Katz v. Obenchain

• Court: Supreme Court of Oregon
• Writing for the Court: BEAN, C.J. (after stating the facts).
• Citation: 85 P. 617,48 Or. 352
• Parties: KATZ v. OBENCHAIN, Sheriff, et al.
• Decision Date: 12 June 1906

85 P. 617

48 Or. 352

KATZ
v.
OBENCHAIN, Sheriff, et al.

Supreme Court of Oregon

June 12, 1906

Appeal from Circuit Court, Klamath County; Henry L. Benson, Judge.

Action by Israel Katz against Silas Obenchain, sheriff of Klamath county and others. From a judgment for plaintiff, defendants appeal. Reversed.

On December 8, 1892, Quincy A. Brooks and wife mortgaged blocks 71, 72, 73, 86, and 87, in Klamath Falls, to the plaintiff to secure the payment of a promissory note for $1,250 due one year after date, and bearing interest at 10 per cent. per annum, and such mortgage was duly recorded on December 16, 1892. Brooks and wife were at the time and continued thereafter to be nonresidents of the state. On July 21, 1894, one Meyer commenced an action at law against them in the circuit court for Klamath county to recover money and caused the property included in the plaintiff's mortgage, together with a large amount of other real property belonging to them in that county, to be attached to satisfy any judgment he might recover. Thereafter service was had by publication upon Brooks and wife, and on November 20, 1894, Meyer recovered a judgment against them for $5,727.75 and costs, and an order adjudging and directing the sale of the attached property to satisfy the same. This judgment was immediately entered in what was used as the judgment lien docket, but was insufficient to create a lien because it did not show the time when docketed. Hutchinson v. Gorham, 37 Or. 347, 61 P. 431; Western Sav. Co. v. Currey, 39 Or. 407, 65 P. 360, 87 Am.St.Rep. 660. Soon after the rendition of the judgment an appeal was taken to this court, pending which Brooks and wife conveyed the mortgaged property to one E.C. Brooks. The Meyer judgment was subsequently affirmed, except in so far as it was a personal one against Brooks and wife. The mandate was entered in the court below on November 18, 1896, and the judgment again entered in the pretended judgment lien docket. On April 12, 1897, an execution and order of sale were issued thereon and all the attached property sold thereunder except that included within the plaintiff's mortgage. On May 30, 1898, E.C. Brooks and wife in consideration of the payment to them of $500 in money by the plaintiff, and the release by him of Quincy A. Brooks and wife from any liability on their note and mortgage, conveyed the mortgaged property to the plaintiff and he is now and has ever since been the owner thereof. On February 1, 1905, an alias execution was issued on the Meyer judgment, and the property conveyed by E.C. Brooks and wife to plaintiff seized and advertised for sale, when this suit was commenced by plaintiff to enjoin such sale. In his complaint he sets out in detail the giving of the mortgage to him by Brooks and wife and the recording of the same, alleges that no part of the principal or interest has been paid, and that on May 30, 1898, he demanded payment thereof, and thereupon E.C. Brooks and wife conveyed the mortgaged property to him in consideration of the payment to them of $500 and the release of Quincy A. Brooks and wife from further liability on such note and mortgage, and that such conveyance was recorded on October 30, 1900; that at the time of such conveyance E.C. Brooks was the owner in fee of the property, and that plaintiff accepted the conveyance from him and paid the consideration therefor in good faith, without knowledge of any lien or incumbrance on the property, and has ever since been in the peaceable and quiet possession thereof, paying taxes thereon, and has either by himself or through his tenants made valuable improvements to the extent of more than $3,000; that the defendant sheriff has seized and advertised the property for sale under the Meyer judgment, and that neither Meyer nor any one else has a valid and subsisting lien or claim on such property. The prayer is for an injunction restraining the sale of such property, and for such other and further relief as in equity may seem just. The defendants answered jointly, admitting and denying the allegations of the complaint, and for an affirmative defense pleads the Meyer judgment and the issuance of an execution thereon and that plaintiff's mortgage is barred by the statute of limitations. The reply puts in issue the averments of the answer,...