National Surety Corp. v. Smith

Citation168 Or. 265,114 P.2d 118
PartiesNATIONAL SURETY CORPORATION <I>v.</I> SMITH ET AL.
Decision Date05 November 1941
CourtSupreme Court of Oregon
                  See 26 R.C.L. 442
                  61 C.J., Taxation, § 2018
                

Before KELLY, Chief Justice, and RAND, BAILEY, BELT and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Marion County.

L.G. LEWELLING, Judge.

Action in ejectment by the National Surety Corporation against Guy H. Smith and Goldie Smith, his wife, and others. From a judgment for defendants dismissing the action, plaintiff appeals.

REVERSED. REHEARING GRANTED AND JUDGMENT OF CIRCUIT COURT AFFIRMED.

[168 Or. 266]

Robin D. Day, of Salem, for appellant.

Roy Harland, of Salem (W.C. Winslow, of Salem, on the brief), for Smith.

Walter H. Bell, of Stayton, and Carson & Carson, of Salem, for Ogle.

ROSSMAN, J.

This is an appeal from a judgment of the circuit court in favor of the defendants and entered in an ejectment action. In making that statement we realize that the complaint is couched in language suitable for a suit in equity, that the prayer seeks equitable relief, and that the disposition of the cause is stated in a paper entitled "decree." Possibly the plaintiff, when the complaint was prepared, deemed that its cause was within the purview of § 9-1001, O.C.L.A. But, since the property described in the complaint was in the defendants' possession when the action was begun, § 9-1001 did not authorize the institution of this proceeding. We are satisfied that this is an action of ejectment and nothing else.

The defendants are seven in number, five having the name of Smith and three the name of Ogle. The Smiths and the Ogles filed separate answers. Both answers deny the paragraph of the complaint which alleges the plaintiff's ownership of the property. The answer of the Smiths, besides making that denial, alleges that defendants Guy H. and Roy E. Smith purchased the property December 28, 1935, from the sheriff of Marion county and that they received a deed of conveyance December 31, 1935. They further allege that immediately after making the purchase the two Smiths assumed actual, adverse and exclusive possession of the property and that the possession was maintained to and including the time when the answer was filed. Those averments are followed by a further defense based upon the Short Term Statute of Limitations which protects tax sales. The answers seek no affirmative relief. The reply denies the new matter alleged in the answer. That denial is followed with averments which describe (1) some probate proceedings through which the plaintiff claims it acquired title to the property; (2) a foreclosure suit for delinquent taxes instituted by Marion county in 1934 and a subsequent sale of the foreclosed properties, including the tract with which we are concerned; and (3) irregularities in the foreclosure suit and subsequent sale which the plaintiff claims rendered the latter void.

As already indicated, the circuit court's disposition of this action is stated in a writing entitled "decree." We are satisfied that the paper was a judgment and shall so deem it notwithstanding its misnomer. It dismissed the action.

Apparently due to a belief that the writing just mentioned was a decree, its author omitted the preparation of any findings whatever, either general or special. None of any kind was entered. The total absence of findings constitutes error: State ex rel. v. Bassett, 166 Or. 628, 113 P. (2d) 432 (decided May 13, 1941).

The evidence received during the trial tended to disclose the following concerning the plaintiff's claim of title.

April 25, 1939, the sheriff of Marion county executed and delivered to the plaintiff a deed of conveyance to this property which had its origin in the following circumstances. In 1926 the then owners of this property signed a promissory note and, in order to secure its payment, executed and delivered to the payee a mortgage which described the property. Later, the mortgagee died intestate and two individuals by the name of McArthur were appointed administrators of his estate. After their appointment they instituted a suit to foreclose the mortgage, and in due time a decree of foreclosure was entered. Still later the sheriff sold the property and after confirmation of the sale issued to the McArthurs a sheriff's certificate of sale. About that time it was discovered that the McArthurs had been neglectful of their official duties and that through their neglect the estate had suffered a loss of $3,900. At that point the McArthurs were discharged and the Ladd & Bush Trust Company was appointed administrator de bonis non. Upon those developments the plaintiff, as surety upon the McArthurs' administrators' bond, paid the trust company, as administrator, $3,900. Upon a motion made by the new administrator the court entered an order which awarded to the plaintiff by subrogation the rights which the estate possessed against the McArthurs. At the same time the latter assigned to their successor the aforementioned sheriff's certificate of sale and then the trust company, as administrator, assigned the certificate to the plaintiff by means of a writing which said that the assignment was made "pursuant to an order of the County Court." The following day the sheriff executed and delivered to the plaintiff his aforementioned deed. It recited at length the circumstances out of which it issued, including a statement that the assignment of the sheriff's certificate of sale to the plaintiff by the administrator was made "pursuant to an order of the Court."

Some months before the complaint was filed eighteen individuals signed, executed and delivered to the plaintiff a quitclaim deed which described this property. The relationship of the eighteen grantors to the title is indicated only by the facts which we shall now mention. Many of them have the same name as individuals described as next of kin and heirs at law of the deceased in the order which appointed the administrators. All of the persons mentioned in that order signed the deed. Likewise two of the grantors have the same name as two persons mentioned in another order as heirs of the deceased. Those two are also mentioned in the order appointing the administrator. The defendants' brief, in referring to the quitclaim deed, says: "All the heirs did not sign the deed." That statement inferentially indicates that those who signed were heirs. The above circumstances, in our opinion, justify a belief that those who signed the quitclaim deed were heirs of the deceased. The sufficiency of the quitclaim deed as an instrument of conveyance is not questioned by the defendants. Their only objection to the deed is the one just quoted, "All the heirs did not sign the deed." The face or premises of the deed contains the names of the three grantors and their spouses, who however, did not sign the instrument. The reason for the missing signatures is not disclosed by the evidence.

Due to the fact that there is in the record brought before us no order authorizing the administrator to assign the sheriff's certificate of sale to the plaintiff, we shall ignore the assignment and the sheriff's deed. Our purpose in having mentioned the plaintiff's payment of the loss sustained by the estate through the McArthurs' neglect of duty and the subsequent order made by the court, was to indicate that there were circumstances which could properly induce the heirs to sign the quitclaim deed. If the latter did not convey to the plaintiff the title of all the heirs, it at least made the plaintiff a tenant in common with those who did not sign: § 70-205, O.C.L.A. A tenant in common may maintain an action of ejectment for recovery of possession of the property against strangers to the title: LeVee v. LeVee, 93 Or. 370, 181 P. 351, 183 P. 773; 14 Am. Jur., Cotenancy, p. 160, § 95; 62 C.J. Tenancy in Common, p. 563, § 248. Therefore, the plaintiff had sufficient title to warrant its institution of this action.

We shall now state the facts developed by the evidence concerning the defendants' alleged title. December 28, 1935, defendants Guy H. and Roy E. Smith purchased this property from the sheriff of Marion county. The deed to them is dated December 31, 1935. It is valid on its face and mentions in one of its Whereas clauses a public sale of real estate held December 28, 1935, pursuant to a tax decree made and entered November 20, 1935. The property is a 30-acre tract enclosed by a fence, and at the time of its purchase the Smiths wired shut the gates which gave access to the property and in other ways assumed possession of it. A few days later they rented the tract to Samuel J. Ogle, who is one of the defendants. June 4, 1936, the two Smiths and the three Ogles signed an agreement whereby the Ogles...

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12 cases
  • Bristor v. Cheatham, 5334
    • United States
    • Supreme Court of Arizona
    • January 12, 1952
    ......         Oregon followed the same rule in National Surety Corporation v. Smith, 168 Or. 265, 114 P.2d 118, 123 P.2d 203, at ......
  • National Surety Corp. v. Smith
    • United States
    • Supreme Court of Oregon
    • March 10, 1942
    ...10, 1942 Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge. On rehearing. Judgment affirmed. For former opinion, see 114 P.2d 118. Robin D. Day, of Salem, for Roy Harland, of Salem (W. C. Winslow, of Salem, on the brief) for respondents Smith. Walter H. Bell, of Stayton, and ......
  • Evergreen Timber Co. v. Clackamas County
    • United States
    • Supreme Court of Oregon
    • October 23, 1963
    ...County v. Bristow, 179 Or. 653, 173 P.2d 954 (1946); Frederick v. Douglas County, 176 Or. 54, 155 P.2d 925 (1945); National Surety Corp. v. Smith, 168 Or. 265, 114 P.2d 118, 123 P.2d 203 (1942).5 Murphy v. Clackamas County and Jones Lumber Co., 200 Or. 423, 264 P.2d 1040, 266 P.2d 1065 (195......
  • McCormick v. City of Portland
    • United States
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    • January 14, 2004
    ...667. Each tenant in common has an individual right to bring an action concerning the commonly held property. National Surety Corp. v. Smith, 168 Or. 265, 269-70, 114 P.2d 118 (1941).5 It follows from the foregoing analysis that the trial court should have awarded each plaintiff $31,086.72. ......
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