Western Loan & Savings Co. v. Currey

• Decision Date: 17 June 1901
• Citation: 39 Or. 407,65 P. 360
• Parties: WESTERN LOAN & SAVINGS CO. v. CURREY et al.
• Court: Oregon Supreme Court

65 P. 360

39 Or. 407

WESTERN LOAN & SAVINGS CO. v. CURREY et al.

Supreme Court of Oregon

June 17, 1901

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Suit by the Western Loan & Savings Company against H.E. Currey and others to determine the title to real estate. From a decree in favor of the plaintiff, defendants appeal. Affirmed.

The plaintiff is the owner of lot 6, block 29, in Atwood's Second addition to Baker City, acquired through the foreclosure of a mortgage executed by C.H. Stuller, October 7, 1893, and duly recorded in the proper records on the 10th. Stuller acquired the property July 14, 1890, and was the owner thereof when the mortgage was given. On June 29, 1892 J.B. Griswold obtained a judgment in the circuit court against P.R. Bishop and C.H. Stuller, doing business under the firm name of Bishop & Stuller. There was an attempt to docket this judgment, which it is alleged was ineffectual to create a lien upon the real property of Stuller, because the entry does not show the date "when docketed," or the court in which it was rendered. Griswold assigned to Currey, one of the defendants herein, but neither of them was made a party to the foreclosure suit. Currey's co-defendant is the sheriff of Baker county, who is attempting to sell the property under an execution issued upon the judgment. The plaintiff prays a reforeclosure of its mortgage, and an injunction restraining the defendants from the assertion of any rights under the judgment; but the suit may be appropriately treated as one to remove a cloud, or rather to prevent a cloud from attaching by reason of the threatened sale, and sheriff's deed which would eventually follow. There was a demurrer to the complaint which was overruled, and, defendants declining to plead further, a decree was entered as prayed for, and the defendants appeal.

Clarence Cole, for appellants.

J.B Messick, for respondent.

WOLVERTON, J. (after stating the facts).

The only questions involved are whether the judgment docket should show the date "when docketed" and the court in which the judgment was rendered as necessary prerequisites to its becoming a lien upon the real property of the judgment debtor. A judgment or decree does not become a lien upon the debtor's realty in this state merely by reason of its rendition and entry in the journal. It is the docketing that gives the lien and fixes the time when it attaches. Hill's Ann.Laws, § 269; Stannis v. Nicholson, 2 Or. 332; Creighton v. Leeds, 9 Or. 215, 220; In re Boyd, 4 Sawy. 262, Fed.Cas. No. 1,746. "The records of the circuit and county court are a register journal, judgment docket, execution docket, fee-book jury-book, and final record." "The judgment docket is a book wherein the judgments and decrees are docketed, as elsewhere provided in this Code. Each page thereof shall be divided into eight columns, and headed as follows: Judgment debtors; judgment creditors; amount of judgment; date of entry in journal; when docketed; appeal, when taken; decision on appeal; satisfaction, when entered." Hill's Ann.Laws, §§ 569, 572. And by section 269, supra, it is provided that, "immediately after entry of judgment in any action, the clerk shall docket the same in the judgment docket. *** From the date of docketing a judgment as in this title provided, *** such judgment shall be a lien upon all the real property of the defendant within the county, *** or which he may afterwards acquire therein, during the time an execution may issue thereon." A conveyance is rendered void as against the lien of a judgment unless recorded at the time of the docketing, or within the time after its execution provided by law as between conveyances for the same real property. Hill's Ann.Laws, § 271. And it has been held that a judgment lien must be acquired in good faith, and without notice of a prior unrecorded deed, to be effectual as against it, thus assimilating the acquirement of the lien in so far as it is affected by notice and good faith to the acquirement of title by conveyance; which construction of the statute, although not literal, is said to be "entirely consistent with the reason and spirit." Baker v. Woodward, 12 Or. 3, 13, 6 P. 173; Laurent v. Lanning, 32 Or. 11, 51 P. 80. The fifth column of the docket in controversy bears the heading, "Entered in Judgment Book," whereas it should have been, "When Docketed," under the statute. There is under this heading the words, "No. Page," and beneath these the letter and figures, "K 306."

The date of entry is entirely omitted from the record. There is attached to the complaint what purports to be a true copy of the judgment docket. This bears the heading, "Judgment Lien Docket, Baker County, Oregon," which is all the evidence that we have indicating the court in which the judgment was rendered. The purpose of the judgment docket is twofold: (1) To create a lien upon the debtor's real property, and thereby increase the efficiency and usefulness of the judgment; and (2) to impart and afford convenient notice and knowledge of such lien to those dealing with the property thus incumbered. The judgment docket, therefore becomes an important and essential record. The statute has prescribed with significant detail by what courts it shall be kept, and the manner in which it shall be made up, and the lien which its instrumentality affords is purely statutory, as it did not exist at common law. As a general rule, enactments designed for the creation of a lien must be substantially complied with in order to effectuate their purpose. Whatever is pointed out is in the nature of a...