163 P. 599 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
It is provided by Section 7129, L. O. L., as amended in 1911 that:
“Every conveyance affecting the title of real property within this State hereafter made, which shall not be recorded as provided in this title, shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance shall be first duly filed for record.”
The statutes of Oregon on the subject of attachment contain the following provision, Section 301, L. O. L.:
“From the date of the attachment, until it be discharged or the writ executed, the plaintiff, as against third persons, shall be deemed a purchaser in good faith and for a valuable consideration of the property, real or personal, attached.”
The defendant Schouweiler relies on these sections of the code and claims that under them his attachment takes precedence of plaintiff’s unrecorded deed. There can be no doubt of the correctness of this conclusion if the defendant Schouweiler has brought himself within the operation of Section 301.
The evidence shows clearly that plaintiff’s deed was based on a valuable consideration and that plaintiff is without fault except for its delay in recording its deed.
The allegations of the defendant Schouweiler meet this requirement but his proofs do not. He testifies that his last conversation with’ S. E. Clinton prior to the litigation took place between the 20th and 25th of April, 1914. This was about a month prior to the execution of the deed under which plaintiff claims. Mr. Schouweiler further testifies:
“Q. Did you ever see Mr. Clinton after that?
“A. Never saw him after that.
“Q. Did Mr. Clinton ever tell you that he had sold, traded or exchanged the property?
“A. Never did, said he had not.”
The foregoing is the extent of this defendant’s testimony on the subject. It negatives only one source of information.
The practical effect of the decree of the lower court is to compel plaintiff to pay Clinton’s debt. We are therefore subjecting the defendant Schouweiler to no hardship when we require him to prove by unequivocal evidence those facts without which he cannot be held to be a purchaser in good faith and for a valuable consideration of the property in question.
It follows that the decree of the lower court should be reversed and one entered here in accordance with the prayer of the complaint.
Reversed. Decree Rendered.
Rehearing
On Rehearing.
(161 Pac. 370.)
On petition for rehearing, former opinion adhered to.
Mr. Dan E. Powers and Mr. W. S. Eufford, for the petition.
Mr. W. B. Shively, contra.
Department 2.
delivered the opinion of the court.
Reversed. Opinion Adhered to.