil Code. If such court deem such a case a proper one to be determined upon the law, it must direct the jury to return a verdict in favor of the party which the court considers entitled to it under the proofs.

A subsequent purchaser against whom an unrecorded conveyance is void, under section 3027, Ann. Code Or., must be a purchaser in good faith and for a valuable consideration, of "the same real property, or a portion thereof," included in the unrecorded conveyance, and must be a purchaser under a form of conveyance or other instrument which purports to convey the property. Hence a purchaser under a mere quitclaim deed, which only purports to remise, release, and quitclaim the right, title, and interest of the grantor in and of the property, will not be regarded "a purchaser of the same real property, or any part thereof."

Where F. was owner of a parcel of land which he conveyed to E., but E., having failed to pay for the land, conveyed it back to F., who neglected for several years thereafter to record the deed, and in the mean time E. executed a deed of quitclaim to D., who took the deed without actual notice of the prior conveyance by E. to F., except such as might be presumed or inferred from the character of the deed or the condition of the deed record of the county, and D. thereafter executed a quitclaim...