Crossen v. Oliver

• Decision Date: 30 July 1900
• Citation: 37 Or. 514,61 P. 885
• Parties: CROSSEN v. OLIVER.
• Court: Oregon Supreme Court

61 P. 885

37 Or. 514

CROSSEN v. OLIVER.

Supreme Court of Oregon

July 30, 1900

Appeal from circuit court, Union county; Robert Eakin, Judge.

Ejectment by M.S. Crossen against E.W. Oliver for the possession of land. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action to recover the possession of real property. The plaintiff claims under a deed from Mrs. M.M. Caldwell, dated January 25, 1895, and recorded February 27, 1896; and the defendant claims title from the same party by sheriff's sale under an execution issued upon a judgment rendered in favor of Turner Oliver and against Mrs. Caldwell April 2, and docketed April 4, 1895. There were two trials in the court below. At the first the plaintiff had a verdict in accordance with the prayer of his complaint, and at the second the verdict was for the defendant, upon which judgment was rendered dismissing the action, and plaintiff appeals.

L.A. Esteb, for appellant.

T.H Crawford, for respondent.

WOLVERTON J. (after stating the facts).

The first assignment of error is based upon the action of the court in setting aside the first verdict and granting a new trial. The reason assigned by the court for such action is that the jury were imperfectly instructed relative to the sufficiency of the notice or knowledge of Turner Oliver in respect to Crossen's unrecorded deed to render his judgment inferior and subject thereto. The court instructed the jury that a judgment, in order to have precedence over an unrecorded deed, must have been taken in good faith and without notice or knowledge of such deed, but the method or the manner of the notice that would suffice to subordinate the judgment lien was not further or more particularly described or defined. The plaintiff argues that the instruction was favorable, rather than prejudicial, to the defendant, and therefore that he has no cause of complaint. But in this we cannot concur. For aught we know, the jury may have been induced to base a finding of notice upon slight circumstances, remotely disconnected from the subject, and wholly insufficient to warrant it. It is evident from the instructions contained in the record that there was an issue relative to the manner of notice requisite to the subordination of the judgment lien to the unrecorded deed and the court very properly held that the jury should have been further instructed in the premises.

In the course of the second trial the defendant called G.W. Benson the county clerk, and ex officio clerk of the circuit court, who identified the judgment roll in the case of Turner Oliver v. M.M. Caldwell, and the same was introduced in evidence. The witness was then shown the execution under which the land had been sold at sheriff's sale, with the accompanying return, which, on being identified, the defendant attempted to introduce in evidence, whereupon the plaintiff objected because it appeared from the paper that changes had been made in the return which had not been accounted for or explained. It was then shown by the witness that he knew and was familiar with the handwriting of J.F. Phy, the sheriff, and that the return was in his handwriting; that the name "Turner" had been erased, and the initials "E.W." inserted, so as to make it read, "E.W. Oliver," instead of "Turner Oliver"; and that the change had been made prior to the filing of the return in his office. The execution and return were thereupon admitted in evidence over objection, and error is assigned. It is the duty of the sheriff to make the return and file it with the clerk, and in this instance it appears that it was so made and filed; that it was in the identical condition, as regards the erasure and change, when filed as when offered in evidence; and that the handwriting in which the change was effected was that of the sheriff who made the return. It is a reasonable presumption, under such conditions, that the change was made by the sheriff when making the return. At any rate, it appears that there has been no erasure or change made therein since it was filed, and hence it was competent as evidence, under section 788, Hill's Ann.Laws Or. See Nickum v. Gaston, 28 Or. 322, 42 P. 130. And a memorandum of sales made by the sheriff, subsequently offered for the purpose of showing that a change had been made in the return, was properly excluded. Such evidence would operate to impeach the return, and it was professedly not offered for that purpose. The return showed upon its face that a change had been made therein, but it was evidently made by the officer whose duty it was to prepare it, and the same was filed and became effective in that form, so that the proffer of the memorandum was irrelevant for the purpose designed.

M.S Crossen, the plaintiff, took the stand in his own behalf, and testified, among other things, that Mrs. M.M. Caldwell executed a deed to him of the land in question, and that he received the same from her; that the consideration therefor was a year's labor and three cows, for which Mrs. Caldwell was indebted to him; and that she turned the land over to him for such indebtedness. The deed was handed to the witness and identified by him as the one which she had executed, whereupon it was offered in evidence. It was regularly and duly executed, dated January 25, 1895, and had indorsed thereon the recorder's certificate, showing that it had been recorded February 27, 1896. The witness further testified that he went into possession of the land in the spring of 1895, and remained in possession until the spring of 1897, when E.W. Oliver entered thereon. There was other evidence offered, with a view of showing that at the time Turner Oliver obtained judgment against Mrs. Caldwell he had either direct notice or had acquired knowledge of such pertinent and relevant facts as made it incumbent upon him to make further inquiry, which, if made, would have led to positive information touching the existence of Crossen's unrecorded deed. In view of the evidence thus adduced, the court gave instructions as follows: "(11) If you find from the evidence in this case that Turner Oliver had...