Berry v. King

• Citation: 13 P. 772,15 Or. 165
• Parties: BERRY v. KING and another.
• Decision Date: 25 April 1887
• Court: Oregon Supreme Court

13 P. 772

15 Or. 165

BERRY v. KING and another.

Supreme Court of Oregon

April 25, 1887

Kelsay & McFadden, for appellants.

J.W Rayburn, for respondent.

LORD C.J.

This was a suit in equity to enjoin the defendants from selling certain lands, now owned by the plaintiff, upon a certain execution issued for that purpose. Briefly, the facts are that one C.S. Preston commenced a suit in March, 1881, to foreclose a mortgage upon certain lands described therein executed by George M. Stroup and wife to secure the payment of a certain note to J.J. Whitney, which was duly assigned to him. After due and legal service, no appearance was entered by the defendants Stroup, and a decree by default was rendered, ordering the sale of the mortgaged property, and providing, in the event of a deficiency after such sale, for a personal judgment for the balance. This decree was duly docketed, and subsequently an execution was issued under which the mortgaged property was sold, but for an amount less than the amount due, which was credited, and no other payments have been made. At the time the decree was docketed Stroup was the owner of certain other real property which, by mesne conveyances, the plaintiff Berry now owns, and against which property the execution sought to be enjoined was issued to sell for the payment of such deficiency, at the instance of the defendant King, in the present suit, who claims to be the owner of said judgment by assignment. Substantially upon this state of facts, the court found as a conclusion of law that the decree in the foreclosure suit was void, presumably on the ground that the complaint in that suit did not state facts sufficient to constitute a cause of suit, and that the plaintiff was entitled to have the injunction made perpetual. It will be noted that the plaintiff in this suit took the property subject to the lien of the judgment upon which the execution is now issued, and which he seeks to enjoin. Having taken the land subject to a lien, of which the grantor made no complaint, he is entitled to no indulgence; and, unless the decree is void,--a nullity,--the land in question should be devoted to its payment. The attack of the plaintiff being collateral, and against a decree to which he was not a party, and in no way affected his rights at its rendition, and with which his grantors were satisfied, he cannot impeach or avoid it, or enjoin an execution issued upon it, unless the decree is void for want of jurisdiction in the court which pronounced it. The objection urged is that the complaint in the foreclosure suit does not set out the condition of the mortgage. The...