Riddle v. Miller

• Decision Date: 05 March 1890
• Citation: 19 Or. 468,23 P. 807,18 Or. 460
• Parties: RIDDLE v. MILLER.
• Court: Oregon Supreme Court

23 P. 807

18 Or. 460, 19 Or. 468

RIDDLE v. MILLER.

Supreme Court of Oregon

March 5, 1890

Petition for rehearing.

This was an appeal from the circuit court of Josephine county. Upon the hearing the court announced its decision as follows "The only question of law arising upon this record we considered and decided in Wood v. Rayburn, 18 Or. 1 22 P. 521. We see no reason to depart from the conclusions there announced. After a careful examination of the evidence we have reached the same conclusions that the court below did. We do not think a particular examination of the facts disclosed by the evidence is necessary. The decree appealed from must, therefore, be affirmed." Counsel for appellant subsequently filed a petition for a rehearing.

(Syllabus by the Court.)

The intention of the legislature in adopting the several provisions of the statute (Hill's Code, §§ 150, 151, 271) was to give the creditor under an attachment, judgment, or execution the same standing in regard to his right in or to the property affected thereby which he would gain by a purchase of the property from the debtor.

. A creditor who attaches the land of his debtor, or obtains and dockets a judgment against him, who is at the time informed of an outstanding equity, or of facts sufficient to put him upon inquiry, takes his lien subject and subordinate to such equity.

Where the equitable right is superior to the legal right, its establishment in a court of equity becomes paramount to the legal right established in a court of law.

A.H. Tanner, for appellant.

P.P. Prim and Davis Brewer, for respondent.

PER CURIAM.

The counsel for the appellant herein, in his petition for a rehearing, has suggested certain propositions which he claims have a bearing upon the merits of his appeal, and which did not appear, from the opinion of the court rendered, to have been considered. The first proposition is as to the effect to be given to sections 150 (supposed to have been intended 271) and subdivision 4, § 283, Ann.Code Or. Said section 150 provides that, "from the date of the attachment until it be discharged or the writ executed, the plaintiff as against third persons, shall be deemed a purchaser in good faith, and for a valuable consideration, of the property," etc. Section 271 provides: "A conveyance of real property, or any portion thereof or interest therein, shall be void as against the lien of a judgment unless such conveyance be recorded at the time of docketing such judgment or the transcript thereof, as the case may be, or unless it be recorded within the time after its execution provided by law, as between conveyances for the same real property." Subdivision 4 of said section 283 provides that "property shall be levied on in like manner and with like effect as similar property is attached, as provided in sections 149 *** and 152, *** omitting the filing of the certificate provided for in section 151." The intention of the legislature, in adopting these several provisions of the statute, was to give the lien creditor under an attachment, judgment, or execution the same standing in regard to his right in or to the property affected thereby which he would gain by a purchase of the property from the debtor, so that in case the debtor had, prior to the levy of the attachment or execution or the docketing of the judgment, executed a deed of conveyance of it, if real property, and the deed were not recorded, as provided in sections 3023, 3024, Ann.Code, within five days thereafter, it would be void, as provided in section 3027, Ann.Code. Under the said provisions the lien of the creditor may attach to property rights which the debtor has in fact conveyed away by deed good as between him and his grantee, while, under the law as it existed prior to their...