Haines v. Connell

87 P. 265, 48 Or. 469, 1906 Ore. LEXIS 115

• Court: Oregon Supreme Court
• Decided: October 30, 1906
• Status: Published

Opinions

Mr. Chief Justice Bean

delivered the opinion.

It is contended by defendants that the deed from Kane to the plaintiff was intended as a mortgage to secure the payment of money, and therefore conveyed no interest or title in the property to Haines, and hence will not support a suit to remove a cloud from title; .and also that this suit was prematurely brought because the action of Schoch v. Kane, in which the writ of at-' tachment issued, had not passed to judgment at the time it was commenced. In view of the conclusion we have reached as to the merits of the controversy, it is not necessary to examine these questions, although they are important.

1. The deed from Kane to the plaintiff had not been recorded at the time of the levy of the attachment issued in the action of Schoch v. Kane, and more than five days had elapsed since the date of its execution, and, therefore,, the attachment, if valid, will take precedence over such deed, if such attachment was made in good faith and without notice of plaintiff’s rights: Boehreinger v. Creighton, 10 Or. 42; Riddle v. Miller, 19 Or. 468 (23 Pac. 807); Meier v. Hess, 23 Or. 599 (32 Pac. 755); Dimmick v. Rosenfeld, 34 Or. 101 (55 Pac. 100); Osgood v. Osgood, 35 Or. 1 (56 Pac. 1017); Security Trust Co. v. Loewenberg, 38 Or. 159 (62 Pac. 647).

2. It is claimed, however, that the attachment is void, because the certificate of the sheriff, as filed with the county clerk, did not contain as a caption thereto the title of the cause or the names of the parties. The statute provides:

“Real property shall be attached as follows: The sheriff shall make a certificate containing the title of the cause, the names of the parties to the action, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff; and deliver the same to the county clerk of the county in which the attached real estate is situated:” B. & C. Comp. § 301.

The certificate in question admittedly contains in the body thereof all the essential requirements of the statute. It states the title of the case by giving the name of the court in which the action was pending, the names of the parties, a description of the property attached, and states that it was attached at the instance (which is equivalent to suit) of the plaintiff, and is, therefore, in our opinion, sufficient. There is no requirement in the statute that the title of the cause and the names of the parties shall be stated as a heading or caption to the certificate, as required by Section 67 in the case of a complaint. The statute provides that a complaint shall contain (1) the title of the cause, specifying the name of the court and the names of the parties plaintiff and defendant; (2) a plain'and concise statement of the facts constituting the cause of action; and (3) the relief demanded; which would seem to contemplate that these requisites should be stated in the order named, notwithstanding which it has been held that the stating of the names of the court and of the parties in the caption of a complaint is a formal, and not a jurisdictional, matter: Adams v. Kelly, 44 Or. 66 (74 Pac. 399); Smith v. Watson, 28 Iowa 218; Hill v. Thacter, 3 How. Prac. (N. Y.) 407; Van Namee v. Peoble, 9 How. Prac. (N Y.) 198. The statute regulating the attachment of real property provides what the certificate shall contain, but does not require that the essential matters shall be set out in any particular order, and it seems to us that a certificate is clearly sufficient which states such matters in the body thereof without giving to it the formality of a heading or caption.

3. When a certificate of attachment attempts to state the title of the cause and the names of the parties in a caption, it must state them correctly., and an error therein is not cured by a subsequent recital in the body of the certificate: McDowell v. Parry 45 Or. 99 (76 Pac. 1081). But where no caption is used,' it is enough if the essential facts required to be stated appear in the body of the certificate.

4. It is next contended that the burden was on the defendants- to show that the attachment was levied in good faith, and without notice or knowledge of plaintiffs interest in the property, and this seems to be the logical effect of the former decisions of this court: Rhodes v. McGarry, 19 Or. 222 (23 Pac. 971); Laurent v. Lanning, 32 Or. 11 (51 Pac. 80).

5. But here the defendants have assumed such burden by stating in their- answer facts necessary to make them purchasers in good faith, and these allegations are not denied by the reply. The want of such denial is an admission of their truth, and no proof was required. It is said that because the complaint alleges that the defendants had notice of the plaintiff’s claim to the property at the time the attachment was levied, and this averment is denied by the answer, the question of defendants’ good faith was thus made an issue in the cause, and it was not necessary for plaintiff to deny the affirmative plea of a bona fide purchaser set up by the answer. The denial of the averments of the complaint did not entitle defendants to make the defense of a bona fide purchaser. That was an affirmative matter which they were required to plead in their answer, notwithstanding the allegations of the complaint: Rhodes v. McGarry, 19 Or. 222 (23 Pac. 971). And since they were required to plead facts constituting them bona fide purchasers, it would necessarily follow that such facts must be regarded as true, unless denied by the plaintiff, and an averment of the complaint cannot be treated as such a denial.

Decided 26 February, 1907.

It follows from these views, that defendants’ attachment takes precedence over the rights acquired by the plaintiff by his deed from Kane, and the complaint must be dismissed.

Reversed.