Holmes v. Wolfard

• Decision Date: 31 July 1905
• Citation: 47 Or. 93,81 P. 819
• Parties: HOLMES v. WOLFARD.
• Court: Oregon Supreme Court

81 P. 819

47 Or. 93

HOLMES v. WOLFARD.

Supreme Court of Oregon

July 31, 1905

Appeal from Circuit Court, Marion County; R.P. Boise, Judge.

Suit by W.H. Holmes against A.G. Wolfard. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is a suit by W.H. Holmes against A.G. Wolfard to determnie an adverse interest in real estate. The facts are that W.R Smith, desiring, but being unable, to purchase the N.W. 1/4 of section 28, in township 7 S. of range 1 E., in Marion county, entered into a contract with one John Morley, whereby the latter paid the entire consideration, and as security therefor the owner of such real property executed a deed thereof to Morley, who agreed to convey the premises to Smith, upon the payment of the consideration and interest. Morley having received a part of the money loaned, the defendant, on January 22, 1901, at Smith's request, paid the remainder due, $444, taking as security therefor a deed of the premises executed by Morley, and giving Smith a bond for a deed, in which it was stipulated that the premises should be conveyed to the latter upon the payment of that sum and interest. Coolidge & McClaine, a corporation, having commenced an action against Smith in the circuit court for Marion county, secured a judgment therein February 3, 1902 for the sum of $786.89. Forty-four days thereafter, Smith, in consideration of a debt of $800, executed to plaintiff a quitclaim deed of all his interest in such real property. Coolidge & McClaine, on June 3, 1903, assigned its judgment to the defendant, who caused an execution issued thereon to be levied upon the premises in question, whereupon plaintiff moved to set aside the levy; but, the motion having been denied and no appeal taken from such action of the court, the sheriff of that county, on August 8, 1903, for the sum of $800, purported to sell to the defendant all the interest Smith had in the real property in question on the day such judgment was rendered, which sale was confirmed. The complaint states that plaintiff is, and ever since March 19 1903, has been, the equitable owner of such real estate, and in the exclusive possession thereof; that the defendant claims an estate therein adverse to him; and that such claim is without right. The answer denies the material allegations of the complaint, and for a further defense avers that Smith was the owner of the real property, and, being indebted to Morley, the latter held a deed to the premises, which was intended as a mortgage to secure the payment of the sum of $513. The facts, as hereinbefore stated, in respect to the transfer of the title by Morley to the defendant, the judgment secured by Coolidge & McClaine, and the proceedings thereunder are alleged; and it is also averred that no part of the sum loaned to Smith by the defendant has ever been paid, and that the defendant was compelled to pay the taxes imposed on such land as follows: February 26, 1902, $6.21 and March 14, 1903, $5.90; that at the time such judgment was rendered Smith was the owner of the real property in question; that it became subject to the lien of the judgment; that it was also incumbered with a lien for the sum loaned by defendant thereon; that plaintiff's interest therein is subordinate to such liens, and was extinguished by the sale thereof in the manner indicated. For a third defense, plaintiff's motion to set aside the levy of the execution, and the action of the court thereon, are alleged as a plea in bar to the maintenance of this action. The reply denies the material allegations of new matter in the answer, sets out the chain of title under which plaintiff claims the premises, and avers the facts in respect to the transfer of the title by way of security as hereinbefore stated; that Smith held possession of the land until he executed his deed to plaintiff, who in good faith entered into are retained the possession thereof, believing he had a valid title thereto, subject only to the payment of defendant's debt of $444, and interest and taxes, as alleged in the answer, no part of which has been paid. The cause being thus at issue, defendant's counsel, based on the pleadings, moved the court for a decree dismissing the suit on the grounds that the plaintiff was not the owner of the legal title of the premises in question; that the interest claimed by defendant in the real property is that of a lienholder for the sums loaned by him thereon and the judgment and costs adverted to, which are not adverse to plaintiff's estate in the real property; and that there is a departure between the averments of the complaint and of the reply, preventing a recovery on the prior pleading. This motion having been overruled, the cause was tried, resulting in a decree to the effect that plaintiff was the equitable owner of the real estate described in the complaint, subject, however, to the claim of the defendant on account of the loan of $444, with interest thereon at the rate of 7 per cent. per annum, since February 22, 1901, and the sums paid on account of taxes, with interest thereon at the rate of 6 per cent. since the payment thereof, upon the discharge of which plaintiff was entitled to a conveyance of the land, free from all claims of any kind whatever, and the defendant appeals.

Geo. G. Bingham, for appellant.

John H. McNary, for respondent.

MOORE, J. (after stating the facts).

It is contended by defendant's counsel that, if the execution issued on the judgment rendered in the action of Coolidge &amp McClaine against Smith was enforced against plaintiff's interest in the real property when it was not subject thereto, his remedy was to apply to the court to set aside the levy, and, having done so and taken no appeal from the denial of the motion, such action became final, thereby precluding the maintenance of this suit, in refusing to dismiss which an error was committed. A text writer, in speaking of a motion to quash a levy upon property under an execution, says: "The court will not, upon the motion of one not a party to the action, undertake to determine the title to the property levied upon. Therefore this is not a proper remedy for one whose property has been levied upon under execution against another, and whose claim is not that there was irregularity in the levy, but only that the officer has seized the property of a stranger to the writ." 2 Freeman, Executions (3d Ed.) § 271a. Holmes was not a party to the action of Coolidge & McClaine against Smith, in which the execution was issued; and, though there may have been a privity of estate between him and Smith, the motion to quash the levy, which he interposed, presented the question of title to the property, which the court very properly refused to consider. A judicial determination that will bar another suit or action on the same ground must be for relief which either was or could have been demanded and granted in the...