Malagamba v. McLean

173 P. 1175, 89 Or. 307, 1918 Ore. LEXIS 125

• Court: Oregon Supreme Court
• Decided: July 16, 1918
• Status: Published

Opinion

BENSON, J. —

1-3. This suit is based upon the theory that the real property of an estate is not subject to execution upon a judgment against the heir, until after final distribution of the estate; hut such a conclusion is clearly erroneous. In the case of Clark v. Bundy, 29 Or. 190 (44 Pac. 282), Mr. Justice "Wolverton presents an interesting discussion of the relation of the administrator to the real property of a decedent, from which it appears that in the absence of a showing that there is some necessity for his interference, for some purpose of administration recognized by statute, he has nothing to do with it, and it is the absolute property of the heir. In the case at bar there is no hint of any condition of affairs in the estate of George McLean, deceased, which would justify the administratrix in exercising any control over the real property, and so far as the record discloses, the lien of plaintiff’s judgment attached to Arch McLean’s interest in the land at the time when it was docketed. He might at any time thereafter have had an execution levied thereon, and there is nothing in the complaint to show that its sale would not be ample to satisfy the decree.

“A cardinal rule of equity jurisprudence particularly applicable to this class of cases is that a court of equity will not aid a complainant where there is an adequate remedy at law”: 12 Cyc. 5; Dawson v. Sims, 14 Or. 561 (13 Pac. 506).

The plaintiff has not made a showing that his legal remedy is inadequate, and the demurrer was properly sustained. The decree of the lower court is affirmed.

Affirmed.