Mertens v. Northern State Bank

• Decision Date: 21 October 1913
• Parties: MERTENS v. NORTHERN STATE BANK.
• Court: Oregon Supreme Court

135 P. 885

68 Or. 273

MERTENS v. NORTHERN STATE BANK.

Supreme Court of Oregon

October 21, 1913

Department 1.

Appeal from Circuit Court, Josephine County; F.M. Calkins, Judge.

Suit to quiet title of Carrie P. Oistad Mertens against the Northern State Bank. From a decree for plaintiff, defendant appeals. Affirmed.

W.C Hale, of Grants Pass, for appellant.

H.D Norton, of Grants Pass, for respondent.

RAMSEY J.

This is a suit in equity to determine an adverse claim to the following described real property: The N. 1/2 of the S.E 1/4, the S.W. 1/4 of the S.E. 1/4, and the S.E. 1/4 of the S.W. 1/4 of section 30, and the S.W. 1/4 of section 34, all being in township 39 south, range 6 west of the Willamette meridian in Josephine county, state of Oregon. The complaint is in the usual form.

The answer denies that the plaintiff is the owner of any part of the S.W. 1/4 of section 34 in township 39 South, range 6 west of the Willamette meridian, and admits that the defendant claims to own said premises and asserts that its claims thereto are not without foundation.

The defendant by its answer expressly disclaims any title or claim or interest in or to the N. 1/2 of the S.E. 1/4, the S.W. 1/4 of the S.E. 1/4, and the S.E. 1/4 of the S.W. 1/4 of said section 30 in township 39 south, range 6 west of the Willamette meridian, and alleges that it never at any time or in any manner asserted any claim or title to any part thereof.

Hence the question for decision is whether the plaintiff or the defendant owns in fee the S.W. 1/4 of section 34, township 39 south, range 6 west of the Willamette meridian in Josephine county, state of Oregon. Both claim title thereto, and both claim title to said quarter section of land through Iver Arntsen and Dorthea Arntsen.

The evidence shows that on April 26, 1905, Iver Arntsen and his wife, Dorthea Arntsen, by proper deed of conveyance, for the consideration of $1,600, paid them by the plaintiff, sold and conveyed to the plaintiff and her heirs the following described real property: The N. 1/2 of the S.E. 1/4, the S.W. 1/4 of the S.E. 1/4, and the S.E. 1/4 of the S.W. 1/4 of section 30, and also the S.W. 1/4 of section 34, all in township 39 south, range 6 west of the Willamette meridian in Josephine county, state of Oregon. This deed was not recorded until October 20, 1905.

On the 21st day of February, 1910, said Arntsen and his wife made another deed purporting to convey said premises to the plaintiff. This was a warranty deed.

The deed of conveyance first above referred to vested in the plaintiff the title in fee simple to the real property therein described, unless the execution sale, hereinafter referred to, conveyed some or all of said real premises to the defendant.

On July 24, 1905, the defendant herein, as plaintiff, began an action at law against Iver Arntsen and Dorthea Arntsen in the circuit court of Josephine county, state of Oregon, to recover upon a judgment obtained in the state of Wisconsin the sum of $805 and costs thereon amounting in all to $831.45. The defendants in that action were residents and inhabitants of the state of Wisconsin, and they could not be served with process in this state, excepting by publication. The plaintiff in that action obtained an order for the service of the summons by publication and afterwards had the summons personally served on the defendant in the state of Wisconsin. The plaintiff in said action on July 25, 1905, caused a writ of attachment to be issued therein out of the circuit court of Josephine county, and the sheriff by virtue of said writ, on said 25th day of July, 1905, attached, as the property of the defendants in said action the following described real property: The S.W. 1/4 of section 34 in township 39 south, range 6 west, and the N. 1/2 of the S.E. 1/4, and the S.W. 1/4 of the S.E. 1/4, and the S.E. 1/4 of the S.W. 1/4 of section 30, all in township 39 south, range 6 west of the Willamette meridian. The sheriff made and filed a proper certificate showing said attachment, and this certificate was recorded in the proper record on July 25, 1905. He also made due return of his doings upon said writ.

On September 30, 1905, the circuit court of Josephine county entered the defaults of the defendants in said action and gave and entered against them, and in favor of the plaintiff in said action, the Northern State Bank, a judgment, for want of an answer, for said sum of $831.45 and costs; but said judgment makes no mention of said attachment of said real property, and said court did not at that time or at any time make or enter any order for the sale of said attached property. Said judgment is, in all respects, a judgment in personam against said Iver Arntsen and Dorthea Arntsen for said money. The evidence shows that the entry for said judgment was prepared by the attorney for the plaintiff therein, and that it was entered as he wrote it, and that he overlooked the necessity for an order for the sale of the attached property. The court's docket fails to show that any such order was made by the court.

On November 8, 1905, the clerk of the circuit court of Josephine county issued a writ of execution upon said judgment and in accordance with its terms, and this writ commanded the sheriff of said county that out of the personal property of said defendants, or, if sufficient could not be found, then out of the real property belonging to said defendants in his county on or after the 29th day of September, 1908, to satisfy said sum of $831.45 then due on said judgment, with costs, etc. By virtue of said writ of execution, the sheriff, as shown by his return upon said writ, levied upon the S.W. 1/4 of section 34, in township 39 south, range 6 west of the Willamette meridian in Josephine county, state of Oregon, and he returns that, after giving notice thereof, he sold to the plaintiff in said writ (said bank) the property above described for $831.36, and he returned said writ fully satisfied. His return does not show that he levied upon or sold any property other than said S.W. 1/4 of section 34 in township 39 south, range 6 west, but his notice of sale included all the property described in the complaint in this suit.

On January 19, 1906, the circuit court of Josephine county confirmed the sale of said S.W. 1/4 of section 34 in township 39 south, range 6 west of the Willamette meridian, made as aforesaid, but no other real property was mentioned in said order of confirmation.

On January 22, 1907, the sheriff of Josephine county made a deed to the plaintiff in said action and defendant in this suit purporting to convey to it by virtue of the execution sale, made as aforesaid, said S.W. 1/4 of said section 34 in township 39 south, range 6 west of the Willamette meridian in said county and state. After said judgment and confirmation of sale were entered, the circuit court of Josephine county made an order setting all of said proceedings aside on the ground that said judgment and all subsequent proceedings therein were void because, as that court held, it had no jurisdiction to render said judgment.

When a person obtains a deed conveying to him real property, he is required to have it recorded. When the deed was made to the plaintiff as stated, supra, the grantee was required to have it recorded within five days from the date of its execution or it would be void as against any subsequent purchaser in good faith for a valuable consideration whose conveyance should be first duly recorded. Section 7129, L. O.L.

From the date of an attachment until it is discharged or the writ executed, the plaintiff, as against third persons, is deemed a purchaser in good faith and for a valuable consideration of the real property attached, if the certificate of attachment is made and filed as required by law. Sections 301, 302, L. O.L. Such attachment will prevail over a deed, which has not been recorded as required by law, if the attaching creditor or the purchaser had no notice of the unrecorded deed. Boehreinger v. Creighton, 10 Or. 42; Riddle v. Miller, 19 Or. 468, 23 P. 807; Trust Co. v. Loewenberg, 38 Or. 170, 62 P. 647. The deed made by Iver Arntsen and wife to the plaintiff was made on April 26, 1905, but it was not recorded until October 20, 1905.

On July 25, 1905, the property in dispute was attached, and the evidence shows that the plaintiff in the attachment action had no notice of said unrecorded deed until after said property was attached. If the proceedings in the attachment action had been regular, the purchaser at the execution sale would have had a better title than the plaintiff in this suit, who failed to have her deed of conveyance recorded until after said property had been attached.

In the action at law referred to, supra, the defendants were nonresidents of Oregon. They resided in Wisconsin. The record in that case showed that fact. The process was served on them in Wisconsin. They never appeared in that action in any manner until they filed a motion to set aside the judgment and the order confirming the sale.

The acquisition of jurisdiction over nonresidents of the state by publication of summons or by personal service outside the state is a mode of procedure not according to the course of the common law, and the method of acquiring such jurisdiction, prescribed by statute, must be strictly followed or no jurisdiction will be obtained. Odell v Campbell, 9 Or. 298; Northcut v. Lemery, 8 Or. 316; 2 Freeman on Jud. (4th Ed.) § 567; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Willamette R.E. Co. v. Hendrix, 28 Or. 485, 42 P. 514, 52...