Ankeny v. Blackiston

| Or. | Jan 15, 1879

By the Court,

Boise, J.:

In this suit the plaintiffs claim title through divers mesne conveyances from one Thomas Thoburn, who purchased the land in question at a sale of the same on execution on a judgment in favor of one Kalmes v. William Blackiston et al, the father of the said Charles A. Blackiston and Clara Blackiston. These conveyances are in due form and are not in that respect questioned. After obtaining a sheriff’s deed to the land, and before conveying the same, Thoburn brought a suit of partition against John Doscher and wife, William Blackiston and wife, Charles A. Blackiston, Clara Blackiston, Charles M. Carter and Sherry Boss, to partition the south half of the land claim of William Blackiston, which includes the land in question. In this suit a summons was duly issued, and we find indorsed on it the following return:

“State of Oregon, county of Multnomah: I hereby certify that I served the within summons on the within named defendants, John Doscher, Ann Doscher, William Blackiston, Clara Blackiston, Charles A. Blackiston, C. M. Carter and Sherry Ross, in Multnomah county, on the seventh day of November, A. D. 1865, by delivering to each of them a copy thereof, together with a copy of the complaint on John Doscher, prepared and certified to by the plaintiffs’ attorneys. I further certify that after due diligence I have not been able to find Ann Blackiston in this county.

“Jacob Stitzel, Sheriff.”

The defendants appear and claim interest in the land. The said Charles A. Blackiston and Clara Blackiston being minors, appeared by C. M. Carter, their guardian, and answered, and in their answer, claimed all of said south half of said land claim, except four acres thereof sold to Sherry Boss, and prayed that they be decreed to be the owners thereof, except said four acres. In this partition suit the court finds and decrees that Thomas Thoburn is the owner of one undivided half of said south half of said land claim as described in complaint, and that Clara and Charles A. Blackiston are the owners of the other undivided half thereof, except four acres sold to Sherry Boss, and ordered a petition thereof accordingly, the part set off to said Clara and Charles A. to include the four acres sold to said Boss, and the court finds further that William Blackiston, Ann Blackiston, John Doscher and Anna Doscher have no interest or estate therein. In said partition suit the land now claimed by the plaintiffs was partitioned and set off to said Thomas Thoburn, under whom the plaintiffs claim, so if the decree in that partition suit is valid and binding on the parties thereto, then the plaintiffs in this suit as against the defendants are the owners in fee of the land claimed by them, and are entitled to the relief they seek. We will now proceed to examine this decree:

1. It is claimed that Thoburn does not allege possession; he alleges that he is in constructive possession, which is sufficient, and this is supported by the facts alleged.

2. It is objected to the decree that the service is not sufficient, for the reason that no copy' of the complaint was served on Charles A. or Clara Blackiston, or their guardian. The copy of the complaint being served on John Doscher, who was declared by the court to have no interest in the land, and it not appearing that the plaintiff directed the complaint to be served on him by indorsing such direction in writing on such copy. We think this objection is very technical, and at most could be made available, if at all on appeal, when a decree has been taken by default. In this case, as the parties appeared and answered, a defect in the service would be waived, if it is determined that the appearance was such as would bind infants. In this case C. M. Carter, their general guardian, appeared for them and defended their interest, and claimed for them the whole property. And we think that under section 20, page 556, of the code he had the authority, and it was his duty to appear for his wards in that suit, and that they were as much bound by the proceedings therein as though they had be enof lawful age and appeared for themselves. This decree seems to be sufficient in form and binding on all the parties to it. It is not therefore necessary for us to inquire into the validity of the sale of the land on execution in case of Kalmes v. William Blackiston et al., for the rights of the parties have been adjudicated in the partition suit, and while that stands its determination of the rights of the parties to it must remain as there settled.

The decree of the court below will be affirmed with costs.