Hamm v. McKenny

• Citation: 144 P. 435,73 Or. 347
• Parties: HAMM v. MCKENNY ET AL.
• Decision Date: 10 November 1914
• Court: Supreme Court of Oregon

144 P. 435

73 Or. 347

HAMM v. MCKENNY ET AL.

Supreme Court of Oregon

November 10, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Suit to quiet title by Mary Hamm against Gertrude McKenny and others. From decree for plaintiff, defendants appeal. Affirmed.

This is a suit to quiet title, in which the plaintiff alleges that she is the owner and in possession of certain real property in which the defendants claim an estate adverse to the plaintiff, but without any right whatever. Denying the plaintiff's assertion of ownership the defendants admit that they claim an interest in the realty in question amounting to a cloud upon the plaintiff's estate. They claim to deraign title from their ancestor, S.W. Milan, who with his wife executed a mortgage on the premises and afterwards died, leaving children, some of whom are defendants here, the remaining defendants being either descendants of deceased children of the original mortgagor or related to them by marriage. They trace the history of a foreclosure suit based upon the mortgage mentioned and resulting in a sale of the premises, but they contend that the proceedings were so defective that plaintiff is no more than a mortgagee in possession. They pray for a decree adjudging them to be the owners in fee of the property, and pray that the court allow them to redeem the same from the mortgage and order a sale of the premises for that purpose. The new matter in the answer is traversed in many particulars, and the plaintiff affirmatively replies that:

"She has been in the open, notorious, and adverse possession of said property, claiming to own the same for more than 10 years last past."

From a decree in favor of the plaintiff quieting her title to the property, the defendants appeal.

A Hansen and H. S. Westbrook, both of Portland (Westbrook &amp Westbrook, of Portland, on the brief), for appellants. W. Y. Masters and W. H. Masters, both of Portland (Masters, Brice & Masters, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

It appears that the mortgagor and his wife both died prior to the foreclosure of the mortgage. Surviving them were their children, Alfred Milan, and their daughter, Gertrude McKenny both of whom appear to have been above the age of majority at that time. The next child was Elizabeth Milan, born April 9 1881, and past 17 years of age when the foreclosure suit was begun on November 2, 1898. She afterwards married Benjamin Pelcher, and died in 1903. She left as her sole heir Alice May Bolan, so named in this suit because she was adopted by a man named Bolan. Her age is given in the testimony at 11 years. The three remaining children of the original mortgagor were Marie Milan, Daisy Milan, and Annie Milan, the latter of whom was the youngest of all the children, and aged 12 years at the commencement of the foreclosure suit. Alfred Milan died in March, 1906, and his wife in November of that year, leaving three children, Herbert, aged 14, Eva, 11, and Howard, 9 years, at the hearing of this suit. The foreclosure suit resulted in a sheriff's sale, at which the mortgagee became the purchaser and entered into possession. The sheriff's deed to her bears date September 18, 1900, and the defendants here claim from the original mortgagee, purchaser at the foreclosure sale, by a duly executed conveyance. The testimony discloses continued possession by the plaintiff and her predecessors under the sheriff's deed to the present time.

Passing the question of whether this defense is available as against the objection that it is a collateral attack upon the decree, the controversy will be determined upon whether or not the plaintiff has title by prescription. In passing we note that at the trial the plaintiff was permitted to amend her complaint to the effect "that plaintiff had been in the open, notorious, and adverse possession of the property, claiming to own same under color of title for more than ten years last past," which amendment was denied by the defendants. The defendants objected to this change in the complaint and contend that it was asserting a different cause of suit. We regard this as negligible because the plaintiff was entitled to prove her allegation of ownership by testimony establishing title by adverse possession. As said in Neal v. Davis, 53 Or. 423, 435, 99 P. 69, 73:

"The defendants have also pleaded title in fee in themselves which is also denied by the reply. But to prove such averment defendants are not to be confined to evidence of a paper title, or to a title derived through the deed from Mrs. Neal, as apparently it has been assumed by counsel, but evidence on their part of adverse possession of the property for the statutory period extinguishes adverse titles and ripens into a perfect title in the possessor and becomes a vested right as though evidenced by a written title" (citing Parker v. Metzger, 12 Or. 407, 7 P. 518; Joy v. Stump, 14 Or. 361, 12 P. 929; Mitchell v. Campbell, 19 Or. 198, 24 P. 455; Gardner v. Wright, 49 Or. 609, 91 P. 286).

The amendment to the complaint was unnecessary, but was harmless error.

The contention of the defendants that the plaintiff merely occupies the position of a mortgagee in possession, and that on account of such relationship to the property they are entitled to redeem it from the lien of the mortgage, is erroneous. This proposition would be sound if the plaintiff or her predecessors in interest had entered into the possession of the mortgaged premises by the consent of the mortgagor, and an effort to redeem had been initiated within the limitation period prescribed by the statute. The right to foreclose a mortgage and the right to enforce redemption of the property from its lien are correlative in their nature, and they are governed by like limitations. The record, however, clearly establishes that the plaintiff and her predecessors in interest did not enter into possession of the premises by the consent of the mortgagor or his heirs, the defendants here. The possession was obtained through the hostile proceeding of a suit in equity having for its object the extinguishment of the title of the defendants. Conceding for the purpose of the discussion that the decree was voidable or even void for want of jurisdiction over the person of some or all the defendants in the foreclosure suit, yet the sheriff's deed purporting on its face to convey the property to the purchaser at the sale constitutes such color of title or claim of right as will form the basis of an estate in fee simple by prescription, provided the purchaser takes actual possession of the premises under the deed and maintains it openly, continuously, notoriously, and adversely to the defendants and in other respects for the length of time necessary to constitute title by prescription. In H. B. Claflin Co. v. Middlesex Banking Co. (C. C.) 113 F. 958, on this point the court said:

"The possession of the banking company, taken on the 27th of November, 1894, was adverse to the mortgagor, his grantees, and every one else. Had the banking company or its trustee taken possession of the premises as mortgagees, without the foreclosure proceeding, then the result would be different, and their

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