Wilhelm v. Woodcock

• Decision Date: 11 December 1884
• Citation: 5 P. 202,11 Or. 518
• Parties: WILHELM v. WOODCOCK and others.
• Court: Oregon Supreme Court

5 P. 202

11 Or. 518

WILHELM v. WOODCOCK and others.

Supreme Court of Oregon

December 11, 1884

W.S Woodcock and R.S. Strahan, for appellants.

J.R Bryson and John Burnett, for respondent.

THAYER, J.

This appeal is from a decree rendered in favor of the respondent and against the appellants, enjoining them from selling certain real property, consisting of 277 acres of land situated in the county of Benton, state of Oregon, by virtue of an execution issued out of the said circuit court upon a judgment at law recovered in favor of the appellant Woodcock against one David Huggins, and delivered to the appellant King, sheriff of said county of Benton, for service. It appears from the pleadings in the suit that on the first day of February, 1876, said Huggins was the owner of said real property, having the legal title in fee to 140 acres thereof and the equitable title to the remainder, the legal title thereof being in one Alexander Lamb, in trust for Huggins that on said first day of February, 1876, said David Huggins executed in due form a deed to said 140 acres to one John Rickard, and at the same time the said Alexander Lamb executed a deed to said 137 acres to said Rickard; that said deeds were absolute in terms, and each contained a covenant of warranty; that at the same time said John Rickard executed to the said Huggins an agreement under seal, whereby he agreed to sell to the said H. the two parcels of said real property for $2,536, gold coin, in consideration of which said H. agreed to pay to the said R., on the first day of February, 1877, said sum of $2,536; also, to pay all state, school, and county taxes or assessments, of whatsoever nature, which were or might become due on the said premises, and which said agreement further provided that in case said Huggins neglected to comply with his said agreement, the said Rickard should be released from all obligations in law or equity to convey said property, and that said H. should forfeit all right thereto; and that said R., on receiving such payment as provided in said agreement, would execute a good and sufficient deed to said premises in fee-simple to the said H.

It further appears from said pleadings that afterwards, and on the sixteenth day of January, 1878, said Rickard and his wife executed a deed to said premises to the respondent, Adam Wilhelm, and that said Huggins and his wife signed and sealed the same, and that afterwards, and on the ________ day of December, 1879, said respondent, Wilhelm, executed a deed to the premises to one Albert Humphrey, who executed a mortgage thereon to said respondent for the sum of $1,253; that said mortgage was subsequently foreclosed; that a sale of said premises under said foreclosure was had, and on the ________ day of February, 1882, a sheriff's deed to the premises was executed to the respondent; that on the fourteenth day of April, 1879, the appellant William C. Woodcock recovered in said circuit court a judgment against the said David Huggins for the sum of $1,279.96, United States gold coin, with certain interest which had accrued upon his claim, and the costs of action, which, having been docketed in the office of the clerk of said court, he afterwards, and on the twenty-fifth day of October, 1882, caused an execution to be issued thereon, and upon which said appellant Sol. King, as such sheriff, was proceeding to sell said premises when the suit herein was commenced to restrain such sale.

The appellants claim that the transaction between said Rickard and said Huggins in regard to the execution of said deed by Huggins, and the deed from Lamb to Rickard, and the agreement to sell the premises to Huggins, was a mere mortgage of said property to secure the payment of money due from Huggins to Rickard; and that the deed from Rickard and wife to respondent, in which Huggins and wife joined, by an understanding and agreement between all the parties, operated only as a substitution of respondent in place of the said Rickard, and constituted him a mortgagee of the premises, and that Huggins still remained the mortgagor; and that when the deed was executed to Humphrey by a like understanding, he also became mortgagee thereof, Huggins thereby becoming mortgagor to him until the foreclosure of the mortgage executed by Humphrey to respondent, and the repossession of the title to the premises by the latter under the foreclosure proceeding. The respondent, on the contrary, claims that the transaction between Rickard and Huggins in reference to said property was, as the deeds import, an absolute sale by the former to the latter, and an agreement to resell the property upon the terms specified in said agreement under seal before referred to; and that the second deed of transfer by Rickard to the respondent, Wilhelm, and the signing and sealing of the same by Huggins and wife, transferred and conveyed to r...