19 Or. 222 | Or. | 1890
delivered the opinion of the court.
I have read the depositions of the witnesses taken herein and the exhibits submitted in proof, and am of the opinion that they fully sustain the referee in his findings regarding the mistake in the execution of the deed by John McGarry to the appellant.
The testimony shows beyond question that the parties had in view the sale and purchase of block 285 in the Reserve addition to the town of Pendleton, Umatilla
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 the plaintiffs therein, the date therof, and that he had delivered such certificate to the county clerk of the county of Umatilla, and that the latter had duly filed and recorded it as provided in section 151, Civil Code, and that they had no notice or knowledge of the mistake in the deed from McGarry to appellant at the time such proceedings
According to this view, the respondents Houser, Flack, and Dawson acquired no rights in the said block under the said attachment proceedings that were not subject to the equity of the appellant therein, whether the possession thereof by the appellant and her grantees was sufficient or not to impart notice to them of such equity. Their attempt, therefore, to sell the block under the said proceedings was a clear violation of the appellant’s rights in the premises and contrary to equity and good conscience.
The decree appealed from will be reversed and a decree entered in this court in accordance with the prayer of the appellant’s complaint^ and the case be remanded to the said circuit court with directions to enter such decree as the decree of that court, and for such further proceedings as may be necessary to carry the same into effect.