Wood v. Fisk

• Decision Date: 27 June 1904
• Citation: 77 P. 128,45 Or. 276
• Parties: WOOD et al. v. FISK et al.
• Court: Oregon Supreme Court

77 P. 128

45 Or. 276

WOOD et al. v. FISK et al.

Supreme Court of Oregon

June 27, 1904

Appeal from Circuit Court, Wallowa County; Robert Eakin, Judge.

Action by Richard M. Fisk and another against John A. Wood and another. From a judgment dismissing defendants' cross-bill, they appeal. Reversed.

In September, 1902, the defendant Richard M. Fisk brought an action in the circuit court of Wallowa county against the plaintiffs to recover possession of certain real property with damages for withholding the same. The plaintiffs answered, and at the same time filed a complaint in equity in the nature of a cross-bill, setting up facts which they insisted required the interposition of a court of equity and were material to their defense in the action at law. A demurrer to this cross-bill was sustained, and, the plaintiffs declining further to plead, the cross-bill was dismissed, and they appeal.

Long &amp Sweek and John S. Hodgin, for appellants.

D.W Sheahan, for respondents.

BEAN J.

The allegations of the cross-bill, in substance, are that in 1896, one S.A. Miles recovered a judgment against the defendant M. Fisk in the circuit court for Gilliam county for the sum of $1,322.02, besides attorney's fees and costs; that the judgment was entered in the judgment lien docket of that county, but the time "when docketed" was not stated therein; that a transcript of the lien docket was filed with the county clerk of Wallowa county on July 2, 1900, and at that time the defendant M Fisk was the owner of the real property in controversy; that on the 9th of July, 1900, after the entry of the same in the lien docket of Wallowa county, Fisk, without consideration and for the purpose of hindering, delaying, and defrauding creditors, particularly Miles, the judgment creditor, transferred and conveyed the property in controversy to his son, the defendant Richard M. Fisk; that thereafter an execution was issued on the judgment recovered by Miles against Fisk in Gilliam county, directed to the sheriff of Wallowa county, who by virtue thereof levied upon and sold the real property in controversy to the plaintiffs' ancestor, S.G. Wood, for the sum of $600, he being the highest and best bidder therefor; that the sale was confirmed, and a sheriff's deed issued and delivered to the purchaser, who entered into possession of the premises, and so continued until the 20th of July, 1901, when he died, leaving as his heirs the plaintiffs herein, who have ever since been in possession thereof. The argument in support of the decree of the court below is that it appears from the cross-bill that the plaintiffs had a complete defense to the action of ejectment brought against them by the defendant Richard M. Fisk, and therefore were not entitled to the interposition of a court of equity. The judgment recovered by Miles against Fisk in Gilliam county was never docketed so as to become a lien upon real property, because the time "when docketed" was not stated in the judgment lien docket, as required by statute. Hutchinson v. Gorham, 37 Or. 347, 61 P. 431; Western Sav. Co. v. Currey, 39 Or. 407, 65 P. 360, 87 Am.St.Rep. 660. The filing of a transcript of such lien docket in Wallowa county was therefore ineffectual to create a lien upon the property in controversy, and hence the title acquired by the plaintiffs' ancestor at the sale under the execution issued on the judgment did not relate back to the filing of the transcript, and was not prior in time to the alleged fraudulent deed from the defendant M. Fisk to his codefendant, so that plaintiffs did not have the prior record title. The case, therefore, turns upon the question as to whether the allegation that the conveyance from the defendant M. Fisk to his son, after the rendition of the judgment and prior to the seizure of the property under the execution thereon, was for the purpose of hindering and delaying creditors, constitutes such a defense to the action of ejectment...