Victor Land Co. v. Drake

• Decision Date: 22 October 1912
• Citation: 127 P. 27,63 Or. 210
• Parties: VICTOR LAND CO. v. DRAKE.
• Court: Oregon Supreme Court

127 P. 27

63 Or. 210

VICTOR LAND CO. v. DRAKE.

Supreme Court of Oregon

October 22, 1912

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by the Victor Land Company against Charles Emmett Drake. Decree for defendant, and plaintiff appeals. Affirmed.

The complaint in this suit is in the usual form for determining an adverse claim to real property not in the actual possession of any other person than the plaintiff. The defendant, by his answer, denies all right of the plaintiff in the property, alleges title in himself by virtue of a tax sale of the premises as against W.J. Carter, the common grantor of the parties, and also sets up title by virtue of a conveyance direct from Carter to himself. About this conveyance, the answer states that it was made for a valuable consideration and delivered by Carter to the defendant December 27, 1905, but that by oversight it was not recorded until March 30, 1910. The answer further alleges that, long after both these conveyances of land to the defendant under the tax title and from Carter direct, the plaintiff took title from Carter with actual knowledge of the previous unrecorded conveyance from Carter to the defendant, and with information by the record of conveyances under the tax title. He avers that plaintiff's claim upon the property constitutes a cloud upon the title, and prays that it be removed and the title quieted. The reply denies the material allegations of the answer, and affirmatively alleges that without knowledge of the deed from Carter to the defendant the plaintiff took title from Carter by a conveyance dated March 28, 1910, and recorded March 29, 1910. It also alleges that it purchased an outstanding mortgage, dated December 19 1893, and executed by Carter prior to the sale of the premises, and afterwards it took title from Carter by virtue of the deed already mentioned, all without any notice of any claim by virtue of the deed of Carter to the defendant. It admits the notice imparted by the deed to the defendant under the tax title, but claims that the same was void. After a hearing, the circuit court passed a decree for the defendant to the effect that he is the owner in fee simple of the premises, that the claims of the plaintiff, both by its deed and the mortgage it claims to have purchased, are void and of no effect, and constitute a cloud upon defendant's title, which the decree removes, and that the title of the...