Nichols v. Ingram

• Decision Date: 16 March 1915
• Parties: NICHOLS ET UX. v. INGRAM ET AL.
• Court: Oregon Supreme Court

146 P. 988

75 Or. 439

NICHOLS ET UX. v. INGRAM ET AL.

Supreme Court of Oregon

March 16, 1915

On Motion to Retax Costs, March 30, 1915.

Department 2.

Appeal from Circuit Court, Polk County; Webster Holmes, Judge.

Action by John Nichols and Mildred Nichols, his wife, against Elizabeth Ingram and another. From a judgment for defendants plaintiffs appeal. Reversed and rendered.

Elizabeth Ingram, one of the defendants in this suit, on July 27, 1911 commenced an action against Alexander Basye and his wife Louisa Basye, for the recovery of money; and on the same day she caused a writ of attachment to be issued, and thereupon the sheriff attached, in addition to other land, the west 1/2 of lot 8, block 11, Hill's addition to the town of Independence in Polk county, Or., by filing with the clerk a proper certificate of attachment, which was duly recorded in the attachment lien docket. A trial of the action resulted in a directed verdict for the defendants on May 17, 1912, and the judgment entered on such verdict, after granting defendants their costs and disbursements, recites:

"It is further ordered that the attached property in this case be and the same is hereby released, and the attachment discharged. Now at this time plaintiff gives notice of appeal to the Supreme Court from said judgment."

The oral notice of appeal was not followed up with an undertaking within the time prescribed by law; but, on October 1, 1912 Elizabeth Ingram, the plaintiff in the action at law, again initiated an appeal by serving and filing a notice to the effect that she appealed from the whole judgment rendered and on the same day an undertaking on appeal was served and filed, obligating the signers to--

"pay all damages, costs, and disbursements, which may be awarded against her on the appeal, and further, that if said judgment or any part thereof be affirmed on appeal she, the said Elizabeth Ingram, the plaintiff above named, will satisfy it so far as affirmed."

Alexander Basye and Louisa Basye, by a warranty deed dated May 6, 1913, and recorded May 20, 1913, conveyed the west 1/2 of lot 8 to the plaintiffs herein, John Nichols and his wife, Mildred E. Nichols, in exchange for other property, and $100 in money. The appeal resulted, on October 21, 1913, in a reversal of the judgment of the circuit court ( Ingram v. Basye, 67 Or. 257, 135 P. 883); and on November 13, 1913, the mandate was issued. A retrial occurred February 9, 1914, when Elizabeth Ingram obtained a judgment against Alexander Basye and Louisa Basye for the sum of $2,000 and an order directing the sale of attached property. An execution having been issued and the land advertised for sale the plaintiffs on March 28, 1914, commenced this suit in equity to enjoin Elizabeth Ingram and John M. Grant, the sheriff of Polk county, from selling the west 1/2 of lot 8. The plaintiffs appeal from a decree for defendants.

Oscar Hayter, of Dallas, and Jas. E. Burdett, of McMinnville (McCain, Vinton & Burdett, of McMinnville, on the brief), for appellants. John A. Carson, of Salem (Carson & Brown, of Salem, on the brief), for respondents.

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

The delay in perfecting the appeal from the judgment rendered in the action at law was occasioned by numerous objections to the proposed bill of exceptions and the illness of the reporter who took shorthand notes of the trial.

Before accepting the deed from the Basyes, the plaintiffs herein received from their grantors an abstract which purported to exhibit the record title of the property down to May 5, 1913, and included a copy of the certificate of attachment, with the added information that the verdict of the jury was for the defendants in the case of Elizabeth Ingram v. Alexander Basye and Louisa Basye; that the attached property had been released and the attachment discharged; but the abstract made no mention of any appeal, or that an appeal had been perfected and was then pending. One of the attorneys of record for the Basyes in the law action was also a member of the firm that prepared the abstract. John Nichols, one of the plaintiffs herein, testified:

"When I received the abstract I looked it over. It showed the judgment had been dissolved, and I supposed the title was clear, and we made the exchange."

Nichols and wife took possession of the property immediately after the exchange was completed, expended $219 for improvements, and paid the taxes, amounting to $16.08. The plaintiffs did not learn of the judgment against the Basyes until about the time of the commencement of this suit, and the grantees did not have actual knowledge of the appeal when they received the deed from the Basyes.

The plaintiffs herein assert that under the circumstances narrated, they became the owners of the land free from any lien on account of the attachment proceedings; while the defendants contend that the appeal served to suspend the order dissolving the attachment, and that the reversal of the judgment had the effect of reviving the lien created by the attachment. It will be observed that the purchasers were informed that a judgment had been rendered for the Basyes, and that the land had been released from the attachment, but that the plaintiffs herein did not have actual knowledge of the pending appeal. It will also be noticed that the court did not, at any time, make any order concerning the attachment or the attached property, except the single order dissolving the attachment and releasing the property. The question for decision then is whether the judgment for the defendants in the law action and the accompanying order of dissolution released the land from the grip of the attachment, so that, during the interim between the judgment and a reversal thereof a third party, who was without actual knowledge of the pending appeal, could purchase the property freed from the possibility of the attachment regaining its hold. We are not called upon to decide the effect of a purchase made after a reversal. The statute not only creates the right of attachment, but also determines the extent of such right, and is necessarily potent in solving the question presented by the facts.

An attachment proceeding is a provisional remedy (section 323, L. O. L.), which is granted to the plaintiff and enables him to have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered. Section 295, L. O. L. Real property is attached by the sheriff making a certificate containing the title of the cause, the names of the parties to the action, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff, and then delivering the same to the county clerk. Section 300, L. O. L. It then becomes the duty of the county clerk to whom the certificate is delivered immediately to file the same and record it in a book kept for that purpose, and thereupon the lien in favor of the plaintiff attaches to the real property described in the certificate. Section 302, L. O. L. From the date of the 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. Section 301, L. O. L.

By taking the steps pointed out a plaintiff can impress the land of a defendant with a lien which serves as a security until the attachment is discharged or the writ executed. Section 301, L. O. L. If the judgment for the defendants Basyes dissolved the attachment, then the lien was likewise terminated. In the absence of an express provision of statute continuing the lien of an attachment, a judgment for the defendant ipso facto destroys the lien and releases the attached property. Ranft v. Young, 21 Nev. 401, 32 P. 490; O'Connor v. Blake, 29 Cal. 312; Loveland v. Mining Co., 76 Cal. 562, 18 P. 682; Brown v. Harris, 2 G. Greene (Iowa) 505, 52 Am. Dec. 535; Harrow v. Lyon, 3 G. Greene (Iowa) 157; Clap v. Bell, 4 Mass. 99; Johnson v. Edson, 2 Aikens (Vt.) 299; Littlefield v. Davis, 62 N.H. 492; Blynn v. Smith, 4 N.Y. Supp. 306; ^[1]Higgins v. Grace, 59 Md. 365; rrod v. Davis, 17 Ala. 312; Farwell v. Tiffany, 82 Iowa, 405, 48 N.W. 723; Danforth v. Rupert, 11 Iowa, 547; Franklin Bank v. Bachelder, 23 Me. 60, 39 Am. Dec. 601; Meloy v. Orton (C. C.) 42 F. 513. While our statute does not directly state that a judgment for a defendant operates as a release of the attached property, it is quite plain that such a result is contemplated. If personal property be attached, section 309, L. O. L., provides that:

"If judgment be not recovered by the plaintiff, all the property attached, or the proceeds thereof, or the undertaking therefor, shall be returned to the defendant upon his serving upon the sheriff a certified copy of the order discharging the attachment."

If real property be the subject of the attachment, then "whenever such lien shall be discharged, it shall be the duty of the county clerk to enter upon the margin of the page on which the certificate is recorded a minute of the discharge." Section 302, L. O. L. This clerical duty, however, is not essential to effect a discharge of the real property. Meloy v. Orton (C. C.) 42 F. 513. Mr. Justice Moore, speaking for the court in Van Voorhies v. Taylor, 24 Or. 247, 33 P. 380, says:

"An attachment is an auxiliary proceeding of statutory origin. A dismissal of the action or a judgment for the defendant necessarily dissolves it."

We conclude, therefore, that the judgment for the defendants in the action at law operated as a dissolution of the attachment and released the attached property. The next inquiry is whether the appeal suspended the effect of the judgment on the attached property. There is a line of authorities holding that...