110 P. 410 | Or. | 1910
delivered the opinion of the court.
“The rule that an instrument in writing cannot be contradicted or varied by parol evidence applies only between the parties and their privies, and cannot be invoked in controversies between third parties and any of the parties to the contract.” Carmack v. Drum, 32 Wash. 237 (73 Pac. 377, 785) ; Brown v. Wisner, 51 Wash. 509 (99 Pac. 581) ; Greve v. Echo Oil Co., 8 Cal. App. 275 (96 Pac. 904.)
And, although the writing may be admissible in evidence against plaintiff, it does not preclude oral evidence as to the real terms of the agreement. From the testimony of Mrs. Dunne, R. H. Dunne, J. C. Roberts, as well as plaintiff herself, it is clearly established that the contract of purchase was made by plaintiff for herself. It also appears from the evidence that the writing by inadvertence and mistake was made to recite that the conveyance was to be made to C. J. Smith, instead of to plaintiff, as intended by the parties thereto.
“A judgment lien creditor until the levy of an execution issued thereon can in no sense, either as a fact or by statute in this State, stand in the position of an innocent purchaser for value. His lien is a mere gratuity, conferred by law, for which he pays nothing, and only confers the right to levy upon the land to the exclusion of other adverse interests acquired subsequently to the judgment. * * The apparent interest of a debtor can neither extend nor restrict the operation of the lien so that it shall encumber any greater or less interest than the debtor in fact possesses.”
In Dimmick v. Rosenfeld, 34 Or. 101, 103 (55 Pac. 100, 101), which is a parallel case to the one under consideration, in which the title was conveyed to Drake, the husband, though it was the wife’s purchase, and by him to the wife, Mr. Chief Justice Bean says:
“He had no interest whatever in the property, but was a mere conduit, through which the legal title passed from Beatty to his wife, the real purchaser and owner. Under these circumstances, the authorities are quite uniform that a judgment against him would not become a lien upon the land.”
Therefore the docketing of the judgment against C. J. Smith did not create a lien upon this lot. Black, Judgments, § 420; Snyder v. Martin, 17 W. Va. 276 (41 Am. Rep. 670) ; Koons v. Mellett, 121 Ind. 585 (23 N. E. 95: 7 L. R. A. 231.)
The decree is affirmed. Affirmed.