Elwert v. Reid

• Decision Date: 31 March 1914
• Citation: 70 Or. 318,139 P. 918
• Parties: ELWERT v. REID ET AL. [d]
• Court: Oregon Supreme Court

139 P. 918

70 Or. 318

ELWERT v. REID ET AL. ^[d]

Supreme Court of Oregon

March 31, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Suit in equity by J. B. Elwert against William Reid and another to obtain a decree setting aside a deed of conveyance of certain real property in the city of Portland, and to quiet title to certain other real property in said city. The court below rendered a decree for the defendants, and the plaintiff appeals. Affirmed.

Geo. S. Shepherd, of Portland, for appellant. E. B Seabrook and J. F. Boothe, both of Portland (Boothe &amp Richardson and Malarkey, Seabrook & Stott, all of Portland on the brief), for respondents.

RAMSEY J.

On the 5th day of August, 1909, Mrs. J. B. Elwert commenced this suit against the defendants. By her complaint she alleges that she has been and now is the actual owner of the following described real premises in Multnomah county, state of Oregon: Lot 5 in block 2 in East Portland, according to the map and plat thereof, recorded in Multnomah county--and also of the following described premises: Beginning at a point 100 feet west of the southeast corner of said block 2 and running thence west to the low-water mark of the Willamette river, 50 feet; thence east to a point 100 feet west and 50 feet north of the southeast corner of said block 2; thence south to the point of beginning; together with the exclusive right to wharf out to the harbor line of the Willamette river, abutting said premises.

The plaintiff further alleges that on the 21st day of August, 1906, the plaintiff's daughter, Carrie M. Elwert, held the title to said premises as trustee for the plaintiff, and on said 21st day of August, 1906, H. P. Palmer induced said Carrie M. Elwert to sign some form of a paper, which was afterwards filled in as a deed to said lot 5, block 2, in East Portland, and is now recorded in book 369 on page 73 of Deed Records of Multnomah county, Or., and purports to convey to M. W. Parelius said lot 5 in block 2 in East Portland, according to the plat thereof.

The complaint alleges, also, that said H. P. Palmer and M. W. Parelius, at the time said paper was signed by said Carrie M. Elwert, knew that said Carrie M. Elwert held the title to said lot 5 in block 2 as trustee for this plaintiff, and knew, also, that she had no right to convey the same, without the consent of the plaintiff, and induced her to sign said paper on the representation that the same was to be held by said H. P. Palmer as trustee for this plaintiff, and not as an actual conveyance of lot 5 in block 2.

The complaint alleges, also, that at the time said paper was so signed by Carrie M. Elwert, said Palmer paid her the sum of $3,600, as a guarantee of good faith in holding said title, as trustee of this plaintiff, and that this plaintiff has at all times refused, and now refuses, to accept said sum as a consideration for said premises, or otherwise accept it, except to insure the good faith of said H. P. Palmer.

The complaint alleges, also, in substance, that on May 19, 1909, said Parelius executed a pretended deed, attempting to convey to the defendant William Reid said lot 5 and said other real premises; but that said Parelius never had any right, title, or interest in or to said premises, or any color of title to the premises last described, or any claim thereto, and that by said pretended deed Parelius has attempted, and is now attempting, to deprive the plaintiff of her real estate, and said deed casts a cloud upon the same.

The complaint alleges, also, that the defendants knew, at all times mentioned in the complaint, that Carrie M. Elwert held the title to said premises only as trustee for the plaintiff, and that the plaintiff would not, and did not, ratify said transfer.

The complaint alleges, also, that Carrie M. Elwert is willing, and has been willing, at all times, to return to said Palmer, or to whomsoever the court will determine is entitled to it, said sum of $3,600. The complaint asks for a decree annulling the said deed made by Carrie M. Elwert to M. W. Parelius to said lot 5 in block 2 in East Portland, and quieting the plaintiff's title to said other premises, described supra, and for general relief.

The defendants filed an answer, denying every allegation of the complaint, and alleging title to said premises in the defendant Reid, etc. A reply denied the affirmative matter of the answer. The court below, after hearing the evidence, rendered a decree in favor of the defendants.

1. The evidence shows that both parties claim title through a sheriff's deed made by George C. Sears, sheriff of Multnomah county, to Carrie N. Elwert, in the case of J. B. Elwert v. Mary E. Knott and others, upon a sale made upon a writ of execution in said cause, issued out of the circuit court of Multnomah county, and dated September 16, 1895. This deed bears date of March 7, 1896, and it states that the grantee paid for the real premises conveyed to her, by said deed of conveyance, $3,000.

There appears to be a clerical error in the name of said grantee. Her name is Carrie M. Elwert, and it is written in said deed as Carrie N. Elwert; but there is no doubt that Carrie M. Elwert was the purchaser of said premises, and that she received said deed.

The sheriff's deed described the real premises, thereby conveyed, as follows: "All the right title, interest, and claim which the said defendants in said suit (Mary E. Knott and others) * * * had on the 16th day of September, 1895, or at any time afterwards, or now have, in or to all of these certain lots, pieces, or parcels of land, situated, lying, and being in said county of Multnomah, state of Oregon, and more particularly...