Walker v. Goldsmith

• Decision Date: 11 November 1886
• Citation: 12 P. 537,14 Or. 125
• Parties: WALKER v. GOLDSMITH and others.
• Court: Oregon Supreme Court

12 P. 537

14 Or. 125

WALKER v. GOLDSMITH and others.

Supreme Court of Oregon

November 11, 1886

December 23, 1886

Appeal from circuit court, Multnomah county. Partition.

STRAHAN, J.

The plaintiff brings this suit to obtain partition of the east half of the Danforth Balch donation land claim, situate in Multnomah county, Oregon. He alleges that he is the owner of 11335-100000 of said claim; that Louis Goldsmith is the owner of one-quarter; that Max Goldsmith is the owner of one-quarter; that L.W. Gilliland is the owner of 17067-100000; that Seneca Smith is the owner of 9583-100000 and that Anna Hamilton and Emma Dickinson each own one-twentieth.

The defendants Louis Goldsmith and Max Goldsmith answered together, denying the material allegations of the complaint except that Max Goldsmith is the owner of one-fourth of the real property described, and Louis Goldsmith is the owner of five-eighths thereof. Their answer then alleges that the defendant Max Goldsmith is the owner in fee of an undivided one-quarter of said real property, and that the defendant Louis Goldsmith is the owner in fee of the undivided five-eighths of said real property described in the complaint, and that the defendants L.W. Gilliland, Seneca Smith, Emma Dickinson, Anna Hamilton, and P.L. Willis are the owners in fee of the undivided one-eighth of said premises and that they have not together, nor has either of them, any other right, title to, or interest in said real estate; but these defendants have no knowledge or information sufficient to form a belief as to the rights of the said Gilliland Smith, Dickinson, Hamilton, and Willis, as between themselves.

The plaintiff's reply denies that Willis owns any part of said real property, or that he has any interest therein. It also puts in issue the residue of the new matter contained in the answer. The defendants Dickinson, Smith, and Hamilton answered, admitting their interest as alleged. Upon these issues the case was tried in the court below, where a decree for the partition of said real property was entered substantially in accordance with the prayer of the plaintiff's complaint. By said decree the court find that the land to be partitioned contained 172.96 acres, and that the several parties plaintiff and defendant owned the same as tenants in common in the proportions alleged in the complaint.

From this statement of the pleading it will readily be perceived that the only real contention is between the defendant Louis Goldsmith and his co-defendants, Gilliland, Smith, Dickinson, and Hamilton, and the plaintiff, as to the ownership of the undivided three-eighths in issue between them. The pleadings admit that he owns two-eighths or one-quarter, but they deny that he owns the other three-eighths which he claims; and that is the only controverted question we are called upon to determine.

It is conceded by all that on the fourth day of October, 1870, one-half of the land, including the three-eighths in controversy, belonged either to J.H. Mitchell or to John Danforth, Louis and Emma Balch, children of Danforth Balch, then deceased, and of Mary Jane Balch, who died in 1875, and that, unless it then belonged to Mr. Mitchell, it does not now belong to Louis Goldsmith, and that Mr. Mitchell then owned a life-estate in said land for the life of said Mary Jane Balch, with a right to the possession of the whole during the continuance of said life-estate; that on the fourth day of October, 1870, Mitchell conveyed to B. Goldsmith, for the consideration of $15,000, all his right, title, and interest of, in, and to the said premises, and that on the twenty-sixth day of October, 1870, said B. Goldsmith sold to P. Wasserman all his right and title and interest in said real property for $10,000, except the said life-estate, which last estate terminated with the death of Mary Jane Balch in 1875. On the twelfth day of July, 1871, for the consideration of $1,000, Wasserman sold and conveyed all his right, title, and interest in said real property to Joseph Teal. The interest that is claimed which passed by these mesne conveyances to Teal was the same interest that was sold by C.S. Silvers, as guardian of Danforth Balch, Emma Balch, John Balch, and Louis Balch on the twenty-fourth day of September, 1870, to John H. Mitchell. If the county court of Multnomah county had jurisdiction to order the sale of the interest of said heirs, then, for all the purposes of this case, Mitchell acquired their interest. The interest which the defendants Gilliland, Smith, Dickinson, Hamilton, and the plaintiff, Walker, represent in this case, is whatever interest they have acquired through mesne conveyances from the four children of Danforth Balch, above named, or such as the defendant Emma Dickinson has in her own right, and their present interest depends on the validity of the guardian's sale above referred to, and the effect to be given to the decree of this court in the case of Teal v. Dickinson, and in the case of Same v. Same, which cases appear to have been consolidated, and one decree rendered disposing of both causes in the same manner. If the guardian's sale above referred to is a nullity, or if the decree in the causes last named was binding upon Solomon Goldsmith, or affected his interest, then the plaintiff, and these defendants, whose title depends on the same questions, are entitled to have partition of said premises as prayed; otherwise the defendant Louis Goldsmith is entitled to five-eighths of said real property, and must have partition thereof as prayed by him and Max Goldsmith in their separate answer.

And, first, as to the guardian's sale. The entire record of the county court of Multnomah county in that matter has been offered in evidence in this cause, and we have carefully examined it. No substantial defect or irregularity was pointed out to us upon the argument, and we have discovered none. The county court, at the time it made the order of sale in question, appears from the record to have acquired jurisdiction of the subject-matter, and of the persons to be affected by its orders and decrees. The sale was regularly made, reported to the court, and on the third day of October, 1870, duly confirmed by said court; and the guardian was directed to execute and deliver a deed to J.H. Mitchell, the purchaser, for the property purchased by him.

Upon the argument two points of objection were suggested against the validity of the sale. The first was that, at the time C.S. Silvers was appointed guardian of said minors, they were not residents or inhabitants of Multnomah county; and the other objection is that J.H. Mitchell was not authorized to purchase, because he was one of the attorneys for the guardian, and that there was some kind of fraud practiced between the attorney and the guardian. But, if it were competent to raise these questions between the parties now before the court, it has not been done. The pleadings in this suit are silent on both points. They contain no allegations of fraud, or other allegations tending to impeach the jurisdiction of the county court of Multnomah county in decreeing said sale.

But, if this sale can be attacked, it must be on some one or all of the grounds specified in the statute. The section on the subject is as follows: "Sec. 20. In the case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward, or any person claiming under him, shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear (1) that the guardian was licensed to make the sale by a court of competent jurisdiction; (2) that he gave a bond that was approved by the county judge; (3) that he took the oath prescribed by this chapter; (4) that he gave notice of the time and place of sale, as prescribed by law; and (5) that the premises were sold, accordingly, at public auction, and are held by one who purchased them in good faith." Gen.Laws, 882, § 20.

In a case arising under a similar statute in the state of Minnesota, the appointment of a guardian was not allowed to be attacked collaterally. Davis v. Hudson, 29 Minn. 27; S.C. 11 N.W. 136. We therefore hold that this record is sufficient, and that, by virtue of said guardian's sale, and the mesne conveyances offered in evidence on the part of the defendant Louis Goldsmith, Joseph Teal acquired four-eights of the east half of the Danforth Balch donation land claim mentioned in the pleadings.

The effect of the decree of this court against Teal, above referred to, upon the interest of the defendant Louis Goldsmith remains to be considered.

On the fifth day of May, 1880, Joseph Teal filed his complaint in the circuit court of Multnomah county, Oregon, against Frank Dickinson and Emma Dickinson, his wife, formerly Emma Balch James G. Chapman, Danforth Balch, and Louis Balch, to quiet his title to a half interest in said east half of said donation land claim, which half interest included the three-eighths now in controversy. On the sixth day of May, 1880, the summons in said suit was regularly served on the defendant Chapman. On the fifteenth day of May, 1880, a stipulation was signed by the attorneys, whereby it was agreed that John Balch, Louis Balch, and James G. Chapman should have until the second Monday of the next term of court thereafter in which to plead, and the said James G. Chapman then entered his appearance for himself, and as attorney for the defendants John and Louis Balch. On the fifteenth day of July, 1880, said defendants filed their answer. On the second day of January, 1877 or 1878, Joseph Teal and Solomon Goldsmith, of San Francisco, entered into an agreement in writing, whereby, in consideration of...