195 P. 372 | Or. | 1921
The court below found as a matter of fact that the defendant Hickey had knowledge that the real property involved herein had been sold by the Mitchells and that the Mitchells were not the owners thereof at the time of the levy of the attachment on the eighth day of July, 1918; and, as a conclusion of law, that the knowledge of Hickey was the knowledge of his codefendant, Clem; “that, the defendant having full knowledge that the said real property was sold at the time said attachment was levied against said real property,” it necessarily followed that “the plaintiff’s deed is prior to the attachment; that plaintiff’s title to said property is free and clear of any and all liens and encumbrances by reason oit said attachment.”
“The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reasons, as far as applicable, and a new trial granted,”
—does not apply to a suit in equity. Section 405, Or. L., among other things, provides:
“The court, in rendering its decision, shall set out in writing its findings of fact upon all the material issues of fact presented by the pleadings, together with its conclusions of law thereon; * * and such findings of fact shall have the same force and effect and be equally conclusive as the verdict of a jury in an action at law, except on appeal to the Supreme Court the cause shall be tried anew without reference to such findings.”
In Cox v. Cox, 98 Or. 148 (193 Pac. 484), this court said:
“Although the cause must be tried and determined here de novo, * * yet when we find * * contradictions upon all material points, we are disposed to give much weight to the findings of the trial judge, for the reason that he saw the witnesses in action, and thus had the benefit of a kind of evidence which cannot be preserved and presented to an appellate court: Scott v. Hubbard, 67 Or. 498, 505 (136 Pac. 653); Hurlburt v. Morris, 68 Or. 259, 272 (135 Pac. 531); Tucker v. Kirkpatrick, 86 Or. 677, 679 (169 Pac. 117).”
From the proof in this case, there is strong reason for holding that the facts within the knowledge of the attorney acting for Clem, and acquired as late as forty days prior to instituting the action in the Circuit Court of Multnomah County, were communicated to his client. The presumption is that Hickey did his duty as an attorney and advised Clem in the premises.
It is well said in 2 C. J. 867:
“On the question whether a principal is chargeable with the knowledge acquired by his agent prior to the existence of his agency, the authorities differ widely, some holding that in order to charge the principal the knowledge must be acquired by the agent during the agency, and that, as a general rule, knowledge acquired prior thereto will not affect the principal. The more logical rule, however, and that which is supported by the great weight of recent authority, is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it is clearly shown that the agent, while acting for the principal in a transaction to which the information is material, has the information present in his mind, or where it was acquired so recently, or under such circumstances, that it will be presumed to have been in his mind at the time of the transaction in question; and provided the information was not obtained under such circumstances
Oregon is committed to the doctrine announced in this text. Two valuable cases enunciating the rule as stated are Saratoga Inv. Co. v. Kern, 76 Or. 243 (148 Pac. 1125), opinion by Mr. Justice Harris, and Oliver v. Grande Ronde Grain Co., 72 Or. 46 (142 Pac. 541), opinion by Mr. Justice Burnett.
This court has held that:
“An attaching creditor is placed in exactly the same position, with reference to his rights in the property attached, as a bona fide purchaser in good faith and for value”: Meier v. Hess, 23 Or. 601 (32 Pac. 755).
In Rhodes v. McGarry, 19 Or. 222 (23 Pac. 971), Mr. C. J. Thayer states:
“The respondents in this case should have alleged the facts showing that the attachment proceedings were duly commenced upon a valid debt; that the block in question was duly levied upon by the sheriff under the said proceedings; that he made a certificate containing the title of the cause, the names of the parties, a description of the real property, a statement that the same had been attached at the suit of
To the same effect is Flegel v. Koss, 47 Or. 371 (83 Pac. 847).
Under the statute of this state, Clem shall be deemed a purchaser in good faith and for a valuable consideration of the property, as against plaintiff, from the eighth day of July, 1918, the date when the land was attached: Sections 301 and 9874, Or. L. But in order for Clem to be deemed such a purchaser as against plaintiff, who had previous to the time of the attachment purchased and paid for the property, and to whom a deed therefor had been delivered, he must allege and prove every fact necessary to establish that character of his ownership as against the rights of plaintiff.
Mr. Justice Bean, speaking for this court in Barnes v. Spencer, 79 Or. 205, 214, 215 (153 Pac. 47, 50), wrote:
“Defendant maintains that the property is not subject to the prior equity of plaintiff. In order for defendant Spencer, as an attaching creditor, to be deemed a purchaser in good faith and for a valuable consideration as against the plaintiff, Grace D. Barnes," who is the owner of an outstanding equity in the property upon which execution was levied, the defendant must
The burden was upon the defendants in this case to affirmatively allege and prove every step necessary to entitle them to the rights of a purchaser in good faith for a valuable consideration. No presumption of regularity can relieve them of this burden: Rhodes v. McGarry, 19 Or. 222 (23 Pac. 971); Laurent v. Lanning, 32 Or. 11 (51 Pac. 80); Flegel v. Koss, 47 Or. 366 (83 Pac. 847); Haines v. Connell, 48 Or. 469 (87 Pac. 265, 88 Pac. 872); Metropolitan Inv. etc. Co. v. Schouweiler, 83 Or. 699 (163 Pac. 599, 164 Pac. 370).
Mr. Justice McCamant, in the case last cited, said:
“This court has been called upon several times to interpret Section 301, L. O. L., in its application to this state of facts. It is well settled that the legislature did not intend to put the attaching creditor in any better position than the holder of a subsequent deed from the defendant in the attachment action. It is accordingly held that it is necessary for the attaching creditor to allege and prove that he had no notice of the unrecorded deed when his attachment was levied."
This the defendants have not done. They have entirely failed to assume the burden that the law places upon them. There is nothing in the record that leads
The decree is affirmed. Affirmed.