Lombard v. La Dow

• Decision Date: 21 September 1903
• Docket Number: 918.
• Citation: 126 F. 119
• Parties: LOMBARD et al. v. LA DOW et al.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F. 119

LOMBARD et al. v. LA DOW et al.

No. 918.

United States Court of Appeals, Ninth Circuit.

September 21, 1903

This suit was commenced by the appellee Lewis McArthur La Dow in the circuit court of the state of Oregon for Umatilla county in August, 1900, to partition certain real property between himself and the North American Trust Company, and to quiet the title to certain portions of the same property as between himself and Letitia Lombard, whose interest is represented by the appellants. The plaintiff claimed to be the owner in fee simple of the undivided one-half interest in lots 3, 4, 5, 6 7, 8, 9, and 10, in block 8, in the city of Pendleton. The complaint alleged that Letitia Lombard was asserting some claim or interest in a part of the real property, but in fact had no interest in said property. The property claimed by Letitia Lombard is a piece 27 feet and 5 inches by 100 feet on the west side of lots 7 and 8, in block 8, of the above-described property. The prayer of the complaint is for a decree of partition of said property between Lewis McArthur La Dow and the North American Trust Company, and for a decree that Letitia Lombard has no claim upon or interest in any portion of the real property in controversy. The defendant Letitia Lombard then filed a petition and undertaking for removal of said cause to the United States Circuit Court for the district of Oregon, alleging that the suit was of a civil nature, to partition between the plaintiff and the defendant North American Trust Company the land described in the complaint, and a suit to quiet title between the plaintiff and the defendant Letitia Lombard to the portion of the property claimed by her, and that there was in said suit a controversy which was wholly between citizens of different states, and which could be fully determined as between them to wit, a controversy between the defendant Letitia Lombard a citizen of the state of Illinois, and the plaintiff, a citizen of the state of Oregon. Upon giving the bond for removal, as provided by law, the cause was removed to the Circuit Court of the United States for the district of Oregon. Thereupon the plaintiff, by leave of the court, filed an amended bill of complaint. The defendant Letitia Lombard having died during the course of the proceedings, the appellants herein were substituted as her representatives, Benjamin M. Lombard and Charles H. Lombard as her sole heirs at law, and Franklin S. Akin as her administrator.

It appears that one George A. La Dow died intestate in Umatilla county, Or., about November 1, 1876, leaving surviving him Mattie A. La Dow, his widow, and Frank E. La Dow, and the complainant Lewis McArthur La Dow, minor children; that the said minors, by the death of the said George A. La Dow, became the owners in fee simple of real property described as lots numbered 3 to 10, inclusive, in block 8, in the city of Pendleton, state of Oregon, subject to the dower rights of the said Mattie A. La Dow; that the said Mattie A. La Dow was, about November 11, 1876, appointed guardian of the person and estate of the complainant Lewis McArthur La Dow, and continued to be such guardian until on or about the 12th day of September, 1889; that on that day proceedings were instituted by the said Mattie A. La Dow in the county court of Umatilla county, Or., for the sale of the complainant's interest in the inherited property, and one Charles H. Carter was appointed guardian ad litem of the complainant, who was then about 14 years old. Frank E. La Dow had attained his majority on December 23, 1888. A sale of the complainant's interest was ordered on October 12, 1889. The record of the proceedings show that the sale was made on November 14, 1889, to one Charles B. Isaac, for the consideration of $15,000. The sale was confirmed by the court on January 8, 1890, and on January 11, 1890, Mattie A. La Dow guardian of Lewis McArthur La Dow, conveyed to C. B. Isaac the undivided one-half interest in said lots 3 to 10, inclusive, in block 8, in Pendleton, Or., subject to the dower right of Mattie A. La Dow. This deed was witnessed, sealed, and acknowledged so as to be entitled to record, and filed for record on January 20, 1890. As we shall see presently, no such sale was in fact ever made, but these proceedings constitute a link in the chain of title claimed by the appellants to the property in controversy. On March 13, 1894, Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac conveyed the whole of the property to James A. and Bertha Howard for the expressed consideration of $40,000. On January 21, 1895, James A. and Bertha Howard conveyed to B. M. Lombard a one-half interest in the portion of the property now claimed by Letitia Lombard. On May 10, 1895, B. M. Lombard conveyed the interest he had acquired to Letitia Lombard. On October 7, 1896, James A. and Bertha Howard conveyed an undivided half interest in a portion of the same property to Letitia Lombard, thus vesting the whole title to the lot therein conveyed in Letitia Lombard, if the conveyances are found to be valid.

The record discloses, however, another and different transaction relating to the title to this property. It appears that Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac signed an instrument dated at Kansas City, Mo., September 1 1889, in which lots 3 to 10, inclusive, of block 8, in the city of Pendleton, Or., were mortgaged to the Jarvis-Conklin Mortgage Trust Company, of Kansas City, to secure the payment five years after that date of the sum of $17,350. The mortgage was acknowledged by Mattie A. La Dow on September 14, 1889, before J. C. Oliver, a notary public of Los Angeles county, Ca., and by Frank E. La Dow and Charles B. Isaac on September 27, 1889, before E. E. Sharon, a notary public of Umatilla county, Or. The mortgage so acknowledged was filed for record September 27, 1889. As there was no certificate as to the official character of the acknowledging officer before whom Mattie A. La Dow made her acknowledgment, she made a second acknowledgment of the mortgage before E. E. Sharon, a notary public of Umatilla county, Or., on November 22, 1889, and the mortgage, thus acknowledged, was again filed for record on that day. On December 14, 1889, the Jarvis-Conklin Mortgage Trust Company assigned all its right, title, and interest in and to this mortgage to S. L. Conklin, and on November 25, 1896, Conklin commenced a suit in the circuit court of the state of Oregon for Umatilla county against Mattie A. La Dow, Frank E. La Dow, Lewis McArthur La Dow, Charles B. Isaac, James A. Howard and Bertha A. Howard, his wife, Letitia Lombard, and others, for the purpose of foreclosing the mortgage. The defendants appeared and resisted the foreclosure proceedings, the defendant Lewis McArthur La Dow setting up as a defense the facts concerning the proceedings taken in the county court for the sale of the property by Mattie A. La Dow, as his guardian, alleging the filing of the petition in the county court for the sale of the property, the order of sale by the court, and the sale of the premises to Charles B. Isaac. He also alleged the facts concerning the mortgaging of the property by Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac to the Jarvis-Conklin Mortgage Trust Company, and it was alleged as a defense that both proceedings, namely, the proceedings to sell the property and the action of the parties in mortgaging the property, were each and every one of them void as against the said Lewis McArthur La Dow, and ineffectual to divest him of any interest or right or title he may have had in the property, or of which he became the owner as the heir of George A. La Dow. The defendant Letitia Lombard filed her answer in said cause, in which she set up and alleged that she was the owner in fee simple of the parcel of land 27 feet and 5 inches by 100 feet, heretofore described. Thereafter the cause was tried in the state circuit court, and a final decree entered, in which it was adjudged and decreed that the proceedings taken by Mattie A. La Dow in the county court of Umatilla county, the order of sale of the premises, the sale thereof to Charles B. Isaac, and the mortgage of the premises made by Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac to the Jarvis-Conklin Mortgage Trust Company, and each and every one of them, were absolutely void as against Lewis McArthur La Dow, and ineffectual to divest any part of parcel of his right, title, and interest of, in, or to the said premises. The court further decreed that Lewis McArthur La Dow was the owner in fee simple, free from all liens and incumbrances, of the undivided one-half interest of all of the said property, subject to the dower right of Mattie A. La Dow, and the court decreed a foreclosure of the mortgage against all the other defendants, and all their right, title, and interest in or to said property, and every part and parcel thereof, and against each and every one of them, and decreed that the same should be sold to satisfy the sum of $16,300 due upon the mortgage, together with interest and attorney's fees. On appeal to the Supreme Court of Oregon the decree of the lower court was in all things affirmed, the court holding that the guardian had no power under the statute of the state to mortgage the land of the ward, and that the proceedings relating to the sale of the ward's interest in the land were fictitious, fraudulent, and void. Conklin v. La Dow, 33 Or. 354, 54 P. 218. In pursuance of this decree, affirmed by the Supreme Court, execution was issued by the state circuit court, and sale made of the property to S. L. Conklin, except the undivided half interest therein of Lewis McArthur La Dow. Conklin assigned his certificate of sale to the North American Trust...