Mumper v. Matthes
| Citation | 206 P.2d 86,186 Or. 357 |
| Parties | MUMPER <I>v.</I> MATTHES |
| Decision Date | 10 May 1949 |
| Court | Supreme Court of Oregon |
8. An action to foreclose a mortgage on land which had been sold by administratrix in course of administration was a collateral attack upon the sale and if the court had jurisdiction the order of confirmation was conclusive as to the regularity of the sale, but no further. O.C.L.A. § 19-824.
Executors and administrators — Description of land — Unintelligible — Sale void on collateral attack
9. Where third call in description of land contained in administratrix' petition for leave to sell attempted to describe a straight line which was parallel to two lines which were at right angles to each other and description of easterly boundary which was unintelligible and the fourth boundary, if there was one, was entirely omitted, and same description was used in subsequent papers and there was no statement as to condition or probable value of land or amount or nature of any lien thereon or names, ages or residences of any devisees or heirs and more than five years had elapsed since appointment of administratrix and no report of any kind had been made as to the use of the land, the court never acquired jurisdiction and the sale was void on collateral attack. O.C.L.A. §§ 19-801, 19-805 to 19-810, 19-815, 19-824.
Executors and administrators — Mortgage foreclosure — Void sale — Purchasers — Challenge validity of proceedings
10. In action to foreclose mortgage where administratrix' sale to third persons was void the purchasers at such sale had no standing to challenge the validity of the proceedings for the foreclosure of the mortgage.
Appeal and error — Mortgage foreclosure — Note and mortgage valid
11. Where trial court found on sufficient evidence that note and mortgage were valid and that payment relied upon to toll the statute of limitations had been made as claimed, and there were no assignments of error by appellant, decree of foreclosure would be affirmed.
Judgment — Action dismissed — Individual capacity — Capacity as administratrix
12. Where action was dismissed as to the defendant in her individual capacity judgment against such defendant in her capacity as administratrix, would not bind her individually.
See note 142 A.L.R., 354
21 Am. Jur., 738
34 C.J.S., Executors and Administrators, § 618
Appeal from Circuit Court, Marion County.
Paul R. Hendricks and John H. Carson, of Salem, argued the cause and filed a brief for respondent.
Roy R. Hewitt, of Salem, argued the cause and filed a brief for appellant Pearl S. Matthes.
Harry G. Hoy, of Portland, argued the cause for appellants Mumford. With him on the brief were Hoy and Prag, of Portland.
Before LUSK, Chief Justice, and BRAND, BELT and BAILEY, Justices.
Suit to foreclose a mortgage. From a decree for the plaintiff the defendants appeal.
AFFIRMED.
Plaintiff filed an original complaint against which a demurrer was filed and sustained. By her amended complaint the plaintiff alleges that on the 31st day of October, 1931, L.C. Matthes executed and delivered to the plaintiff Marie Mumper and to her husband, W.A. Mumper, a promissory note, a copy of which is set forth in the complaint. The note is dated at Salem, Oregon, October 31, 1931, for the principal sum of $2000 and is made payable two years after date. The payees are W.A. Mumper and Marie Mumper. It bears interest at six per cent payable annually, with provision for acceleration of maturity in event of default. It contains the usual provisions for attorney's fees and is signed by L.C. Matthes.
Plaintiff further alleges that L.C. Matthes was the owner of an undivided one-eighth interest in certain real property described in said complaint and that on 31 October 1931 L.C. Matthes, acknowledging himself to be a single man, executed a mortgage to secure said note, which mortgage was duly recorded on the same day. The defendant Pearl S. Matthes, as administratrix of the estate of L.C. Matthes, deceased, admits the foregoing allegations. The amended complaint further alleges that plaintiff is the owner and holder of the note and mortgage, that no part of the interest or principal has been paid except $50 paid on interest on 15 September 1940. Then follow the usual allegations concerning the amount due, demand for payment and prayer for judgment against the estate of L.C. Matthes, and foreclosure of the mortgage. It is also alleged that the defendants Mumford claim some interest in the real property which is inferior in right to the plaintiff's lien. The answer of the defendant Matthes as administratrix denies that the note is unpaid or that any sum is due thereon, or that any demand had been made, but "admits" that defendants Mumford have title in fee to the land. As a separate answer to the amended complaint, defendant Matthes as administratrix alleges that she is the widow and sole heir of L.C. Matthes, deceased, and that she:
The defendants Mumford filed a motion to strike the amended complaint upon two alleged grounds; first, that the court had sustained a demurrer to the original complaint and had made no order permitting the filing of the amended complaint, and second, that by reason of the allegations contained in the original complaint, the plaintiff should be estopped from alleging the matters contained in the amended complaint. The court denied the motion to strike and thereafter the defendants Mumford filed an amended answer to the amended complaint wherein they deny that plaintiff is the owner of the note or mortgage, deny the execution of the promissory note, admit that L.C. Matthes on the 31st day of October, 1931, was the owner in fee of an undivided one-eighth interest in the property described, deny the execution of the mortgage, but admit the recordation of a purported mortgage. They deny that the note is unpaid or that any amount is due or owing, or that any default was made or payment demanded, and deny that plaintiff is entitled to any attorney's fee.
As a first affirmative defense, the defendants allege that on or about the 24th day of October, 1941, a dispute arose between the plaintiff and Pearl S. Matthes, as the widow and sole heir-at-law of L.C. Matthes, as to the validity of said note and mortgage and that at said time the parties entered into an accord and satisfaction, by the terms of which Pearl S. Matthes, as widow and sole heir-at-law of L.C. Matthes, was to quit-claim to the plaintiff Mumper all of her right, title and interest in the real property in consideration of the sum of $500 to be paid by the plaintiff Mumper to Pearl S. Matthes, as widow and sole heir-at-law of her husband. It is further alleged that by the terms of the accord, the plaintiff should satisfy the mortgage and cancel the note. It is then alleged that Pearl S. Matthes, as widow and sole heir-at-law of her husband, executed and delivered to the plaintiff a quit-claim deed to the described property, which deed was accepted by the plaintiff in full satisfaction of the disputed claim concerning the note and mortgage, and that the plaintiff caused the said quit-claim deed to be recorded.
By way of a second affirmative defense, the defendants Mumford allege that on the 11th day of July, 1946, the plaintiff filed a verified complaint which defendants attempt to incorporate in their answer by reference. Defendants allege that in said original complaint plaintiff alleged:
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...of the sale by the correct description * * *.'' 193 P.2d 138. See also Annotations, 111 A.L.R. 1200. Our decision in Mumper v. Matthes, 186 Or. 357, 206 P.2d 86, bears on the question. The case involves an administrator's sale in which the description of the land to be sold omitted the four......
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...Seed Co., 217 Or. 409, 414, 342 P.2d 757 (1959); see also Mignot v. Parkhill, 237 Or. 450, 453, 391 P.2d 755 (1964); iMumper v. Matthes, 186 Or. 357, 364, 206 P.2d 86 (1949); Condon Nat. Bank v. Rogers, 60 Or. 189, 191, 118 P. 846 (1911). However, an original complaint is not superseded by ......
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