Mr. Justice Harris
delivered the opinion of the court.
1. Neither the decree of divorce rendered in Washington Territory nor the subsequent modification of that decree by the Superior Court of Pierce County, Washington, conferred upon Helen L. Walker any title which her husband had to land in Oregon, and consequently the quitclaim deed which Helen L. Walker made to the Victor Land Company on August 30, 1910, was worthless, for the reason that she had no interest to convey. The divorce decree which Helen L. Walker obtained in Washington did not so operate upon Section 511, L. O. L., as to convey to her any estate in the Oregon land, because that provision of the Code applies to decrees rendered in Oregon: Barrett v. Failing (C. C.), 3 Fed. 471 (6 Sawy. 473); Barrett v. Failing, 111 U. S. 523 (28 L. Ed. 505, 4 Sup. Ct. Rep. 598). While it is true that the law of Washington authorizes a court of that state to “give to either spouse any or all of the property,” still the Washington court was without power to pass to Helen [26]*26L. Walker the title to land in Oregon, because the Washington statute is “confined in its operation to the property of the parties within that state: Barrett v. Failing (C. C.), 3 Fed. 471, 477 (6 Sawy. 473, 480); 14 Cyc. 728; 23 Cyc. 1548.
2. None of the deeds which trace their origin to the tax sale transferred any title. Applying the doctrine announced in Lewis v. Blackburn, 42 Or. 114 (69 Pac. 1024), where the court was governed by the same statutes which existed when the instant tax sale was made, the tax deed given by the sheriff to W. H. Lutz was void, because it showed on its face that the assessment had been made to “ J. P. Walker and to all owners and claimants, known or unknown”: Stitt v. Stringham, 55 Or. 89, 93 (105 Pac. 252); Crane v. Oregon R. & N. Co., 66 Or. 317, 326 (133 Pac. 810); Martin v. White, 53 Or. 319, 323 (100 Pac. 290); Grotefend v. Ultz, 53 Cal. 666; Grimm v. O’Connell, 54 Cal. 522; Russ & Sons Co. v. Crichton, 117 Cal. 695 (49 Pac. 1043). The quitclaim deed executed on March 15, 1905, by Walter A. Goss to Wm. M. Robinson therefore failed to transfer any title to the lots. The deed which the Houses made to the Victor Land Company on November 18, 1899, was inoperative, not only because the tax sale was affected by a fatal error, but also for the reason that the Houses had previously transferred all their interest to Lutz.
3. The corporation acquired no interest which it can assert against Robinson when the Neeleys made a deed to the Victor Land Company on March 24, 1911, because before delivering the instrument the Neeleys fully informed the company of the contract with Robinson and the deed which had been placed in escrow for him: Musgrove v. Bonser, 5 Or. 314 (20 Am. Rep. 737); Victor Land Co. v. Drake, 63 Or. 210 (127 Pac. [27]*2727). Even though it be assumed that the tax deed was valid, nevertheless the Victor Land Company received nothing from the deed made by the Houses, because they had already conveyed to Lutz and had nothing-left to transfer to the corporation, and the company gained nothing from the deed made by the Neeleys, for the reason that they notified the company of the transaction with Robinson; and therefore, if it be assumed that the tax sale was valid, the Victor Land Company profited nothing from it, while the plaintiff acquired title when he received the deed from Goss, and, having-parted with such title by delivering the deed to the Neeleys, he nevertheless reacquired the same title when he afterward received a deed from the Neeleys.
The quitclaim deed made on March 19, 1914, to Arthur L. Pressy by Florence C. Roberts, George Rhett Walker and Anne Walker, £ias heirs'at law of Johnson S. Walker, deceased,” may he considered along with the decree which was rendered on the same day against Florence Raymond, George S. Raymond, Rhett G. Walker and Anne Walker. While there is a dissimilarity between the names, excepting that of Anne Walker, found in the deed and those appearing in the decree, still if we assume that the persons who signed the deed are all included in the decree, then it will follow that if the decree is valid, the deed conveyed nothing, but if the decree is ineffective, the deed transferred the land: Jennings v. Kiernan, 35 Or. 349 358 (55 Pac. 443, 56 Pac. 72). It sufficiently appears that the signers of the deed are the heirs at law of J. S. Walker, and for the purposes of this discussion we shall assume that they are also among the defendants mentioned in the decree. In passing, hut without deciding its effect, we call attention to the fact that the complaint upon which the decree was rendered only [28]*28mentions the heirs in the title of the cause, while their names nowhere appear in the body of the complaint, so that if the pleading were stripped of its title, it would contain no intimation of a suit against anyone except J. S. Walker, and it would only inform the reader that the plaintiff owned the land, that the defendant J. S. Walker claimed some interest without right, and that the plaintiff prays for a decree to the effect that plaintiff owns the property, and that “the defendant” has no interest whatever.
4-6. It will be recalled that J. S. Walker died on April 18,1913, and that the Victor Land Company did not commence the suit until several months afterward, the complaint having been filed on October 29, 1913. Robinson argues that the suit was a nullity because commenced against a dead man, while the company contends that the court had jurisdiction to substitute the heirs for the dead ancestor. Both litigants rely upon White v. Johnson, 27 Or. 282 (40 Pac. 511, 50 Am. St. Rep. 726), to support their variant conclusions. A. H. Johnson, the original defendant in that case, was a living person at the time of the filing of the complaint, although he died soon afterward without having been served with summons. The facts and principles involved in that action were so materially different from the situation presented by the instant suit that no statement made there is decisive here; nor is much aid to-be derived from the sequels to White v. Johnson, found in White v. Ladd, 34 Or. 422 (56 Pac. 515), and White v. Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732).
Section 38, L. O. L., made applicable to suits by Section 395, L. O. L., provides that no action shall abate by the death of a party if the cause of action survive or continue; and, in case of the death .of a party, the [29]*29court may, within one year thereafter, on motion, allow the action to be continued- against his successor in interest. Section 38 plainly contemplates the existence and pendency of an action at the time of the. death, and unless such action has already been commenced, that section has no application. It speaks of the abatement of an action as distinguished from a cause of action. If an action or proceeding has been commenced on a cause of action, then the action or proceeding may be continued if a party dies and the cause of action survives.
"When the complaint was filed it named J. S.
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Mr. Justice Harris
delivered the opinion of the court.
1. Neither the decree of divorce rendered in Washington Territory nor the subsequent modification of that decree by the Superior Court of Pierce County, Washington, conferred upon Helen L. Walker any title which her husband had to land in Oregon, and consequently the quitclaim deed which Helen L. Walker made to the Victor Land Company on August 30, 1910, was worthless, for the reason that she had no interest to convey. The divorce decree which Helen L. Walker obtained in Washington did not so operate upon Section 511, L. O. L., as to convey to her any estate in the Oregon land, because that provision of the Code applies to decrees rendered in Oregon: Barrett v. Failing (C. C.), 3 Fed. 471 (6 Sawy. 473); Barrett v. Failing, 111 U. S. 523 (28 L. Ed. 505, 4 Sup. Ct. Rep. 598). While it is true that the law of Washington authorizes a court of that state to “give to either spouse any or all of the property,” still the Washington court was without power to pass to Helen [26]*26L. Walker the title to land in Oregon, because the Washington statute is “confined in its operation to the property of the parties within that state: Barrett v. Failing (C. C.), 3 Fed. 471, 477 (6 Sawy. 473, 480); 14 Cyc. 728; 23 Cyc. 1548.
2. None of the deeds which trace their origin to the tax sale transferred any title. Applying the doctrine announced in Lewis v. Blackburn, 42 Or. 114 (69 Pac. 1024), where the court was governed by the same statutes which existed when the instant tax sale was made, the tax deed given by the sheriff to W. H. Lutz was void, because it showed on its face that the assessment had been made to “ J. P. Walker and to all owners and claimants, known or unknown”: Stitt v. Stringham, 55 Or. 89, 93 (105 Pac. 252); Crane v. Oregon R. & N. Co., 66 Or. 317, 326 (133 Pac. 810); Martin v. White, 53 Or. 319, 323 (100 Pac. 290); Grotefend v. Ultz, 53 Cal. 666; Grimm v. O’Connell, 54 Cal. 522; Russ & Sons Co. v. Crichton, 117 Cal. 695 (49 Pac. 1043). The quitclaim deed executed on March 15, 1905, by Walter A. Goss to Wm. M. Robinson therefore failed to transfer any title to the lots. The deed which the Houses made to the Victor Land Company on November 18, 1899, was inoperative, not only because the tax sale was affected by a fatal error, but also for the reason that the Houses had previously transferred all their interest to Lutz.
3. The corporation acquired no interest which it can assert against Robinson when the Neeleys made a deed to the Victor Land Company on March 24, 1911, because before delivering the instrument the Neeleys fully informed the company of the contract with Robinson and the deed which had been placed in escrow for him: Musgrove v. Bonser, 5 Or. 314 (20 Am. Rep. 737); Victor Land Co. v. Drake, 63 Or. 210 (127 Pac. [27]*2727). Even though it be assumed that the tax deed was valid, nevertheless the Victor Land Company received nothing from the deed made by the Houses, because they had already conveyed to Lutz and had nothing-left to transfer to the corporation, and the company gained nothing from the deed made by the Neeleys, for the reason that they notified the company of the transaction with Robinson; and therefore, if it be assumed that the tax sale was valid, the Victor Land Company profited nothing from it, while the plaintiff acquired title when he received the deed from Goss, and, having-parted with such title by delivering the deed to the Neeleys, he nevertheless reacquired the same title when he afterward received a deed from the Neeleys.
The quitclaim deed made on March 19, 1914, to Arthur L. Pressy by Florence C. Roberts, George Rhett Walker and Anne Walker, £ias heirs'at law of Johnson S. Walker, deceased,” may he considered along with the decree which was rendered on the same day against Florence Raymond, George S. Raymond, Rhett G. Walker and Anne Walker. While there is a dissimilarity between the names, excepting that of Anne Walker, found in the deed and those appearing in the decree, still if we assume that the persons who signed the deed are all included in the decree, then it will follow that if the decree is valid, the deed conveyed nothing, but if the decree is ineffective, the deed transferred the land: Jennings v. Kiernan, 35 Or. 349 358 (55 Pac. 443, 56 Pac. 72). It sufficiently appears that the signers of the deed are the heirs at law of J. S. Walker, and for the purposes of this discussion we shall assume that they are also among the defendants mentioned in the decree. In passing, hut without deciding its effect, we call attention to the fact that the complaint upon which the decree was rendered only [28]*28mentions the heirs in the title of the cause, while their names nowhere appear in the body of the complaint, so that if the pleading were stripped of its title, it would contain no intimation of a suit against anyone except J. S. Walker, and it would only inform the reader that the plaintiff owned the land, that the defendant J. S. Walker claimed some interest without right, and that the plaintiff prays for a decree to the effect that plaintiff owns the property, and that “the defendant” has no interest whatever.
4-6. It will be recalled that J. S. Walker died on April 18,1913, and that the Victor Land Company did not commence the suit until several months afterward, the complaint having been filed on October 29, 1913. Robinson argues that the suit was a nullity because commenced against a dead man, while the company contends that the court had jurisdiction to substitute the heirs for the dead ancestor. Both litigants rely upon White v. Johnson, 27 Or. 282 (40 Pac. 511, 50 Am. St. Rep. 726), to support their variant conclusions. A. H. Johnson, the original defendant in that case, was a living person at the time of the filing of the complaint, although he died soon afterward without having been served with summons. The facts and principles involved in that action were so materially different from the situation presented by the instant suit that no statement made there is decisive here; nor is much aid to-be derived from the sequels to White v. Johnson, found in White v. Ladd, 34 Or. 422 (56 Pac. 515), and White v. Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732).
Section 38, L. O. L., made applicable to suits by Section 395, L. O. L., provides that no action shall abate by the death of a party if the cause of action survive or continue; and, in case of the death .of a party, the [29]*29court may, within one year thereafter, on motion, allow the action to be continued- against his successor in interest. Section 38 plainly contemplates the existence and pendency of an action at the time of the. death, and unless such action has already been commenced, that section has no application. It speaks of the abatement of an action as distinguished from a cause of action. If an action or proceeding has been commenced on a cause of action, then the action or proceeding may be continued if a party dies and the cause of action survives.
"When the complaint was filed it named J. S. "Walker as the sole defendant, but he had died several months before the filing of the complaint, and consequently there was in reality no defendant at all. The very existence of a cause of suit implies that there is some competent person to be sued, and for that reason a suit cannot be maintained if a defendant is lacking: 1 C. J., p. 982, § 84; Fruitt v. Anderson, 12 Ill. App. 421; In re Hurst Home Ins. Co., 23 Ky. Law Rep. 940 (64 S. W. 512); Green v. McMurtry, 20 Kan. 189. There was no existing defendant at the time the complaint was filed, and therefore there was no action to abate or to continue or to which Section 38 could be applied: Crowdus Admr. v. Harrison, 9 Ky. Law Rep. 58. A judgment against J. S. Walker would have been a nullity (Hurst v. Fisher, 1 Watts & S. (Pa.) 438; Humphreys v. Irvine, 14 Miss. (6 Smedes & M.) 205; Service Lumber Co. v. Sumpter Valley Ry. Co., post, p. 32 (152 Pac. 262, 265); 1 C. J., p. 136), and the complaint upon which judgment was based would be as much of a nullity as the judgment itself. Since there was no action, there was nothing to amend or continue: Brooks v. Boston & Northern Street Ry., 211 Mass. 277 (97 N. E. 760); Ex parte Collins, 49 Ala. 69; Proprietors [30]*30of Mexican Mill v. Yellow Jacket Silver M. Co., 4 Nev. 40 (97 Am. Dec. 510). When the complaint was filed the Victor Land Company had a cause of suit against the heirs, and not against the ancestor, because the death of the latter operated to transfer to the heirs any interest which J. S. Walker may have had in the land' at the time of his death. It is true that thife complaint recited a name as a defendant, but that name only signified a memory, because it had ceased to represent a living person. It was impossible for the Victor Land Company to sue a memory or to litigate with a corpse. No suit was pending because there was no defendant. There was nothing to amend or to build upon. The attempted proceeding against the ancestor was a nullity, and the decree against the heirs was no better. The decree against the heirs not being valid, it necessarily follows that the Victor Land Company fails in this suit, and the plaintiff prevails. The decree of the Circuit Court is reversed, and the plaintiff is granted the relief prayed for in the complaint. Reversed. Decree Rendered.
Mr. Chiee Justice Moore, Mr. Justice Bean and Mr. Justice McBride concur.