Willamette Real Estate Co. v. Hendrix

• Citation: 28 Or. 485,42 P. 514
• Parties: WILLAMETTE REAL-ESTATE CO. v. HENDRIX. [1]
• Decision Date: 02 December 1895
• Court: Supreme Court of Oregon

42 P. 514

28 Or. 485

WILLAMETTE REAL-ESTATE CO. v. HENDRIX. ^[1]

Supreme Court of Oregon

December 2, 1895

Appeal from circuit court, Washington county; Thomas A. McBride Judge.

Action to quiet title by Willamette Real-Estate Company against H.H Hendrix. Defendant had judgment, and plaintiff appeals. Affirmed.

This is a suit to quiet the title to lots 3, 4, 5, 6, 7, 8, 9, and 10 in block 25; lots 6, 7, 8, 9, and 10 in block 26, blocks 35 36, and the four blocks known as the "Courthouse Square," in the town of Cornelius, Or. The facts are That on June 7, 1860, the defendant was the owner in fee simple of the following described premises, to wit "Beginning at a point 13.12 chains east of the northwest corner of B.Q. Tucker's land claim, in Washington county, Oregon; running thence south 45.75 chains, to the base line; thence east 30 chains; thence north 45.75 chains; thence west 30.60 chains, to the place of beginning,--containing 140 acres." That on the 3d day of July, 1860, the county court of Washington county, Or., rendered judgment in favor of one W.T. Newby against the sad defendant upon his confession, in words and figures as follows, to wit:

"In the County Court of the State of Oregon for Washington County. W.T.N. Newby v. H.H. Hendrix. Confession of Judgment. I, H.H. Hendrix, the defendant above named, hereby confess myself indebted to W.T. Newby, of Yamhill county, Oregon, in the sum of three hundred and ten dollars, due upon a written contract for the payment of money only. And I hereby further state that the said sum of three hundred and ten dollars is justly due said plaintiff. And I authorize judgment to be entered against me for said sum of three hundred and ten dollars. [ Signed] H.H. Hendrix. Dated the 7th day of June, A.D. 1860. Witnesses: W.D. Hare. Wm. Brown.

"State of Oregon, County of Washington--ss.: H.H. Hendrix, being duly affirmed, deposes and says that the foregoing confession of judgment is true and correct, and made by him. [ Signed] H.H. Hendrix.

"Subscribed and sworn to before me, this 7th day of June, 1860. W.D. Hare, Clerk of the County Court."

That on October 23, 1861, by consideration of the circuit court of said county, one S.M. Gilmore obtained a judgment against said H.H. Hendrix for $890.53, in his absence, the service of the summons having been made by publication. That on March 18, 1862, an execution was issued upon the Newby judgment, which recited that "whereas, on the seventh day of June, 1860, by consideration of a confession of judgment in the circuit court of the county of Washington, in the state of Oregon, W.T. Newby, plaintiff, recovered judgment against H.H. Hendrix, defendant, for the sum of three hundred and sixteen dollars, damages and costs, which judgment was enrolled and docketed in the clerk's office of said court on the 7th day of July, 1860," and commanded the sheriff of said county to satisfy the same out of the personal property of the defendant, or, if sufficient could not be found, then out of the real property belonging to him in that county. That on the same day an execution was also issued on the Gilmore judgment. That the sheriff levied on the real property above described and other lands of the defendant under both writs, and made the following return on the first execution: "Served the within execution by levying upon the following described real estate (for the want of personal property), to wit: 'Lying and being in the county of Washington, Oregon, and described as follows: [Here follows the description of the 140-acre tract as above given, and also the description of another tract, known as the "H.H. Hendrix Donation Land Claim."]' And after duly advertising the same, as required by law, as the annexed notice will show, for sale to the highest bidder, for cash, on the premises, on Tuesday, the 22d day of April, A.D.1862, on which day I proceeded to offer said premises as follows, to wit: The first described piece, and sold the same to Mrs. Adelia Snelling, for the sum of three hundred dollars, she being the highest bidder therefor; I then proceeded to offer the second described piece, and sold the same to Mrs. Adelia Snelling, for the sum of one hundred dollars, she being the highest bidder therefor,--being the sum of four hundred dollars for the whole of said lands; the interest sold being the entire interest of said H.H. Hendrix in and to the same. And I disposed of said proceeds of said sale as follows: Paid to W.T. Newby the sum of two hundred and eighty-three dollars and seventy-five cents ($283.75), being the principal and interest of this execution; paid W.D. Hare, clerk, $4.71, clerk's fees; paid sheriff's fees, original costs, $17.10; county fee, $3.00; paid accruing costs, $30.55,--leaving in my hands the sum of $63.85, to apply on an execution in my hands, issued out of the circuit court in favor of W.T. Newby, assignee of S.M. Gilmore, vs. H.H. Hendrix, to pay the costs of the same; leaving the sum of $45.92 due on this execution, April 22, 1862. [ Signed] R.E. Wiley, Sheriff Washington County." That said officer indorsed on the second execution the following return: "Served this execution by applying thereon the sum of $63.85, proceeds of the sale of lands on an execution in favor of W.T. Newby v. H.H. Hendrix, upon which this execution was levied by order of plaintiff, and the land advertised. I disposed of the said sums as follows, to wit: Paid clerk's fees, $4.65; sheriff's, original, $7.65; county, $5.00; advertising, $16.00; paid accruing costs, $30.50. [ Signed] R.E. Wiley, Sheriff Washington County." That on October 12, 1863, the sheriff executed to the said purchaser, Adelia Snelling, a deed, wherein he recited that the premises therein described had been levied on and sold to her in pursuance of an execution issued out of the circuit court in the case of Gilmore vs. Hendrix, and by virtue of an execution issued out of the county court in the case of Newby vs. Hendrix. That the following indorsement appears on said deed: "State of Oregon, County of Washington--ss.: No irregularity in the proceedings concerning the sale within recited appearing, this deed is approved in open court, this 13th day of October, A.D.1863. Erasmus D. Shattuck, Judge of the Circuit Court." That, Adelia Snelling having died intestate, one Wheelock Simmons was appointed administrator of her estate, who, on July 15, 1866, in pursuance of an administrator's sale of the decedent's real property, executed to one Stephen Sell a deed to the premises so purchased from the sheriff. That on April 17, 1871, Sell and wife, by deed, conveyed the same premises to one William L. Halsey, who established and platted the town site of Cornelius thereon, and, having dedicated the streets to the public on September 22d, of that year, filed a plat thereof for record. That on December 5, 1872, Halsey and wife, by deed, conveyed the lots and blocks first above described, together with other lots and blocks in the town of Cornelius, to the plaintiff, who immediately removed the fences which inclosed the premises so platted into lots and blocks. That in December, 1891, the defendant commenced to inclose the land in controversy; and, refusing to desist when so ordered, this suit was instituted. The plaintiff alleges in its complaint that it is the owner in fee and in the possession of the premises, and that it had been in the continued adverse possession thereof for a period of more than 10 years prior to the commencement of the suit, and prays that the defendant be required to set forth any title that he may claim therein, that he be decreed to have no title to said premises, and that plaintiff has a valid title thereto. The defendant, after denying the material allegations of the complaint, alleges that he is the owner and in possession of the premises, and sets out the source and muniments of his title; that the plaintiff is asserting some title thereto, but that its conveyances and claim based thereon constitute a cloud on his title, which he prays may be removed.

The reply having put in issue the allegations of new matter contained in the answer, the cause was referred to C.E. Runyon, who took and reported the evidence from which the court below found that the equities were with the defendant; and, having rendered a decree as prayed for in the answer, the plaintiff appeals.

A.H. Tanner, for appellant.

Thos. H. Tongue and S.B. Houston, for respondent.

MOORE, J. (after stating the facts).

It is contended by plaintiff that the county court, being a court of record, and invested with civil jurisdiction, to be defined, limited, and regulated by law, not exceeding the amount of $500 (sections 1, 12, art. 7, Const. Or.), was further invested by an act of the legislative assembly, approved June 4, 1859 (Laws 1859, p 9), with authority to enter on the defendant's confession a judgment which should not be subject to review in a collateral suit. Conceding, without deciding, that the county court had such authority, we will examine the foundation of plaintiff's alleged title, viz. the judgment, execution, sale, and deed. McRae v. Daviner, 8 Or. 63; Faull v. Cooke, 19 Or. 455, 26 P. 662; Cloud v. El Dorado Co., 12 Cal. 128; Clark v. Lockwood, 21 Cal. 220; Blood v. Light, 38 Cal. 649. The sheriff's return shows that the real property was sold upon an execution issued out of the circuit court on a judgment by confession rendered in the county court. Every court has the inherent right to control its own process, and, unless authorized by law, no other court can interfere with such right. Harris v. Cornell, 80 Ill. 54. There being no statutory provision authorizing the clerk of the circuit court to issue an execution out of that court upon a judgment rendered in the county court, the writ...