Belcher v. La Grande Nat. Bank

171 P. 410, 87 Or. 665, 1918 Ore. LEXIS 307

Opinion

Mr. Justice Benson

delivered the opinion of the court.

1, 2. Upon the facts as above stated we are called upon to decide whether or not plaintiff’s unrecorded deed is superior to the lien of defendant’s docketed judgment. Counsel for defendant urge that the evidence does not establish a delivery of plaintiff’s deed. The defendant can only question the delivery of the conveyance so far as it involves the interest of the grantor Stine, and as to his interest, at least, the evidence is clear that the deed was delivered to the son as the agent of his mother. The conveyance was executed at a time when, so far as the record discloses, there were no creditors to complain and the transaction carries no taint of fraud. The judgment was not docketed in Multno malí County until nearly four years after the transfer of the property to plaintiff. Prior to such transfer and at all times subsequent thereto, and until after this suit was commenced, the properties involved were in the open and notorious occupancy of strangers to the legal title; that is, of the holders of contracts for the purchase of the land.

3, 4. In support of the contention that the lien of its judgment is superior to plaintiff’s deed, defendant relies upon the language of Section 207, L. O. L. The effect of this statute was first considered by this court in Stannis v. Nicholson, 2 Or. 332, in which it was held that a judgment lien cannot, by virtue of that act, prevail over known equitable rights, and this view has been consistently maintained in many decisions since then. In one of these, Laurent v. Lanning, 32 Or. 11, 18 (51 Pac. 80), Mr. Justice "Wolverton says:

“It has become the settled construction of this statute that a judgment lien, in order to have precedence over a prior unrecorded deed or mortgage, must have been taken or acquired in good faith, without notice or knowledge of such prior unrecorded conveyance or mortgage, thus putting the judgment lien creditor upon the same footing as if he had subsequently acquired a deed to the same premises.”

In Randall v. Lingwall, 43 Or. 383 (73 Pac. 1), Mr. Justice Bean says:

“It seems to be well settled that the open, exclusive, and notorious possession of property by a stranger to the title is sufficient to put those who deal with it upon inquiry concerning the rights and equities of the party in possession, and to charge them with knowledge thereof when no inquiry is made. ’ ’

Defendant urges that in this case the occupants of the premises prior to the execution of plaintiff’s deed are the same people who occupied them afterward. We cannot see that the identity of the occupants makes any substantial difference in the result for the fact at all times remained the same—they were strangers to the title and possessed the information which should have informed defendant of plaintiff’s equities. We conclude that the decree of the trial court should be affirmed and it is so ordered. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Moore concur.