Moore v. Willamette Transportation & Locks Co.

7 Or. 359

• Court: Oregon Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

By the Court,

Boise, J.:

It seems, from the statement of the case above set forth, that the appellant is the owner of the land in dispute as claimed, unless he has been divested thereof by legal proceedings, which have been.prosecuted againstthe estate of his father, Robert Moore, and against himself, which proceedings are set forth in the foregoing statement, and the determination of the rights of the parties in this case must depend on the construction to be given to these proceedings. It is also claimed that though these legal proceedings are correct, that still the deed from the Willamette Nalls and Locks Company to the defendant is not sufficient in form to convey the title. We will first proceed to consider the proceedings had in the probate court, which are set out in the record:

The first paper to be considered is the petition of D. J. Schnebley and others, requesting the probate court of Clackamas county to admit to probate the will of Robert Moore, the father of the appellant. This paper is marked Exhibit N, and is as follows:

“We, the undersigned, having been appointed executors of the last will and testament of Robert Moore, deceased, request that with the view of carrying into effect said will, letters testamentary be granted by the honorable court in accordance with the provisions of the law.

(Signed) “D. J. Schnebley,

“R. C. Crawford,

“J. T. Apperson.

“ September 4, 1857.

This paper is not marked filed, and this is made an objection to it. And it is also objected to as not showing that the court had jurisdiction of the subject-matter of the proving of this will.

As to the first objection that it has not written on it the word filed by the clerk, we think that as the paper is found in the possession of the court, among the papers of the case, and is a paper on which the court apparently acted, these facts prove prima facie that the paper was properly presented to the court, and was in fact filed, though not so marked.

We will next consider the other objection to this paper; that it does not state facts sufficient to give the court jurisdiction (at that time the probate court had jurisdiction) of the matter of the proving of wills; and all that was necessary in a petition was to show to the court that a case of that nature existed, and required its action.

With this petition, the will sought to be proved, seems, from the record, to have been presented, and also the affidavit of Charles Pope, junior, and James K. Kelley, the subscribing witnesses thereto. These accompanying documents showed that said Kobert Moore was an inhabitant of the county, and that he was dead.

The laws of the territory of Oregon, then in force, Stat. 1855, p. 385, secs. 15, 16, 17, provided as follows:

Sec. 15. “ The probate court shall take proof of wills.”

Sec. 16. “ If the testator have a mansion-house — a known place of abode — in any county, his will shall be there proved.”

Sec. 17. “When any will is exhibited to be proven, the county court may immediately receive the proof, and grant a certificate of probate; or if such will be rejected, grant a certificate of rejection.”

No particular form of petition was then necessary to invoke the action of the court to the probate of a will. All that was necessary was to exhibit the will for probate with such proof as showed that the testator was deceased, and that he had been, at the time of his death, a resident of the county. All of these things seem to have been shown to the court at the time this will was presented.

We think, therefore, that the probate court had jurisdiction, and that exhibit F was properly admitted. After this probate of the will on August 4, 1863, the appellant filed a petition, which is marked exhibit G, showing to the said probate court that two of the executors of said will, D. J. Schnebley and it. C. Crawford, had removed from the state of Oregon, and that the third, J. T. Apperson, had resigned; and prayed that the letters of said Crawford and Schnebley be revoked, and that a suitable person be appointed administrator de bonis non of said- estate. The prayer of which petition was allowed, and George A. Pease was appointed administrator de bonis non.

It is now claimed by the appellant that this petition did not give the court jurisdiction to act in the premises.- This last named proceeding was enacted while the probate court was acting under our present code (p. 319, secs. 1062, 1063), where it is provided that an application to remove an executor shall be by petition, and upon notice to the executor or administrator, unless the cause for removal be that the executor has removed from the state; in which case no notice is required. No particular form is required for such petition, and all that is necessary to be set out in the petition is to call the attention of the court to the matter complained of, and that is done in this ease, and the petition is sufficient in form and substance. But it is claimed that this petition was not sworn to and was therefore void.

We do not think that the affidavit of a party to the truth of a petition or pleading is requisite to give the court jurisdiction. If no objection is taken to a petition or pleading for want of verification, then this defect is waived. Section 81 of the code provides'that “A motion to strike out a pleading for want of verification or subscription * * * shall be made within the time for answering such pleading;” which plainly indicates that when such objection is not made the pleading will be allowed to stand notwithstanding such defect.

These pleadings being found to be sufficient, it is not contended but what the sale of the property by Geo. A. Pease, administrator to James M. Moore, was legal and in due form to convey the property thereby to the appellant, who purchased at the sale.

We now come to consider the proceedings by which the respondent claims it obtained this title from the appellant, Moore. This is first through a judgment against him and a sale by the sheriff of the premises to satisfy such judgment, at which sale D. P. Thompson, J. K. Kelley and W. P. Doland were purchasers. The sheriff’s deed to these parties was offered in evidence to complete this chain of title to the respondents through mesne conveyances, and was objected to on the ground that the said sheriff’s deed was made by Arthur Warner, sheriff of Clackamas county, who was not the sheriff who made the sale, but his successor. The said former sheriff, John Myers, having gone out of office before the deed was made.

Appellants claim that under our statute, p. 303, section 986, the former sheriff, who made the sale was the only officer who could make the deed.

This section of the statute is as follows: “The former sheriff shall return all process, whether before or after judgment or decree, which he has fully executed, and shall complete the execution of all final process which he has. begun to execute.” Literally construed this section directs the former sheriff to return all process, the execution of which is complete, and which he has still retained in his hands when his term expires, and in case of final process do all official acts necessary to be done before the same can be returned executed. In case of a sale of real property the return is made when the sheriff has made the sale and received the money to apply in satisfaction of the execution. If it be sufficient, he returns it satisfied and states his doings thereon in his return, but his certificate of return does not embrace the confirmation of sale and subsequent proceedings which are necessary to fully complete the transfer of the property sold. When he has made his return he has parted with the process and has no further control over it. On this return the plaintiff in the execution may move to have the sale confirmed by an order of the court. If the court orders a resale, a new execution must issue which will recite such order, and this new execution would be directed to the sheriff in office at the time it is issued. We can see no good reason why the proceedings concerning redemption and making the sheriff’s deed should not be conducted before and performed by the sheriff who is in office at the time.

Such a construction of the statute will establish a rule most convenient to the parties; for the sheriff in office can always be found, as his official duties require his presence in the county, while the former sheriff may die, be disqualified or remove from the county, and render proceedings before him .impracticable. We think this statute was not intended to extend the office of the former sheriff beyond the time when he returned the process into court, and that then he ceased to have control over it. The appellant’s counsel have referred to the case of Anthony v. Wessil, 9 Cal., as supporting this view of the case, and Drum v. Boring, 8 Id., and also to the cases of Allen v. Trimble, 4 Bibb, 21, and Tuttle v. Jackson, 6 Wendell, 224. The California cases are on a statute like ours in many of its provisions, but it does not contain section 293 of our statute on the subject of confirmation of the sale of real property, or any section with like provisions. By the statute of California, the proceedings on the sale remain in the hands of the sheriff until the making of the deed, and are not returned to the court for the purpose of its action on the regularity of the sale, and the ordering a resale in case of irregularity, and therefore the authority is not in point under our statute.

In the other cases cited by counsel, the decisions are placed on the doctrine of the common law where executions were only levied on personal property of which the officer took possession and in which he had a special property by virtue of his levy. The same rule was extended to real estate, and the officer having possession by virtue of the levy on the property must deliver it. to complete the sale, and the giving the deed was necessary to convey the title. But under our statute the possession passes to the purchaser by virtue of the certificate, and an order of the court confirming the sale is a necessary step in conveying title under the sale. This order is to be had on the motion of the plaintiff in the execution, and is in no way under the control of the sheriff. And there is no good reason in theory for holding that the sheriff has not parted with all the interest he acquired in the property by virtue of the levy when he executed his certificate of sale to the purchasers at the execution sale. On a careful examination of the authorities we find that the rule has been adopted in many of the states that the successor of the sheriff — that is, the sheriff who is in office when the deed is made — is the proper person to execute the deed. In Jackson v. Woodward, 29 Maine, 266, it is laid down as a general rule that seisin must be shown in the purchasers, by the return of the execution, and it is on this question that the court is to pass when the order is made confirming the sale. And the title is complete inequity in the purchasers from the time he receives the certificate of sale, if the return is regular, and can only be defeated by a redemption, and the deed when executed relates back to the time of the sale. The rule that the successor to the sheriff who made the sale may execute the sheriff’s deed is recognized in Fretwell v. Morrow, 7 Geo. 264; Prescott v. Evarts, 4 Wis. 314, and in Conger v. Converse, 9 Iowa 554. In the last case the court, in deciding the question, say: “That the fact that the certificate and deed were signed by different persons was no ground for excluding the certificate. The sheriff in office at the time the certificate is produced and the deed demanded, is the proper officer to make the deed, and not the one who made the sale and whose term of office has expired. The term sheriff applies to the office and not to the person.” We think therefore that the sheriff’s deed was properly ad.mitted.

It is also claimed by the appellant that the deed from the Willamette Falls Canal and Locks Company to the Willamette Transportation and Locks Company is not sufficient inform to convey the title to this property to the respondent. This deed recites that at a meeting of the stockholders of the Willamette Falls Canal and Locks Company, “ called for the purpose, among other things, of authorizing the disposition of its property,” the following resolution was duly passed : “Resolved, That Bernard Goldsmith, the president of the Willamette Falls Canal and Locks Company, be and hereby is authorized and directed to sell to the Willamette Transportation and Locks Company all the property, both real and personal, of said Willamette Falls Canal and Locks Company upon such terms and conditions as he may think expedient; and said Bernard Goldsmith is further authorized and directed to make, execute and deliver all deeds and writings necessary and convenient for the due and proper conveyance and transfer of said property. * *. * ”

This recital is sufficient in form and substance to vest Goldsmith with authority to transfer the property, provided the stockholders could delegate such power to him. The appellant claims that power to sell the property was in the directors, and not in the stockholders. The proper solution of this question must depend on the construction of sections 9 and 19 of the act of the legislature regulating the formation of private corporations. The statute (p. 524, sec. 9) provides that ‘ ‘ From the first meeting of the directors, the powers vested in the corporation are exercised by them or by their officers or agents under their direction, except as otherwise specially provided in this chapter.”

Section 19 provides that the stockholders, at a meeting called for that purpose, “may authorize the dissolution of such corporation, and the settling of its business, and disposing of its property, and dividing its capital stock in any manner it may see proper. The resolution of the stockholders above quoted directs the disposition of all its property, and we must infer from its terms that it was a part of proceedings dissolving the corporation and providing for settling its business, and, as the statute provides, that the stockholders by vote shall direct the winding up of its affairs in any manner it may see proper. The stockholders, and not the directors, have the power to direct the manner in which its property shall be disposed of; and there is no conflict in the provisions of these sections, for the directors exercise the powers of the corporation in cases where tbe law does not otherwise provide. Section 19 has provided that the stockholders by their vote shall control the final disposition of the property of the corporation. It is also claimed by appellant that this deed is not properly executed. The form of the attestation is:

“In witness whereof the said party of the first part (the Willamette Falls Canal and Locks Co.) has caused its corporate seal to be hereto attached and affixed, and these presents to be subscribed by the president and secretary of said party of the first part, this eighth day of March, 1876.

“B. Goldsmith. [seal.]

“President of the Willamette Falls Canal and Locks Co.

“John Merrick. [seal.]

“Secretary of the Willamette Falls Canal and Locks Co'.

Witnesses, [seal oe corporation.]

Though the usual form of executing a conveyance of land by a corporation is to sign the name of the corporation by the president and secretary, and affixing the seal of the corporation, yet the form of execution here used is often adopted and has often been held sufficient. (Angelí and Ames on Corp., sec. 225, and authorities there stated.) We think the deed was properly admitted. This view of this part of the case renders it unnecessary to inquire into the proceeding condemning the land for the use of the corporation to build thereon their canal and locks, which was relied on in the circuit court by the respondent as a defense. We will not, therefore, examine the various objections which have been made by the appellant to this proceeding, for we think the judgment of the circuit court should be affirmed for the reasons stated above.