Carroll v. Gilham

26 P. 863, 21 Or. 21, 1891 Ore. LEXIS 4

• Court: Oregon Supreme Court
• Decided: May 14, 1891
• Status: Published

Opinion

StrahAN, C. J.

We do not deem it necessary in this case to say anything in relation to the grantor’s lien, or whether the defense of the statute of limitation was waived by pleading over. The sole question necessary for us to determine arises upon the separate answer of the defendant Gilham. That answer brings the defendant within the principles of law defining a bona fide purchaser for value without notice, heretofore stated and recognized in several cases in this court. (Wood v. Rayburn, 18 Or. 1; Weber v. Rothchild, 15 Or. 385; 3 Am. St. Rep. 162; Hyland v. Hyland, 19 Or. 51.)

The only question under these authorities is one of fact. We have carefully looked into the evidence and think the defendant has fully and satisfactorily sustained his plea. The evidence shows that Berry was in possession of the premises at the time he sold to the defendant under a warranty deed from Stansell; that he sold the same to Gilham and gave a warranty deed therefor, and that defendant entered into possession thereunder and paid the consideration agreed upon, which was $1,200, and that at no time before or pending any of said negotiations or proceedings did the defendant have any notice of the fact that Berry had not paid the purchase price of said land.

Under these facts we have no hesitancy in saying Gilham is a bona fide purchaser, and is entitled to be protected. W e have assumed without deciding that the grantor’s lien exists in this state, but as to that the members of the court are not agreed; but the decision of the question is not necessary in this case, for the reason that, conceding its existence, the plaintiff could not prevail against Gilham, who holds the legal title freed from such latent equity.

Let the decree appealed from be affirmed.