Mascall v. Murray

CourtSupreme Court of Oregon
Writing for the Court[76 Or. 643] HARRIS, J. (after stating the facts as above). BENSON, J.
Citation149 P. 517,76 Or. 637
Decision Date08 June 1915

149 P. 517

76 Or. 637


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.

[76 Or. 643] HARRIS, J. (after stating the facts as above).

It will be observed that the plaintiffs [149 P. 519] 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...

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16 cases
  • United States Smelting Refining & Mining Co. v. Lowe, 5493
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • 18 Diciembre 1947
    ...Co. v. Pacific Coal Co., 4 Alaska 463; O'Hara v. Parker, 27 Or. 156, 39 P. 1004; State v. Blize, 37 Or. 404, 61 P. 735; Mascall v. Murray, 76 Or. 637, 149 P. 517; Square Deal Mining Co. v. Colomon Mining Co., 61 Colo. 93, 156 P. 147; Sanders v. Village of Riverside, 7 Cir., 118 F. III. a. A......
  • Faulconer v. Williams
    • United States
    • Supreme Court of Oregon
    • 24 Julio 1998
    ...means that the claimant possessed the property intending to be its owner and not in subordination to the true owner. Mascall v. Murray, 76 Or. 637, 643-44, 149 P. 517 (1915); see also Sertic v. Roberts, 171 Or. 121, 134, 136 P.2d 248 (1943) ("Adverse possession depends upon the intent of th......
  • Hill v. Oland, 78-0088
    • United States
    • Court of Appeals of Oregon
    • 22 Diciembre 1982
    ...not necessary, and thus plaintiffs were not afforded the opportunity to assert estoppel in a reply. See generally, Mascall v. Murray, 76 Or. 637, 647, 149 P. 517 (1915); West Side Lumber & Shingle Co. v. Herald, 64 Or. 210, 213, 128 P. 1006 (1913); Morback v. Young, 58 Or. 135, 113 P. 22 (1......
  • Rohner v. Neville
    • United States
    • Supreme Court of Oregon
    • 25 Octubre 1961
    ...has affirmed the right of a plaintiff under an equitable estoppel against a defendant who admittedly held good legal title. Mascall v. Murray, 76 Or. 637, 149 P. 517. See also Gilkey v. Murray, 76 Or. 653, 149 P. 521. It is apparent, then, that in a suit to quiet title under ORS 105.605 a p......
  • Request a trial to view additional results

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