Mascall v. Murray

• Citation: 149 P. 517,76 Or. 637
• Parties: MASCALL ET AL. v. MURRAY ET AL.
• Decision Date: 08 June 1915
• Court: Supreme Court of Oregon

149 P. 517

76 Or. 637

MASCALL ET AL. v. MURRAY ET AL.

Supreme Court of Oregon

June 8, 1915

On Petition for Rehearing, July 6, 1915.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by W. R. Mascall and another against Alexander Murray, Jennie Murray, Adam Murray, William Murray, and another. Judgment for plaintiffs, and the named defendants appeal. Affirmed.

This is a suit to quiet title to land which is referred to in the record as the Cupp ranch and is described as follows:

The southeast quarter of the northwest quarter, the east half of the southwest quarter and the southwest quarter of the southwest quarter, section 3, the east half of the northeast quarter of section 9, and the southeast quarter of the southeast quarter of section 4, in township 20 south of range 37 east of Willamette meridian in Malheur county.

The land was owned by Alexander Murray, Adam Murray, and William Murray as partners doing business under the firm name of Murray Bros. On April 29, 1891, the partners made an assignment for the benefit of their creditors, and on that day conveyed the above-described land, as well as other property, to Malcolm Moody as assignee, who qualified and duly accepted the trust. Thereafter, on June 13, 1891 pursuant to section 7542, L. O. L., the creditors elected Kenneth McRae as assignee in lieu of Malcolm Moody, who had been named by the debtors. The administration of the estate was not completed until 1899, when the final report of McRae was approved. Neither Moody nor McRae, while acting as assignee, attempted to sell or dispose of the land in dispute; both Moody and McRae acted on the assumption that the land involved herein had been sold at a sale on execution.

W. R Mascall and Annie W. Jackson, on March 20, 1891, commenced an action at law in the circuit court for Grant county against Adam Murray, Alexander Murray, and William Murray, as partners, for $2,250, due on a promissory note, together with interest at the rate of 10 per cent. per annum from October 1, 1889, $250 attorney's fees and costs and disbursements. Summons and complaint were served upon Alexander Murray on March 24, 1891, in Grant county and on Adam Murray and William Murray on April 22, 1891. A writ of attachment was issued on March 20, 1891, and returned April 20, 1891, showing that the sheriff had levied on the land involved in the suit on April 6, 1891. The attorneys for the plaintiffs in the law action on April 20, 1891, filed a motion for a default judgment, and order of sale of attached property; and on the next day the clerk of the court, acting without an order from the judge and believing that section 185, L. O. L., afforded sufficient authority, entered a judgment against the partners for $2,600, the amount of principal and interest due on the note, $250 as attorney's fees, costs, and disbursements, and further ordered a sale of the attached property. The plaintiffs herein claim that an execution was issued on the judgment in the law action, and that thereafter they purchased the land at a sale on execution. There is no record evidence of sale or confirmation of sale, and there is no record in the clerk's office showing that an execution was, at any time, returned, although after the title of the case a notation appears on the execution docket thus:

"1891 July 22; judgment for plaintiff, $2,600.00; attorney's fees $225.00; costs and disbursements, $88.89; this writ and return $5.00, 1891, July 22; execution issued at instance of Parrish & Cozad."

The complaint filed in this suit alleges:

"That the plaintiffs are now and have been ever since 1891, the owners in fee and in the actual, open, notorious exclusive, hostile and peaceable and adverse possession of"

--the described land; and in a separate paragraph it is averred:

"That the said plaintiffs are the owners in fee to the said premises, and that the said defendants claim an estate or interest therein adverse to the said plaintiff."

The Murrays filed an answer which, after certain denials and an admission that defendants claim an interest in the property alleges affirmatively that the partners made an assignment for the benefit of their creditors and conveyed their property to Malcolm Moody as assignee; that Kenneth McRae was elected assignee by the creditors, and thereafter Moody was discharged by the court; that in 1899 McRae was discharged and the estate closed; that Moody did not, at any time, transfer the land to McRae, and the court did not make any order directing Moody to transfer the land to McRae; that neither Moody nor McRae sold or disposed of the real estate, and that since the estate is now closed, whatever remains undisposed of must be treated as a surplus; and that since the land is a part of the surplus and Moody as assignee holds the record title he occupies the position of a trustee who is bound to reconvey to the Murrays. The answer concluded with a prayer that Moody be decreed to be the holder of the title to the premises in trust for the Murrays; that Moody be required to convey to the Murrays; that title in fee be decreed to rest solely in Alexander Murray, Adam Murray, and William Murray; that title be quieted in the Murrays as against Malcolm Moody, the plaintiffs and all other persons whomsoever; that plaintiffs be decreed to have no title or interest in the property and for such other and further relief as to the court shall seem just and equitable. The reply of plaintiff, after certain denials and admissions, alleges the commencement of the law action, the attachment proceedings, and the rendition of the judgment, already mentioned; it is further averred that on or about June 22, 1891, an execution was issued on the judgment, and on August 1, 1891, the sheriff sold the land to plaintiffs and gave them a sheriff's certificate of sale; that immediately after such sale the plaintiffs entered into the actual possession of the premises, and have held the same continuously. Moody was made a party defendant and he filed an answer which is substantially the same as the reply of plaintiffs. The decree of the circuit court was for the plaintiffs, and the Murrays appealed.

W. H. Brooke and R. W. Swagler, both of Ontario, for appellants. J. E. Marks, of Canyon City (Errett Hicks, of Canyon City, on the brief), for respondents.

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

It will be observed that the plaintiffs in this suit held a promissory note signed by the Murrays, and that this note was reduced to the form of a judgment eight days before the partners made an assignment for the benefit of their creditors. The plaintiffs claim that an execution was issued on the judgment, and that thereafter they purchased the land at a sheriff's sale, received a certificate of sale, and took immediate possession. They take the position that their uninterrupted adverse possession has ripened into an absolute title. They also contend that long-continued acquiescence by the Murrays operates as an equitable confirmation of the sale, which will of itself debar the Murrays from asserting any interest in the property, even though the plaintiffs fail to establish adverse possession. The Murrays challenge both contentions of the plaintiffs, and after arguing that plaintiffs received nothing at the alleged sale on execution, the partners insist that Moody holds the title to the land as a trustee for them, and that therefore they are entitled to prevail.

Before proceeding with a discussion of the rights of the parties to the property it will be necessary first to dispose of debated questions arising from the pleadings. The complaint alleges that the possession of plaintiffs had been peaceable and hostile, and the defendants argue that the term "peaceable" conflicts with the word "hostile," and that such conflict in the meaning of the terms necessarily implies that the possession had not been hostile to the owner. The term "hostile" is used in the sense that the plaintiffs have been in possession as owners as distinguished from one who holds in recognition of or in subordination to the true owner. 2 C.J. 122. The word "peaceable," as employed by the plaintiffs, merely means that their possession has been undisturbed and the continuity unbroken. 2 C.J. 168. It is therefore clear that there is no conflict in the significance of the words used in the complaint, and that this extremely technical objection to the pleading is without merit.

The circuit court denied a motion of the defendants to strike out the reply, and this ruling is assigned as error. The argument of the defendants proceeds upon the theory that, having alleged in the complaint that title had been consummated by adverse possession, the plaintiffs could not, in their reply, assert a title derived in any other manner or acquired from any other source. The reply does not, however, depart from the kind or quantity of title asserted in the complaint. The complaint alleges adverse possession, and the reply fortifies and strengthens the claims set forth in the primary pleading by alleging the facts concerning the action at law, the judgment, the sale on execution, and the receipt of a certificate of sale, and concludes by saying that immediately after the sale the plaintiffs entered into actual possession and have so held the land continuously. The reply only details the transactions relied on in support of the entry upon and holding of the land. The complaint and reply must be construed together, and when so considered one pleading does not vary from the other. Pioneer Hardware Co. v. Farrin, 55 Or. 590, 593, 107 P. 456; Holmes v. Wolfard, 47 Or. 93, 98, 81 P. 819; Goodwin v. Tuttle, 70 Or. 424, 430, 141 P. 1120.

The pleadings of both parties, however, have extended the scope of...