Willamette Real Estate Co. v. Hendrix

42 P. 514, 28 Or. 485, 1895 Ore. LEXIS 123

Opinion

Opinion by

Mr. Justice Moore.

1. It is contended by plaintiff that the county-court, being a court of record, and invested with civil jurisdiction to be defined, limited and regulated by law, not exceeding the amount of five hundred dollars, (Constitution of Oregon, Article VII, §§ 1, 12,) was further invested by an act of the legislative assembly, approved June fourth, eighteen hundred and fifty-nine, (Laws, 1859, p. 9,) with authority to enter on the defendant’s confession a judgment which should not be subject to review in a collateral suit. Conceding without deciding that the county court had such authority, we will examine the foundation of plaintiff’s alleged title, namely, the judgment, execution, sale, and deed: McRae v. Daviner, 8 Or. 63; Faull v. Cooke, 19 Or. 455 (20 Am. St. Rep. 836, 26 Pac. 662); Cloud v. El Dorado County, 12 Cal. 128 (73 Am. Dec. 526); Clark v. Lockwood, 21 Cal. 220; Blood v. Light, 38 Cal. 649 (99 Am. Dec. 441). The sheriff’s return shows that the real property was sold upon an execution issued out of the circuit court on a judgment by confession rendered in the county court. Every court has the inherent right to control its own process, and, unless authorized by law, no other court can interfere with such right: Harris v. Cornell, 80 Ill. . There being no statutory provision authorizing the clerk of the circuit court to issue an execution out of that court upon a judgment rendered in the county court, the writ so issued must be regarded as an absolute nullity:' 1 Freeman on Executions, § 15; Chandler v. Colcord, 1 Okl. 260 (32 Pac. 330).

2. The defendant insists that, the Gilmore judgment having been rendered in the circuit court on a service of summons by publication, no jurisdiction of the person was obtained, and, the record introduced in evidence failing to show that the land had been attached so as to render a judgment given in the action quasi in rem, no jurisdiction of the subject matter was acquired, and hence the judgment is void; while the plaintiff contends that the court rendering the judgment being one of general jurisdiction, and the record being silent, it must be presumed from the judgment that the court complied with every statutory requirement, and thereby obtained jurisdiction. The sheriff’s return indorsed on the execution issued on this judgment discloses that the property was levied upon by virtue thereof, and advertised for sale; but it does not show that any sale was made in obedience to its commands. “While,” says Baldwin, J., in Cloud v. El Dorado County, 12 Cal. 128, (73 Am. Dec. 526,) “it is undoubtedly the duty of the sheriff to make this return, and while it is important as evidence of a permanent and authentic character that he should do so, the title of the purchaser does not depend upon his performance of this duty. The purchaser has no control over the conduct of the officer in this respect; nor is it just or reasonable that he should be responsible for the remissness or negligence of the sheriff in the discharge of such an office.” This doctrine was affirmed in Clark v. Lockwood, 21 Cal. 220; Blood v. Light, 38 Cal. 649, (99 Am. Dec. 441,) and lastly in Frink v. Roe, 70 Cal. 296 (11 Pac. 820), If the necessary preceding steps have all been properly taken, a sheriff’s deed is evidence of title in the grantee, and the recitals therein are prima fade evidence of the facts recited: Dolph v. Barney, 5 Or. 191. “A sale,” says Mr. Freeman in his work on Executions, volume 2, § 325, “may be made under several writs. Some of these writs may be valid, and the others void. If either of the writs under which a sale is made is valid, the officer has the power to sell, and consequently the power to convey. If in his deed- he recites several writs, some of which are valid and some void, the recital of the void writs may be treated as surplusage, and the deed, being supported by the valid writ, and the power to sell and convey thereby conferred, is as effective as if all the writs were unobjectionable.”

3. The sheriff’s deed being prima fade evidence of title in plaintiff’s grantors, the question is presented whether the judgment rendered in the case of Gilmore v. Hendrix, upon whieh the deed must rest for its foundation, is valid, or at least not vulnerable to collateral attack. The judgment in this case is as follows: “S. M. Gilmore •versus H. H. Hendrix. And now on this day comes the plaintiff, by M. McBride, his attorney, and the said plaintiff files affidavit of publication of notice of the pendency of this suit, to wit (here insert), in accordance with the order of this court made at the May term thereof, eighteen hundred and sixty-one; and said defendant, being called, comes not, but makes default. It is therefore ordered by the court that the default of the defendant be entered. And it appearing to the court that this suit is founded upon a promissory note for the payment of money only, and that there is now due and owing from the said defendant thereon to the said plaintiff the sum of eight hundred and ninety dollars and fifty-three cents; it is therefore considered and adjudged by the court that the plaintiff have and recover off and from said defendant the sum of eight hundred and ninety dollars and fifty-three cents, together with his costs to be taxed, and that he have execution therefor.” It appears from this record that the defendant was a nonresident of the state, and, not appearing or answering, the court acquired no jurisdiction to render a judgment in personam on the service of a summons by publication; and hence the authority to render the judgment, so as to become quasi in rein, must depend on the court’s having obtained jurisdiction of the defendant’s property by some legal process, before any order could be made authorizing the service of a summons by publication: Pennoyer v. Neff, 95 U. S. 714; Goodale v. Coffee, 24 Or. 346 (33 Pac. 990). The statute in force at the time of the rendition of the judgment contained ample provisions for and prescribed the mode of attaching the defendant’s property to satisfy any judgment which might be rendered against it: Statute 1855, § 119, et seq. It will be observed that the judgment contains no recital of the defendant’s property being attached, and no other evidence thereof having been introduced, can it be presumed that the court obtained jurisdiction of the subject matter? “The jurisdiction,” says Mr. Freeman in his work on Judgments, volume 1, § 123, “exercised by courts of record is, in many cases, dependent upon special statutes conferring an authority in derogation of the common law, and specifying the manner in which such authority shall be employed. The decided preponderance of adjudged cases upon the subject establishes the rule that judgments arising from the exercise of this jurisdiction are to be regarded in no other light, and supported by no other presumptions, than judgments pronounced in courts not of record. The particular state of facts necessary to confer jurisdiction will not be presumed; and if such facts do not appear, the judgment will be treated as void.” It is needless to cite further authority in support of this proposition, for the rule has been already settled in this court that whenever a mode of acquiring jurisdiction, not in accordance with the general course of the common law, has been prescribed by statutes, that mode must be strictly followed, and the authority for rendering the judgment in pursuance thereof must affirmatively appear on the face of the record: Northcut v. Lemery, 8 Or. 316; Odell v. Campbell, 9 Or. 298. Prom the failure to prove that the defendant’s property had been attached it follows that jurisdiction of the subject matter was not acquired, and the judgment rendered in the case of Gilmore v. Hendrix is consequently void.

4. The deed recites that the premises were sold on execution issued from the county court, and this, under the authority heretofore cited, is prima faeie evidence of the fact, but such recital could not prevail here, in the face of a copy of the execution in evidence from which it appears that the writ purports to have been issued from the circuit court. Nor could the court’s approval of the sheriff's deed cure the infirmities of the judgment, for a confirmation of an execution sale of real property is a determination of the regularity of the proceedings under the writ only, and supplies all defects except those founded in a want of jurisdiction: Rorer on Judicial Sales, § 123; Leinenweber v. Brown, 24 Or. 548 (34 Pac. 475).

5. It is contended that the plaintiff and its predecessors in interest had been in the adverse possession of the premises in controversy, under a claim of ownership, for a period of more than ten years immediately preceding the commencement of this suit, and that, the statute of limitations having run in its favor, the defendant’s right of entry was barred. The evidence shows that the one hundred and forty acre tract was inclosed' at the time the sheriff’s deed was executed, October twelfth, eighteen hundred and sixtyihree, and that a portion of the land was cultivated from that time until the plaintiff received its deed, December fifth, eighteen hundred and seventy-two, and removed the fence from that part of the tract embraced in the townsite of Cornelius; that from eighteen hundred, and seventy-two to the commencement of this suit the premises in controversy remained open and uninclosed, during which time there was no visible evidence of any claim of ownership on the part of any one; but that the plaintiff appointed persons living at Cornelius to act as its agent, paid the taxes annually assessed on the property most of the time, and sold and conveyed other lots to persons who in some instances erected buildings thereon. From this evidence it is clear that no adverse title had been acquired by plaintiff’s predecessors at the time it received its deed. “The legal title,” says Thayer, J., in Swift v. Mulkey, 14 Or. 64 (12 Pac. 76), “draws after it the possession, and a right of entry is not barred, unless there has been a disseisin followed by an actual, open, notorious, and continuous adverse possession for the period of ten years next prior to the commencement of the action. To be an adverse possession it must be an occupancy under a claim of ownership, though it need not be under color of title.” Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world, and this intent is to be inferred from proof of the occupancy: Rowland v. Williams, 23 Or. 515 (32 Pac. 402). It must be admitted that the plaintiff claimed title to the loeus in quo; but, never having occupied any portion of the premises, its claim of ownership, in the absence of occupancy, can never become the foundation of an adverse right. In Curtis v. La Grande Water Company, 20 Or. 34 (10 L. R. A. 484, 25 Pac. 373), Lord, J., in commenting upon the character of such occupancy, says: “To effect that result, the possession taken must be open, hostile, and continuous; ‘he must unfurl his flag on the land, and keep ft flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.”’ Tested by this rule there is nothing to show that the plaintiff ever did anything on the land to notify the defendant that it had invaded the premises in dispute.

6. True, the deed of Halsey and wife described the property as lots and blocks in the town of Cornelius, but adverse possession of it cannot be predicated upon the occupancy of some lot therein by a grantee of the plaintiff. When the premises consist of several known lots or tracts, and are conveyed by the same instrument, each is distinct, and an entry and occupancy of one under color of title is not constructively an occupancy of all: Wilson v. McEwan, 7 Or. 87; Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057); Stewart v. Harris, 9 Humph. 714; Bailey v. Carleton, 12 N. H. 9 (37 Am. Dec. 190); Denham v. Holeman, 26 Ga. 182 (71 Am. Dec. 198); Carson v. Burnett, 1 Div. and Bat. L. 546 (30 Am. Dec. 143). Plaintiff not having acquired any title by its deed, and there being no evidence of its occupancy of the premises, it follows that the decree must be affirmed. Affirmed.