Elwert v. Reid

• Decision Date: 19 May 1914
• Citation: 70 Or. 318,141 P. 540
• Parties: ELWERT v. REID ET AL.
• Court: Oregon Supreme Court

141 P. 540

70 Or. 318

ELWERT v. REID ET AL.

Supreme Court of Oregon

May 19, 1914

On petition for rehearing. Denied.

For former opinion, see 139 P. 918.

RAMSEY, J.

The petition for rehearing says that J. B. Elwert, now deceased who brought this suit, did not obtain title to the real premises in dispute through the sheriff's deed referred to in the opinion of the court, handed down on March 31st last, but that her title "was derived solely through the decree in the case of Elwert v. Marley," and expresses the opinion that said decree was overlooked by the court in rendering the decree of affirmance. However, we did not overlook that decree, but formed the conclusion that it did not aid the plaintiff.

This suit was brought by J. B. Elwert, the mother of Carrie M Elwert, and, after it was commenced, she died, and Carrie M. Elwert and C. P Elwert were substituted in her stead as plaintiffs.

This suit was brought to obtain a decree of cancellation of a deed of conveyance dated August 21, 1906, made by Carrie M. Elwert to M. W. Parelius, conveying to him, for $3,600, lot 5 in block 2 of the city of east Portland, with its appurtenances and quieting the alleged title of J. B. Elwert to other lands described in the complaint, and in the petition for rehearing.

J. B Elwert never had a deed conveying to her any of the land described in the complaint, nor did she have any written evidence of title thereto. Her daughter, Carrie M. Elwert, purchased said lot 5 in block 2 in East Portland at sheriff's sale and received a sheriff's deed conveying said lot to her, and she, with the knowledge of J. B. Elwert, entered into a written contract to sell said lot to H. P. Palmer or his assigns for $3,600. Palmer paid her said sum for said lot, and in doing so he was acting as agent of M. W. Parelius. Before Carrie M. Elwert conveyed said lot to M. W. Parelius as assignee of Palmer, she, by the agreement with Palmer, permitted Palmer to bring a suit in equity, in her name, as plaintiff, against P. H. Marley, H. E. Noble, and J. Olsen, to quiet the title of said Carrie M. Elwert to the premises described in the petition for a rehearing, etc. The complaint in said suit alleged that Carrie M. Elwert (not J. B. Elwert) owned said property in fee, etc., and that Marley, Noble, and Olsen claimed some right or title in or to said premises, and that each of them denied the rights of Carrie M. Elwert in said premises, and that the claims of said parties in or to said premises were without any foundation whatever. In said suit said defendants answered, denying the plaintiffs' title to said premises, and alleging title in Noble, and claiming that Noble obtained his title to said premises through purchase at a tax sale and deeds of conveyance made in tax proceedings, etc.

The circuit court of Multnomah county, in said suit, rendered a decree that Carrie M. Elwert was the answer of said premises, in fee simple, and that the defendants therein had no title to any portion of said premises, and that said tax deeds were void, etc.

The petition for rehearing contends that the decree above referred to vested the title to said premises in Carrie M. Elwert, and that she held said title as trustee of her mother, J. B. Elwert.

1. If as counsel for the plaintiffs contends, the decree in Elwert v. Marley vested the title to the property in dispute in the plaintiff in that suit (Carrie M. Elwert), how did her mother, J. B. Elwert, get title to it? Counsel asserts that his client does not claim title to said premises through the sheriff's deed referred to in the former opinion, and that she obtained her title by virtue of said decree. If the decree vested the title in Carrie M. Elwert, she still owns it, unless she has...