Schultz v. Selberg, 157 P. 1114

Schultz v. Selberg

157 P. 1114 | Or. | 1916

Ms. Justice Burnett

delivered the opinion of the court.

1-4. It is the contention of the plaintiff that the denials of the reply are insufficient to raise an issue upon the answer, because the intervener disclaims any knowledge or information sufficient to form a belief of matters stated therein which must of necessity be within his personal knowledge. She argues, for instance, that the intervener cannot on information and belief deny her assertion that he knew and had full knowledge that Augusta M. Cyrus made, executed and delivered to the plaintiff her certain promissory note. She charges that he knew certainly whether he had such knowledge or not, and could not evade that allegation by denying information about it. The true construction of the reply on that feature is that it is sham, and would constitute an admission if nothing else appears. r<

It is a principle of pleading, however, that a failure to deny can be held as an admission only of such matter as is well pleaded. We turn, therefore, to the answer to ascertain whether its averments constitute a sufficient pleading. It is said that the plaintiff com*675menced an action against Angusta M. Cyrus. There is no statement showing any service of summons or other means of acquiring jurisdiction. We are told that the plaintiff “recovered judgment against said Augusta M. Cyrus,” but whether it was obtained in that action or another does not appear. It is not even stated that the judgment was “duly” given or made in that proceeding as might have been permitted under Section 87, L. O. L. It is mentioned also that a writ of execution issued out of said court, but whether upon a judgment in favor of the plaintiff or against Augusta M. Cyrus is not stated. The narration is that a sheriff’s sale was held on the steps of the courthouse, but whether by virtue of that execution or another or by some different precept is not disclosed. The plaintiff avers that on the date named the sheriff executed and delivered to her his deed, but nothing appears concerning a confirmation of sale, and hence no authority for the officer’s conveyance is shown, because it has always been the law that a sale must be confirmed before a deed can issue. Knowledge of the proceedings described in the answer is imputed to the intervener, but he may have known everything stated in that pleading, and yet, if they were no better than there described, they did not affect him nor call for action on his part. The plaintiff also charges that the intervener knew that Mrs. Cyrus had represented that she was the owner of the property, and so obtained the credit upon her note to the plaintiff, but it is not averred when the intervener acquired this knowledge whether before or after the loan was made. Further, the charge that the defendants and the intervener “have fraudulently conspired to divest plaintiff of her rights in and to said property” is only a conclusion of law; there being no facts stated upon which a charge *676of fraud could be based. The plaintiff, having undertaken to set out in detail all the steps in her acquisition of title to the land instead of pleading them, so to speak, according to their legal effect, must show all that is necessary for that purpose, and they must be well pleaded. The omissions pointed out are fatal to her estate, as she has declared its origin. The matter to which reference has been made not being well pleaded, the intervener loses nothing by reason of his attempted denial of information and belief; for, as stated .before, admissions are binding only so.far as the unchallenged statements are well pleaded. This remits us to the sufficiency of the cross-complaint in intervention.

5. It sufficiently appears by that pleading that the intervener paid all the purchase price for the property, and that the judgment debtor, Mrs. Cyrus, had only the bare naked title; that she had no beneficial interests in the tract, and consequently nothing available to a judgment creditor. It is a principle well established by former decisions of this court that only the actual interest of a judgment debtor in realty is liable for the satisfaction of a judgment. It is thus stated in Meier v. Kelly, 22 Or. 136, 139 (29 Pac. 265, 267):

“As a general rule, unless otherwise provided by statute, a judgment lien only attaches to the actual, and not the apparent, interest of the judgment debtor in land, and is subject to all equities which were held against the land in the hands of the judgment debtor at the time the judgment was rendered, whether known to the judgment creditor or not. When called upon in a proper case, courts of equity are always ready to protect the rights of those who hold such equities as against the judgment lien and to confine the latter to the actual interest of the judgment debtor.”

*677A like doctrine is taught in Laurent v. Lanning, 32 Or. 11 (51 Pac. 80), Dimmick v. Rosenfeld, 34 Or. 101 (55 Pac. 100), and Smith v. Farmers & Merchants’ National Bank, 57 Or. 82 (110 Pac. 410). The analogy is followed in Gladstone Lumber Co. v. Kelly, 64 Or. 163 (129 Pac. 763), where the argument is summed up with the statement that, “the judgment debtor having put nothing into the property, his creditors can take nothing out of it.” The creditor cannot reap where his debtor has not sown. The cross-complaint in intervention is a sufficient pleading.

6. The controversies of fact arising on the traverse thereof have been settled by the trial court in favor of the intervener. In the absence of any testimony in the record, before us, we cannot overturn those findings, but must accept them as a correct determination of the dispute to which they refer. They are within the issues raised by the cross-complaint and the mere denials of the answer. The attempted contention sought to be raised between the new matter of the answer and the so-called contradictions of the reply is negligible, as we have already shown.

7, 8. Finally, it is urged that the court was without power to act, because Augusta M. Cyrus was not made a party. This defect, if it be one, appeared on the face of the pleadings, and could have been presented by demurrer, in default of which it has been waived. Moreover, it does not lie in the mouth of the plaintiff to raise such an objection at this time, because she is before the court claiming to have succeeded to all the rights of Mrs. Cyrus in the premises by virtue of the execution sale. The plaintiff has all that Mrs. Cyrus had or nothing. If she obtained anything by the sheriff’s deed, she herself is here representing that interest. If she got nothing by that instrument, she has no *678standing in this litigation. In either case this objection is without merit.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur. Mr. Justice Eakin absent.