11 Or. 518 | Or. | 1884
This appeal is from a decree rendered in favor of the respondent, and against the appellants, enjoining them from selling certain real property, consisting of two hundred and seventy-seven acres of land, situated in the county of Benton, State of Oregon, by virtue of an execution issued out of the said circuit court upon a judgment at law, recovered in favor of the appellant, Woodcock, against one David Huggins, and delivered to the appellant, King, sheriff of said county of Benton, for service. It appears from the pleadings in the suit,' that on the 1st day of February, 1876, said Huggins was the owner of said real property, having the legal title in fee, to a hundred and forty acres thereof, and the equitable title to the remainder, the legal title thereof being in one Alexander Lamb, in trust for Huggins; that on said 1st day of February, 1876, said David Huggins executed, in due form, a deed to said one hundred and forty acres, to one John Rickard, and at the same time the said Alexander Lamb executed a deed to said one hundred and thirty-seven acres, to said Rickard; that said deeds were absolute in terms, and eacli contained a covenant of warranty; that at the same time said John Rickard executed to the said Huggins an agreement under seal, whereby he agreed to sell to the said II. the two parcels of said real property for two thousand five hundred and thirty-six dollars, gold coin, in consideration of which, said H. agreed to pay to the said R. on the first day of February, 1877, said sum of $2,536.00; also to pay all state, school and county taxes or assessments of whatsoever nature, which were or might become due on the said premises, and which said agreement further provided that in case said Huggins neglected to comply with
The appellants claim that the transaction between said Rickard and said Huggins in regard to the execution of said deed by Huggins, and the deed from Lamb to Rickard
If the amount of the alleged purchase price of the premises had been greatly disproportionate to their real value, it would have afforded a strong circumstance that a sale was not intended; but the appellant’s' counsel makes no such claim; nor is it proved that any debt arising out of the transaction ever existed in favor of Rickard against Huggins. No credit appeal’s to have been given upon the sale of the wheat, and the affair can, consistently with the facts, be regarded as an exchange of the premises for the wheat.. It is true that Rickard exacted from Huggins, at the time he executed to him the said agreement under seal to re-convey said premises, a chattel mortgage upon a portion of the wheat to be grown thereon as a security for the payment of the $2,536 stipulated in said contract for reconveyance, and that may be a circumstance tending to show that the parties meant that the conveyance of the premises should only operate as a mortgage; but in view of the positive testimony of both Rickard and Huggins that a sale of the premises from the latter to the former was intended, and the inconclusiveness of the circumstances relied on to establish the contrary fact, the court would have great difficulty, even as between these parties, in deciding that the
The appellants’ counsel suggested at the hearing, a doubt as to vuiether a suit upon the part of the respondent to enjoin the proceedings upon the execution, was maintainable. We have considered that question and are satisfied that the owner of real property has a right to restrain the sale thereof under a judgment against a third party who has been privy to the title which is not a lien or charge thereon, and which judgment such owner is in no wise liable to the payment of. Such a proceeding necessarily clouds his title, creates a distrust as to its validity and operates to his'injury, for which he would have no adequate remedy at law. The right to maintain such a suit has been frequently recognized by this court, and, in our opinion, is maintainable in accordance with equitable doctrine.
The judgment appealed from is, therefore, affirmed, and the usual decree will be entered in accordance with the course and practice of this court in such cases.