Lees v. Hobson

176 P. 196, 90 Or. 248, 1918 Ore. LEXIS 202

Opinion

BENSON, J.

1. It is so well established as to call for no citation of authorities, that while an agreement "between the owner of the lot and the tenant, that the building is to be-regarded as personalty, is valid and binding, it is equally true that an innocent purchaser, without notice or knowledge of such agreement, cannot be bound thereby. In Landigan v. Mayer, 32 Or. 245, (51 Pac. 649, 67 Am. St. Rep. 521), we find this language:

“A mortgage is pro tanto a purchase, and the bona » fide mortgagee or assignee of the mortgage, without notice of a prior claim, is entitled to the same protection as a bona fide grantee without notice.”

2. It is also true that a replevin action, being primarily a possessory action, cannot be sustained for the purpose of trying the light of property: 34 Oyc. 1354; Taggart v. Hart, Brayt. (Vt.) 215.

The judgment in the former case, to which neither the plaintiff nor her assignor were parties, merely determined that as between the plaintiff and defendant therein, the plaintiff was entitled to the immediate possession of the building, or, if such possession could not be had, to its value as determined by the jury. This plaintiff’s paramount right was not in question, and could not be adjudicated. It follows that the trial court did not err in restraining defendants from removing the building and thereby impairing plaintiff’s security.

3. That portion of the decree which enjoins defendants from enforcing the judgment against the sureties on the supersedeas bond is in a different situation. The sureties are made defendants, and, so far as disclosed by the record, have made no appearance in the case, and have not asked for any relief. Upon this subject, they are the parties in interest, and the plaintiff can have no concern with the effect of the judgment upon them: Section 392, L. O. L.

The decree of tbe lower court will be modified by eliminating tbe restraining order so far as it relates to proceedings against tbe sureties upon tbe appeal bond, and in other respects it is affirmed.

Modified and Affirmed.

Harris, J., absent.