210 P. 711 | Or. | 1922
Plaintiff’s first contention is that the court had no jurisdiction to give judgment against him in either of said actions for the reason that he was insane at the time and no guardian had been appointed or appeared for him in either of said actions. This contention cannot be sustained. In both of these actions the relief sought was the recovery of a money judgment only and service of the summons and complaint was made upon the plaintiff herein in person in the county where the actions had been commenced. The court, because of such personal service upon the defendant, had full and complete jurisdiction to hear and determine said actions. If plaintiff, the defendant in said actions, had been theretofore judicially declared to be of unsound mind or incapable of conducting his own affairs, and a guardian had been appointed for him, then the court, because of the provisions of subdivision 4, Section 55, Or. L., could not have acquired jurisdiction over his person by service of summons and complaint on him alone, as in such case the statute requires that “the summons shall be served by delivering a copy thereof, together with a copy of the complaint * * to such guardian and to the defendant personally.” In this state there is no statute except the above that prescribes the manner in which service of summons and complaint shall be made upon insane persons, and except where a guardian for an insane
However, when an insane or idiotic person is a party to any action, suit or proceeding in tbe courts of this state, Section 33 — 1, Or. L., provides that if' be has no guardian or, in tbe opinion of tbe court, bis guardian is an improper or incompetent person, tbe court shall appoint some suitable person to act as guardian ad litem. But this latter statute has no reference to tbe manner in which service shall be made upon an insane person nor does it attempt to limit tbe court’s jurisdiction over tbe person of such insane party. It only prescribes tbe procedure to be followed upon tbe trial of tbe cause.
Tbe judgments complained of were default judgments and it was not made to appear to tbe court that the party defendant to said actions was insane, but even if it had been disclosed to tbe court that tbe defendant was an insane party and tbe court bad failed or refused to appoint a guardian ad litem to defend for him, this would not have deprived tbe court of its jurisdiction over bis person or over tbe subject matter of tbe action and such failure would have been a mere irregularity rendering tbe judgment voidable but not void. Plaintiff’s remedy in such a case would be to appeal or to commence a suit to set aside and vacate tbe judgments. If he had pursued either of these remedies, upon a sufficient
“As a general rule,” said this court in Harper v. Harding, 3 Or. 361, “a judgment or decree of a court having jurisdiction cannot be attacked collaterally; and when a decree is attacked for want of jurisdiction, it is not a sufficient showing of such lack, to declare that the defendant was insane at the time.” See also Haines v. West, 101 Tex. 226 (105 S. W. 1118, 130 Am. St. Rep. 839); King v. Robinson, 33 Me. 114 (54 Am. Dec. 614); Maloney v. Dewey, 127 Ill. 395 (19 N. E. 848, 11 Am. St. Rep. 131); Johnson v. Pomeroy, 31 Ohio St. 247; 22 Cyc. 1245; 14 R. C. L. 615. Again, in Tustin v. Gaunt, 4 Or. 309, the court quoted with approval from 2 How. (U. S.) 341 (11 L. Ed. 283), as follows: “A court which is competent, by its constitution, to decide on its own jurisdiction, and to. exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, not to be impugned by averment, or proof to the
In Morrill v. Morrill, 20 Or. 96, 103 (25 Pac. 362, 23 Am. St. Rep. 95, 11 L. R. A. 155), this court said: “It is said to be an axiom of the law, that when a court has jurisdiction of the subject matter and the parties, its judgments cannot be impeached collaterally for errors of law or irregularity in practice.” In that case the court defined a collateral attack as follows: “A collateral attack on a judgment is any proceeding which "is not instituted for the express purpose of annulling, correcting or modifying sucb decree: 12 Am. & Eng. Ency. of Law, 177.”
We have proceeded thus far upon the theory that the plaintiff herein, the defendant in said actions, was insane, but after a careful examination of the record we find that there is no evidence whatever tending to show that he was insane. The only allegation that plaintiff was insane is contained in the
Plaintiff contends that because of certain alleged irregularities in the proceedings of the attachment had in the action brought by Allen & Lewis, a corporation, against the plaintiff herein, in which action the real property in question was sold under execution, the sale thereunder was invalid. After the property was sold under execution and the sale thereof was confirmed by order of the court, any irregularity in the attachment at the commencement of the action could not affect the validity of the subsequent sale of the property under execution so far as the rights of the plaintiff in the property are concerned. The Code provides: “An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons, in any other action, suit or proceeding whatever.” Section 241, subd. 4, Or. L. So even if this had been a direct attack the statute would be conclusive upon this question.
Plaintiff also contends that because the return of the sheriff of the sales under execution was filed and orders confirming the sales were made on the same day, the orders of confirmation are each invalid. If, instead of being a mere collateral attack, this was a direct proceeding to vacate and set aside these orders and had been seasonably made, plain
As said in McRae v. Daviner, 8 Or. 63, which was a direct and not a collateral attack upon a sheriff’s sale under execution: “Appellant had three remedies: the right to appear and file objections to the order of confirmation of the sale, the right of appeal, and the right of redemption, all of which he has neglected and .failed to avail himself of.”
A written stipulation was filed in the lower court in which the parties to this action stipulated that on ■the twenty-eighth day of. July, 1916, the plaintiff was the owner in fee of the real property described in the complaint, and that if the plaintiff has lost the title thereto, it is by virtue of the execution sales mentioned in defendant’s answer, or one of them. It was also stipulated that some time prior to July 29, 1916, defendant’s intestate went into possession of the property as a tenant of the plaintiff and remained in possession thereof until his death; that no definite term of lease was ever agreed upon, but that the rent was paid to plaintiff monthly up to and
It appears from the evidence that Allen & Lewis, a corporation, on November 27, 1915, commenced an action against the plaintiff herein in the Circuit Court for Lincoln County, and later recovered judgment in said action; that an execution was issued and the property sold to satisfy said judgment on July 29, 1916; that Allen & Lewis were the purchasers at said sale. It also appears that on February 10, 1917, Allen & Lewis quitclaimed said property to defendant’s intestate, and on December 29, 1918, assigned to him the sheriff’s certificate of sale, and that a sheriff’s deed to said premises was delivered to defendant’s intestate on December 31, 1918.
Plaintiff contends that as defendant’s intestate went into possession of the property as a tenant of the plaintiff and remained in .possession until the time of his death and failed to surrender possession thereof to the plaintiff, defendant is estopped to deny plaintiff’s title notwithstanding that the property was sold under execution to Allen & Lewis, and that the title thereto has passed by mesne conveyances from Allen & Lewis to defendant’s intestate. In support of his contention, plaintiff cites subdivision 5, Section 798, Or. L., which reads as follows: “A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation.”
Under the statute the tenant is precluded from denying the title of the landlord at the time the relation of landlord and tenant commenced. But he is not estopped, nor does the statute preclude him from
In McAusland v. Pundt, 1 Neb. 211 (93 Am. Dec. 358), the court said: “It is well settled that a tenant is not estopped from showing that the interest of the lessor has passed from him by his own conveyance or by sale under judgment against him: Bingham on Real Estate, 210; the tenant himself may become purchaser at such judicial sale: Despard v. Walbridge, 15 N. Y. 377.” In»the same case, the court, in considering the rule of estoppel, said: “This rule, however, must be confined to the title of the landlord or person contracting to sell, had at the time such possession is given. Subsequently to making the lease or contract of sale, the lessor or vendor might sell the premises. In that case, I see nothing to forbid the tenant or vendee in possession from recognizing or treating with him, to whom the vendor or landlord had sold. "What the vendor could himself voluntarily do, the law can as effectually accomplish in cases falling within its authority.”
“It is well settled,” says Mr. Bigelow, “that a tenant in possession cannot, even after the expiration of his lease, deny his landlord’s title without (1) actually and openly surrendering possession to him, or (2) being evicted by title paramount, or attorning thereto, or (3) at least giving notice to his landlord that he shall claim under another and a valid title. ’ ’
“But the lessor may transfer his reversion to another, thereby giving to such other the right to the rent as well as to the possession, and the lessee may show, as against a claim for rent or possession by
“The landlord may not have any interest in the title to the demised premises, but whether he has or not cannot be questioned by the tenant before the expiration of his lease, and whilst in possession under it, unless based upon some distinct and independent claim to the land. Bowdish v. Dubuque, 38 Iowa, 341.” Beck v. Minnesota & Western Grain Co., 131 Iowa, 62 (107 N. W. 1032, 7 L. R. A. (N. S.) 930).
Plaintiff’s contention is that although the plaintiff has lost all title to the premises in controversy, and defendant’s intestate has acquired full and complete title thereto, nevertheless the defendant is now estopped to deny plaintiff’s title for the reason that defendant’s intestate failed to surrender possession of the premises to the plaintiff. This is an action in ejectment, and if plaintiff recovers at all he must recover on the strength of his own title and not, on the weakness of his adversary’s title. But regardless of this, there is no merit in plaintiff’s contention. The law does not prohibit a tenant from acquiring title to the demised premises, either by voluntary conveyance or judicial sale, and there is no more reason for holding that the tenant should be required to
A tenant is estopped to deny the title that the landlord had to the premises at the time of the demise, whether such title was at the time a good or a defective title, and this estoppel continues in force as long
Finding no error in' the record, the judgment of the lower court will be affirmed, and it is so ordered.
Affirmed. Rehearing Denied.