Bliss v. Miller

BELT, J. It is conceded that prior to the divorce proceedings plaintiff and her former husband, Charles EL Fry, had an estate by the entirety in the land in controversy. The divorce decree, however, had the effect of changing the nature of their estate and made them tenants in common: Hayes v. Horton, 46 Or. 597 (81 Pac. 386); Chase v. McKenzie, 81 Or. 429 (159 Pac. 1025). Without doubt, plaintiff ac quired the undivided one-half interest of Charles H: Fry as a result of the sale of the property upon execution. We continue our inquiry therefore with the title in fee simple vested in plaintiff, subject to the mortgage owned by Stevens. In what way was she divested of such title? It is not. contended that she executed any deed conveying her interest. The decree of the court does not undertake to reform the alleged assignment of the certificate of sale, nor of the sheriff’s deed, but is predicated upon the theory of an oral agreement of the plaintiff to convey her entire interest in the property. Let us look to the record to ascertain whether there is evidence to sup *579 port this conclusion. In this connection it is urged by defendants that Willcox was the duly authorized agent of plaintiff to make such an agreement, but in this contention we cannot agree. There is no evidence of Willcox being expressly authorized to contract to convey plaintiff’s real property and it can hardly be contended that because he had acted in the capacity of an attorney and had collected money and rentals for her that he would have apparent authority so to act. Stevens testified that, in September, 1915, he went to see Willcox to get a clear title to the land, intending to foreclose his mortgage if she were not willing to comply with his wishes in the matter, and was informed by him that Mrs. Fry was in a position to give him a “title clear from all Fry claims for $90.” Stevens thereupon made a check payable to Willcox for that amount. He then, according to his testimony, went to see the plaintiff and informed her of the payment to Willcox and she said that it was “perfectly satisfactory to her.” Stevens, in referring to the conversation with plaintiff, said: “I explained that I was Stevens * * I told her of the arrangement of Willcox for her, to give her some money out of the transaction and that it transferred all Fry claims to me for this consideration that I had paid Willcox and she ratified it.” There is strong and convincing evidence that the plaintiff, at the time of this conversation, signed the instrument purporting to assign the certificate of sale, although she denies having executed it. The testimony of Stevens, as above stated, seems to be the only basis for the contention of the defendants that plaintiff made an oral agreement to convey his property. We agree that the statute of frauds relative to the transfer of title to real property would have no application if it *580 were clearly established that, pursuant to an oral agreement to convey the land, the defendants or their predecessors in interest went into possession and made valuable improvements thereon, but, after a careful consideration of the entire transcript of testimony, we are constrained to hold that the evidence does not show an agreement or meeting of the minds in, that respect. The opinion of Willcox that the alleged assignment would give a “clear title to all of the Fry claims” and the conclusion of the witness that the plaintiff ratified such statement or . representation does not constitute an agreement to convey. Plaintiff was not divested of title by reason of the fact that for many years she was probably not aware of any interest in the land and practically abandoned it. Her title was a matter of record and was constructive notice to Stevens and his successors in interest. We are not impressed with the contention of plaintiff that she did not execute the assignment of the sheriff’s certificate of sale which resulted in the transfer of her former husband’s undivided one-naif interest. Her explanation of this transaction is not convincing. She said: “Well, I can’t say that is my signature because I do not remember of ever signing it. I have thought it over for a year now. I have wondered and pondered over it.” Counsel for appellant insist, however, that, since the assignment was not witnessed nor acknowledged, it has no validity, and our attention is directed to Section 9876, Or. L., which provides that: “All assignments of sheriff’s certificate of sale of real property, on execution * * shall be executed and acknowledged and recorded in the same manner as deeds of real property, * * *581 Since this assignment was not witnessed and acknowledged as provided by statute, it was not entitled to be recorded and did not give constructive notice of its purport and effect, but, as between the parties thereto, was binding. At common law the validity of a deed did not depend upon its attestation or acknowledgment: 8 R. C. L. 940; Devlin on Deeds (3 ed.), § 255. The object of recording a deed is for the protection of creditors and innocent purchasers. In a few jurisdictions, under the statute, a deed not witnessed or acknowledged is not even binding upon the parties. In this jurisdiction, however, an imperfect or defective deed is, in equity, considered as a contract to convey and will be specifically enforced: Moore v. Thomas, 1 Or. 201; Hill v. Cooper, 6 Or. 181; Wood v. Rayburn, 18 Or. 3 (22 Pac. 521); South Portland Land Co. v. Munger, 36 Or. 477 (54 Pac. 815, 60 Pac. 5). It is true that defendants did not seek specific performance but, as stated in South Portland Land Co. v. Munger, supra: “The prayer for general relief will, however, warrant the court in decreeing specific performance, if such relief is otherwise appropriate under the facts stated.” Citing Franklin v. Greene, 2 Allen (Mass.), 519; Hill v. Beach, 12 N. J. Eq. 31. We conclude that plaintiff is vested with an undivided one-half interest in this property, but has made a valid assignment of her former husband’s interest therein. It follows that the decree of the lower court is reversed and it is adjudged and decreed that plaintiff is the owner in fee of an undivided one-half interest in the property described in the complaint and is entitled to possession thereof as tenant in common with *582 defendants. Neither party will recover costs or disbursements in this or in the lower court. (250 Pac. 763.) Mr. Max A. Gunning and Mr. George E. Brewster for the motion. Messrs. Collier, Collier & Bernard, contra. Reversed and Decree Entered. Rand, J., absent. Rehearing denied November 16, 1926.