Louth v. Woodard

• Decision Date: 26 May 1925
• Citation: 114 Or. 603,236 P. 480
• Parties: LOUTH ET AL. v. WOODARD.
• Court: Oregon Supreme Court

236 P. 480

114 Or. 603

LOUTH ET AL. v. WOODARD.

Supreme Court of Oregon

May 26, 1925

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Suit by David Louth and another against Alton M. Woodard. Decree for plaintiffs, and defendant appeals. Affirmed.

This is a suit to quiet title. The complaint is in the usual form and alleges, in effect, that the plaintiffs are the owners and in possession of certain real property in Kenton, an addition to the city of Portland, Or., and also certain lots in Railway addition to Montavilla, near Portland; that plaintiffs have full and complete title and property therein, although the record title is in the Security Savings & Trust Company, in trust for the plaintiffs. The usual allegation is made concerning the claim of the defendant.

The defendant, in his answer, sets up two defenses:

First that the claim of the plaintiffs is a cloud upon the title of defendant and consists of a decree in the circuit court of the state of Oregon for Multnomah county, which decree is void for the reason that defendant was never served with summons and complaint, and George J. Cameron, the attorney who appeared for him in the suit, was not employed by him and had no right to appear for him. The second further and separate answer is that of adverse possession for ten years. This defense is not relied upon in this appeal. To this answer the plaintiffs filed a reply, setting forth in substance, first, that the Kenton properties referred to were purchased by Morrell Woodard, father of defendant, Alton M Woodard, wholly with the moneys and property of the plaintiff David Louth, and that said Morrell Woodard wrongfully took title to said properties in the name of said Morrell Woodard and his son, Alton M. Woodard, defendant. And the whole claim of said Alton M. Woodard to any title or estate in said properties is based solely upon said wrongful act of said Morrell Woodard in taking title to said properties in the name of Morrell Woodard and the defendant.

Second the plaintiffs further pleaded that David Louth began a suit in the circuit court of the state of Oregon for Multnomah county, February 14, 1917, against Morrell Woodard, Lou Woodard, his wife, and said Alton M. Woodard, as well as certain other defendants. This suit was for the purpose of obtaining the property held in trust by Morrell Woodard pursuant to a declaration of trust and to which he had wrongfully taken title in his own name and in that of his son, Alton M. Woodard. The issues in that suit are set forth at length and show the appearance of George J. Cameron, a well-known attorney of this court, of good standing and repute, who appeared in that suit for said defendants including Alton M. Woodard, this defendant. The decree of the court in the former suit was also set out in full. The plaintiffs further pleaded matters of estoppel against defendant Alton M. Woodard. A portion of the trust property belonging to David Louth was recovered and, there being a balance due on the judgment, execution was issued and property was sold thereon, part of which is involved in this suit. Plaintiff David Louth bid in a part of the property and afterward acquired and now owns seven-eighths thereof. Loring K. Adams, the other plaintiff, owns the remaining one-eighth. This suit to quiet title was commenced in June, 1921, about four years after the decree rendered by Judge Stapleton in the former suit in December, 1917.

After the trial in the present suit, the court made findings of fact and rendered a decree to the effect that the claim of the defendant, Alton M. Woodard, was ill founded; that Alton M. Woodard had notice and knowledge of the first suit brought against his father and himself; that he had authorized the employment of George J. Cameron as his attorney, and that he was concluded by the decree rendered in the former suit.

Since the decree in the former suit, and some time before the trial of the present suit, George J. Cameron, who for a long time had been a prominent attorney and citizen of this state, has died. Defendant appeals.

Henry S. Westbrook, of Portland, for appellant.

Loring K. Adams, of Portland, for respondents.

BEAN, J. (after stating the facts as above).

This case depends upon the validity of a former decree of the circuit court of the state of Oregon for Multnomah county. It appears from the testimony that after the commencement of the former suit in which Loring K. Adams and Roger B. Sinnott were attorneys for David Louth, plaintiff therein, and some two or three months before the trial thereof, the defendant, Alton M. Woodard, about August, 1917, went to the office of the attorneys for David Louth and inquired in regard to the suit, and also made inquiry in regard to the standing of George J. Cameron, who had before that time been employed by Morrell Woodard, the father of this defendant, to appear in the case. He also indicated that he would be present at the trial.

Summons and complaint had been served upon Morrell Woodard, the father, but they were unable at the time to find the defendant Alton M. Woodard, in order to get service, and, as George J. Cameron appeared in the suit for Alton M. Woodard, no further attempt was made to obtain service of the summons and complaint.

It appears that, after being informed of the pendency of the former suit, Alton M. Woodard went to California and did not return at the trial of the former suit. He allowed the matter to slumber for nearly four years when he filed for record some declaration of interest, which clouded the title and caused the present suit.

Alton M. Woodard now claims that he had expended...