Robinson v. Scott

• Decision Date: 13 June 1916
• Parties: ROBINSON v. SCOTT ET AL.
• Court: Oregon Supreme Court

158 P. 268

81 Or. 20

ROBINSON v. SCOTT ET AL.

Supreme Court of Oregon

June 13, 1916

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suit by W. M. Robinson against H. N. Scott and the Victor Land Company. Disclaimer by defendant Scott, and judgment for defendant Victor Land Company, and plaintiff appeals. Reversed, and plaintiff granted the relief prayed for in his complaint.

H. N Scott having filed a disclaimer, the parties who are now waging this contest are the plaintiff, W. M. Robinson, and the defendant Victor Land Company, a corporation. Robinson and the corporation are each asserting title adverse to the other in two lots in Portland, Or., and each is attempting to free such title from certain described clouds. The plaintiff traces his claim of title to two deeds: (1) A quitclaim deed from Walter A. Goss, and (2) a quitclaim deed from Florence C. Roberts, George Rhett Walker, and Anne Walker, his wife. The defendant offers to sustain its title with: (1) A quitclaim deed from Helen L. Walker; (2) a bargain and sale deed from Martha Neeley and James Neeley; and (3) a decree against Florence Raymond, George S. Raymond, Rhett G. Walker and Anne Walker. Robinson is attempting to remove the clouds created by the Helen L. Walker deed, the Neeley deed, the decree against Florence Raymond and others, and a quitclaim deed signed by Ernest House and Marie House. The Victor Land Company is striving to dissipate the clouds cast by the deed signed by Florence C. Roberts, George Rhett Walker, and his wife, and the deed given by Walter A. Goss. The story of the title may be written in four chapters; (a) A divorce suit maintained by Helen L. Walker against J. S. Walker her husband; (b) a tax sale; (c) a decree purporting to quiet the title of the Victor Land Company against Florence Raymond George S. Raymond, Rhett G. Walker, and Anne Walker; and (d) the deed executed by Florence C. Roberts, George Rhett Walker, and Anne Walker. The deed from Helen Walker to the company is referable to the divorce suit. The history of the tax sale includes the deed from Goss to Robinson and the two deeds delivered to the corporation by the Houses and the Neeleys. The decree in the suit prosecuted by the Victor Land Company stands as a chapter by itself, although a discussion of the decree necessarily involves a narrative of the circumstances surrounding the execution of the deed from Florence C. Roberts and others. The four chapters will be recited in the order in which they have already been given. J. S. Walker was the record owner of the lots involved in this suit, and was the husband of Helen L. Walker when in 1888 she commenced a suit for divorce against him in the district court for Pierce county, Washington Territory, both parties being residents of Washington Territory; and on November 9th of that year she obtained a decree granting her a divorce, the custody of the children Florence C. Walker and Rhett G. Walker, and adjudging her the owner of certain real property in Washington Territory. On April 14, 1908, Helen L Walker caused a guardian ad litem to be appointed for J. S. Walker, who was at that time in an insane asylum in Washington, and then on the same day upon her motion the superior court for Pierce county, Wash., amended the divorce decree by declaring that Helen L. Walker owned the lots in Oregon. The parties stipulated that:

"The laws of the state of Washington provide that in a suit for the dissolution of the marriage contract, the court is given the power under the statute to give to either spouse any or all of the property, within its discretion."

Afterwards on August 30, 1910, Helen L. Walker quitclaimed the lots to the Victor Land Company. The two lots were assessed for the year 1894 to "J. P. Walker and to all owners and claimants, known and unknown." The taxes not having been paid, the sheriff sold both lots for a lump sum at a tax sale to Ernest House. House assigned his certificate of sale to W. H. Lutz, who received a tax deed from the sheriff on November 29, 1901. Lutz afterwards conveyed to Walter A. Goss, who in turn quitclaimed to the plaintiff on March 15, 1905. Subsequently, on June 30, 1906, the plaintiff quitclaimed to Martha Neeley and James Neeley, but the Neeleys afterwards on December 22, 1909, entered into a contract to resell the lots to Robinson, and it was agreed that the latter would be entitled to receive a quitclaim deed, which was in escrow, when all the purchase price was paid. Robinson paid the consideration and obtained the deed on April 17, 1911. The Victor Land Company received a quitclaim deed from Ernest House and wife on November 18, 1899 and a bargain and sale deed from Martha Neeley and James Neeley on March 23, 1911; but when the latter deed was delivered, the company had knowledge of the contract between the Neeleys and Robinson. J. S. Walker died on April 18, 1913. Not knowing of his death, the Victor Land Company commenced a suit to quiet title to the two lots on October 29, 1913, against J. S. Walker in the circuit court for Multnomah county, Or. An order was made for the publication of summons, but shortly afterwards the Victor Land Company filed an affidavit, averring that "J. S. Walker died since the commencement of this suit," and that the only heirs at law are Rhett G. Walker and Florence C. Raymond, and that Anne Walker is the wife of Rhett G. Walker while George S. Raymond is the husband of Florence C. Raymond. On December 8, 1913, the court ordered:

"That said Rhett G. Walker and Anne Walker, his wife, Florence C. Raymond and George S. Raymond, her husband, be, and they are hereby, substituted and made defendants in this suit in place of J. S. Walker, and it is hereby ordered by the court that the names of said substituted parties be written in and placed in the complaint in this suit."

The names of the substituted defendants were written in the title only of the complaint which had been filed against J. S. Walker, but otherwise that pleading remained exactly as it was when originally filed. On January 26, 1914, the court ordered that the summons be served on the substituted defendants by publication in a newspaper. The summons was entitled against "J. S. Walker, Defendant Florence C. Raymond, George S. Raymond, Her Husband, Rhett G. Walker and Anne Walker, His Wife, substituted for J. S. Walker, Defendants." It was addressed, "To Florence Raymond, George S. Raymond, Rhett G. Walker and Anne Walker, the Above-Named Defendants," and it advised the defendants that the Victor Land Company intended to apply for a decree adjudging the corporation to be the owner of the lots and barring the defendants from asserting any claim in the land. The summons was published and a copy of it, together with a copy of the "complaint herein," were "mailed to each of said defendants at their post office address." None of the defendants appeared in the suit, and consequently on March 19, 1914, the court entered the default of the substituted defendants, and decreed that the Victor Land Company was the owner of the land as against those defendants. On March 19, 1914, the same day that the decree was rendered, "Florence C. Roberts, widow, and George Rhett Walker, his wife, the heirs at law of Johnson S. Walker deceased, executed a quitclaim deed" to Arthur L. Pressy, who was really a trustee for W. M. Robinson, and then Pressy quitclaimed to Robinson on March 23, 1914. After a trial the circuit court decreed the Victor Land Company to be the owner in fee simple of the lots, and declared that W. M. Robinson possessed no interest in the property. The plaintiff appealed.

Edward A. Lundburg, of Portland (C. O. Garmire, of Portland, on the brief), for appellant. Frank Schlegel, of Portland, for respondent.

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

Neither the decree of divorce rendered in Washington Territory nor the subsequent modification of that decree by the superior court of Pierce county, Wash., conferred upon Helen L. Walker any title which her husband had to land in Oregon, and consequently the quitclaim deed which Helen L. Walker made to the Victor Land Company on August 30, 1910, was worthless, for the reason that she had no interest to convey. The divorce decree which Helen L. Walker obtained in Washington did not so operate upon section 511, L. O. L., as to convey to her any estate in the Oregon land, because that provision of the Code applies to decrees rendered in Oregon. Barrett v. Failing (C. C.) 3 Fed. 471, 6 Sawy. 473; Barrett v. Failing, 111 U.S. 523, 4 S.Ct. 598, 28 L.Ed. 505. While it is true that the law of Washington authorizes a court of that state to "give to either spouse any or all of the property," still the Washington court was without power to pass to Helen L. Walker the title to land in Oregon, because the Washington statute is "confined in its operation to the property of the parties within that state." Barrett v. Failing (C. C.) 3 Fed. 471, 477, 6 Sawy. 473, 480; 14 Cyc. 728; 23 Cyc. 1548.

None of the deeds which trace their origin to the tax sale transferred any title. Applying the doctrine announced in Lewis v. Blackburn, 42 Or. 114, 69 P. 1024, where the court was governed by the same statutes which existed when the instant tax sale was made, the tax deed given by the sheriff to W. H. Lutz was void because it showed on its face that the assessment had been made to "J. P....