Dickson v. Back

• Decision Date: 27 December 1897
• Parties: DICKSON v. BACK et al. [1]
• Court: Oregon Supreme Court

51 P. 727

32 Or. 217

DICKSON v. BACK et al. ^[1]

Supreme Court of Oregon

December 27, 1897

Appeal from circuit court, Multnomah county; Henry E. McGinn, Judge.

Action by James Dickson against Seid Back and others. Judgment for plaintiff. Defendant Jung Sam appeals. Modified.

This is a suit to enjoin an execution sale of certain real property and to foreclose the lien of a mortgage thereon. The facts are: That on February 13, 1894, the defendant J.L. Hartman as receiver of the Northwest Loan & Trust Company, a corporation, commenced an action in the circuit court of Multnomah county against the defendant Seid Back and one William Dunbar to recover on their promissory note the sum of $2,500, and interest thereon at the rate of 9 per cent. per annum from August 19, 1892; and, having sued out a writ of attachment therein, the then sheriff of said county, on the next day, by virtue thereof, seized a stock of goods, the property of Seid Back, which he appraised at $13,407.55, and at the same time attempted to attach Seid Back's interest in the following described real property, to wit: Lots 5 and 8 in block 185, and lots 6 and 7 in block 138, in Couch's addition to the city of Portland; the W. 1/2 of lot 5 in block 26, lots 5 and 6 in block 119, and the E. 70 feet of the S. 1/2 of lot 2 in block 19, in said city; and lots 7 and 8 in McMillen's addition to East Portland,--and on the 23d of that month filed for record in the office of the clerk of the circuit court a certificate of the attachment of said real property. That, immediately upon the seizure of said goods, Seid Back, as principal, and the defendants Too Chute and Moy Back Hin (the latter signing as Twin Wo Charley), as sureties, executed to the sheriff a redelivery bond, in the usual form, whereupon said goods were delivered to Seid Back. That on February 23, 1894, Seid Back was indebted to the plaintiff in the sum of $12,500, as evidenced by certain promissory notes, to secure the payment of which he and Quay Chow Back, his wife, since deceased, for that expressed consideration, executed to plaintiff what purported to be a warranty deed of said lots 5 and 8 in block 185, and lots 6 and 7 in block 138, in Couch's addition to the city of Portland, and the W. 1/2 of lot 5 in block 26 in said city which deed was delivered in escrow to one W.H. Adams. That on April 3, 1894, plaintiff executed to Seid Back a defeasance which recited that the deed was intended to secure said notes, upon the payment of which he agreed to reconvey said premises, whereupon Adams, by order of the grantor, delivered the deed to plaintiff, who on the next day filed the same for record. That on September 29, 1894, Hartman obtained judgment in said action against the defendants, to satisfy which the real and personal property so attached was ordered sold. That Seid Back appealed from said judgment, and the defendants Chin Chong Quie, Goon Dip, and Moy Back Hin, as sureties executed an undertaking for the appeal, and for a stay of proceedings. That said judgment was affirmed ( Hartman v. Back, 28 Or. 580, 46 P. 1118), and, a mandate having been sent down, the lower court rendered judgment against Seid Back and his said sureties for the amount originally awarded, which was assigned to the defendant Jung Sam, who caused an execution to be issued thereon, by virtue of which the defendant George C. Sears, as sheriff of said county, levied upon the real property described in plaintiff's mortgage, and advertised it to be sold on November 6, 1895, prior to which plaintiff commenced this suit to foreclose the lien of his mortgage, and to enjoin the threatened sale, and in his complaint alleges, upon information and belief, that the consideration for the assignment of the Hartman judgment was furnished by the defendants Seid Back, Moy Back Hin, Chin Chong Quie, Goon Dip, or some of them, previously liable for the payment of said judgment, and that no attempt had ever been made by Hartman or Jung Sam to collect said judgment by a sale of the personal property so attached, or from the sureties on the redelivery bond, or on the undertaking for a stay of proceedings. The defendant Jung Sam, answering separately, and the defendants Moy Back Hin, Too Chute, Goon Dip, and Chin Chong Quie, jointly, after denying the material allegations of the complaint, allege new matters as defenses, which are put in issue by the replies. A trial was thereupon had, and the court found from the evidence the facts as hereinbefore stated, and that the defendant Thomas Mann had a lien on a portion of said premises which was prior to all other liens, and, as conclusions of law, found that plaintiff's lien was superior to the liens of the various defendants, except that of Thomas Mann; that the sureties on the redelivery bond, and on the undertaking for a stay of proceedings on appeal, are solvent; and that Jung Sam should be required to collect his judgment from the defendants Seid Back, Moy Back Hin, Goon Dip, and Chin Chong Quie, or some of them, before proceeding against the property included in plaintiff's mortgage, a foreclosure of which was decreed; and the defendant Sears was enjoined from selling said premises under the execution issued on the Hartman judgment, from which decree Jung Sam appeals.

Thos. O'Day, for appellant.

Geo. H. Williams, for respondent.

MOORE C.J. (after stating the facts).

The court does not assign any special reason for its deduction that plaintiff's lien is superior to the liens of the various defendants, etc., but we infer the conclusion was drawn from the finding of fact that "no certificate of attachment was filed by the said sheriff in the office of the recorder of conveyances or of the clerk of the county court in said county." Section 151, Hill's Ann.Laws Or., so far as necessary to an understanding of the question, provides that: "If real property be attached, the sheriff shall make a certificate containing the title of the cause, the names of the parties, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff, and the date thereof. Within ten days from the date of the attachment, the sheriff shall deliver such certificate to the county clerk of the county in which such real property is situated, who shall file the same in his office, and record it in a book to be kept for that purpose. When such certificate is so filed for record, the lien in favor of the plaintiff shall attach to the real property described in the certificate from the date of the attachment, but if filed afterwards, it shall only attach, as against third persons, from the date of such subsequent filing." It would seem that the lien, as against third persons, would attach to the real property from the date of the attachment, when the certificate is filed in the proper office within the prescribed time, and that the only evidence admissible to establish the existence of the lien, as against such persons, is the certificate itself, or a proper authenticated copy thereof (Drake, Attachm. [ 7th Ed.] § 236a); but, as against the owner and those who are in privity with him, the lien attaches to the real property from the time such persons have knowledge of the attachment. That is, third persons are bound by the notice which the certificate affords, while the owner of the fee and those who are in privity with him are chargeable with this notice, and also bound by such knowledge as they may have that the real property has been attached. It must be conceded that the voluntary conveyance by Seid Back to plaintiff created a privity of estate between them, but as there is no issue as to the latter's knowledge of the attachment, and since the deed was executed to him to secure a valid indebtedness, the consideration paid therefor was as valuable as that furnished by the attaching creditor; and, the equities being equal, the priority of their respective liens must depend upon the sufficiency of the notice which the certificate of the attachment affords.

The legislative assembly on February 17, 1887, in pursuance of the provisions of section 15, art. 7, of the constitution, abolished the office of county clerk of Multnomah county, and created in lieu thereof the office of clerk of the circuit court, clerk of the county court, and recorder of conveyances (Hill's Ann.Laws Or. §§ 2439-2455); and, the certificate required by the provisions of section 151 having been filed in the office of the clerk of the circuit court of said county, the important question for consideration is whether any lien upon the premises in question was created, as against plaintiff, by the attachment. The answer to this inquiry must depend upon a strict construction of the provisions of the statute applicable thereto; for, as was said by Thayer, J., in Schneider v. Sears, 13 Or. 69, 8 P. 841 "attachment proceedings are statutory, and, unless the statute is strictly pursued, no right is acquired under them." Counsel for appellant maintains that the sheriff, by filing the certificate of attachment in the office of the clerk of the circuit court, complied with the conditions imposed upon such officer by the statute, which abolished the office of the county clerk of Multnomah county, and in support of his contention relies upon subdivision 8 of section 2414, Hill's Ann.Laws Or., which provides as follows: "It shall be the duty of the clerk of the circuit court, and clerk of the county court in Multnomah county, for the court of which he is the clerk, *** (8) to exercise the power and perform the duties conferred and imposed upon him, as the clerk of such court, by this act or other law, or which is now required of or performed by the county clerk of Multnomah county as clerk of such court." Counsel for respondent...