Walker v. Goldsmith

Strahan, J. The plaintiff brings this suit to obtain partition of the east half of the Danforth-Balch Donation Land Claim, situate in Multnomah county, Oregon. Pie alleges that he is the owner of 11,335-100,000 of said claim; that Louis Goldsmith is the owner of one-fourth ; that Max Goldsmith is the owner of one-fourth ; that L. W. Gilliland is the owner of 17,067-100,000; that Seneca Smith is the owner of 9,588-100,000, and that Anna Plamilton and Emma Dickinson each own one-twentieth. The defendants Louis Goldsmith and Max Goldsmith answered together, denying the material allegations of the complaint, except that Max Goldsmith is the owner of one-fourth of the real property described, and Louis Goldsmith is the owner of five-eighths thereof. Their answer then alleges that the defendant Max Goldsmith is the owner in fee of an undivided one-fourth of said real property, and that the defendant Louis Goldsmith is the owner in fee of the undivided five-eighths of said real property described in the complaint, and that defendants L. W. Gilliland, Seneca Smith, Emma Dickinson, Anna Hamilton, and P. L. Willis are the owners in fee of the undivided one-eighth of said premises; and that they have not together, nor has either of them, any other right, title to or interest in said real estate ; but these defendants have no knowledge or information sufficient to form a belief as to the rights of the said Gilliland, Smith, Dickinson, Hamilton and Willis, as between themselves. The plaintiff’s reply denies that Willis owns any part of said real property, or that he has any interest therein. It also puts in issue the residue of the new matter contained in the answer. The defendants, Dickinson, Smith and Hamilton answered, admitting their interests as alleged. Upon these issues the case was tried in the court below, where a decree for the partition of said real property was entered, substantially in accordance — 130 — with the prayer of the plaintiffs complaint. By said decree the court finds that the land to be partitioned contained 172 and 96-100 acres, and that the several parties (plaintiffs and defendants) owned the same as tenants in common, in the proportions alleged in the complaint. From this statement of the proceedings it will readily be’ perceived that the only real contention is between the defendant Louis Goldsmith and his co-defendants Gilliland, Smith, Dickinson and Hamilton, and the plaintiff, as to the ownership of the undivided three-eighths in issue between them. The pleadings admit that he owns two-eighths or one quarter, but they deny that he owns the other three-eighths which he claims, and that is the only controverted question we are called upon to determine. It is conceded by all, that on the 4th day of October, 1870, one-half of the land, including the three-eighths in controversy, belonged either to J. H. Mitchell or to John ' Danforth, Louis and Emma Balch, children of Danforth Balch, then deceased, and of Mary Jane Balch, who died in 1875 ; and that unless it then belonged to Mr. Mitchell it does not now belong to Louis Goldsmith ; and that Mr. Mitchell then owned a life estate in said land for the life of said Mary Jane Balch, with a right to the possession of the whole during the continuance of said life estate ; that on the 4th day of October, 1870, Mitchell conveyed to B. Goldsmith, for the consideration of $15,000, all his right, title and interest of, in and to the said premises, and that on the 26th day of October, 1870, said B. Goldsmith sold to P. Wasserman all his right, title and interest in said real property for $10,000, except the said life estate, which last estate terminated with the death of Mary Jane Balch in 1875. On the 12th day of July, 1871, for the consideration of $1,000, Wasserman sold and conveyed all his right, title and interest in said real property to Joseph Teal. The interest that is claimed, which passed by these mesne conveyances to Teal, was the same interest that was sold by C. $. Silvers, as guardian of Danforth Balch, Emma Balch, John Balch and Louis Balch, on the 24th day of September, 1870, to John H. Mitchell. If the county court of Multno — 131 — mah County had jurisdiction to order the sale of the interest of said heirs, then, for all the purposes of this case, Mitchell acquired their interest. The interest which the defendants Gilliland, Smith, Dickinson, Hamilton, and the plaintiff Walker represent in this case, is whatever interest they have acquired through mesne conveyances from the four children of Dan-ford Balch, above named, or such as the defendant Emma Dickinson had in her own right; and their present interest depends on the validity of the guardian’s sale above referred to, and the effect to be given to the decree of this court in the case of Joseph Teal, plaintiff, v. Frank Dickinson, and Emma Dickinson, his Wife, James C. Chapman, Eanforth Balch, John Balch and Louis Bcdch, defendants, and in the case of the same plaintiffs against the same defendants, which cases appear to have been consolidated, and one decree rendered, disposing of both cases in the same manner. If the guardian’s sale above referred to is a nullity, or if the decree in the causes last named was binding upon Solomon Goldsmith, or affected his interest, then the plaintiff and these defendants, whose title depends on the same questions, are entitled to have partition of said premises, as prayed: otherwise, the defendant Louis Goldsmith is entitled to five-eighths of said real property, and must have partition thereof, as prayed by him and Max Goldsmith in their separate answer. And first, as to the guardian’s sale: The entire record of the county court of Multnomah County in the matter has been offered in evidence in this cause, and we have carefully examined it. No substantial defect or irregularity was pointed out to us upon the argument, and we have discovered none. The county court, at the time it made the order of sale in question, appears from the record to have acquired jurisdiction of the subject matter and of the persons to be affected by its orders and decrees.; the sale regularly made, reported to the court, and on the 3d day of October, 1870, duly confirmed by said court, .and the guardian was directed .to execute and deliver a deed to J. H. Mitchell, the purchaser., for the property purchased by him. — 132 — Upon the argument, two points of objection were suggested against the validity of the sale. The first was, that at the time G. S. Silvers was appointed guardian of said minors, they were not residents or inhabitants of Multnomah County; and the other objection is, that J. H. Mitchell was not authorized to purchase, because he was one of the attorneys for the guardian, and that there was some kind of fraud practiced between the attorney and the guardian. But if it were competent to raise these questions between the parties now before the court, it has not been done. The pleadings in this suit are silent on both points. They contain no allegations of fraud, or other allegations tending to impeach the jurisdiction of the county court of Multnomah County in decreeing said sale. But if this sale can be attacked, it must be on some one or all of the grounds specified in the statute. The section on the subject is as follows : “ Sec. 20. In the case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward or any person claiming under him shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear: “ 1. That the guardian was licensed to make the sale by a court of competent jurisdiction. “ 2. That he gave a bond that was approved by the county judge. “ 3. That he took the oath prescribed by this chapter. “ 4. That he gave notice of the time and place of sale as prescribed by law ; and “ 5. That the premises were sold accordingly, at public auction, and are held by one who purchased them in good faith.” (General Laws, 740, Sec. 20.) In a case arising under a similar statute in the State of Minnesota, the appointment of a guardian was not allowed to be attacked collaterally. (Davis v. Hudson, 29 Minn. 27.) We, therefore, hold that this record is sufficient, and that by virtue of said guardian’s sale and the mesne conveyances offered — 133 — in evidence on the part of the defendant Louis Goldsmith, Joseph Teal acquired four-eighths of the east half of the Dan-forth Balch Donation Land Claim mentioned in the pleadings. The effect of the decree of this court against Teal, above referred to, upon the interest of the defendant Louis Goldsmith, remains to be considered. On the 5th day of May, 1880, Joseph Teal filed his complaint in the circuit court of Multnomah County, Oregon, against Frank Dickinson and Emma Dickinson, his wife, formerly Emma Balch, James G. Chapman, Danforth Balch and Louis Balch, to quiet his title to a half interest in said east half of said donation land claim, which half interest included the tliree-eighths now in controversy. On the 6th day of May, 1880, the summons in said suit was regularly served on the defendant Chapman. On May 15, 1886, a stipulation was signed by the attorney, whereby it was agreed that John Balch, Louis Balch and James G. Chapman should have until the second Monday of the next term of court thereafter in which to plead, and the said James G. Chapman then entered his appearance for himself and as attorney for the defendants Jolm and Louis Balch. On the 15th day of July, 1880, said defendants filed their answer. On the 2d day of January, 1877, or 1878, Joseph Teal and Solomon Goldsmith, of San Francisco, entered into an agreement in writing, whereby in consideration of $1, the receipt of which was thereby acknowledged, and for divers other valuable considerations, the said Joseph Teal agreed for himself, his heirs, executors and administrators, to make, execute and deliver to said Solomon Goldsmith, his heirs, executors, administrators and assigns, quit claim deeds to and for all the real property described in said writing, including the four-eighths of the Balch claim, heretofore mentioned. By the said writing the said Teal also obligated himself to convey to said Oliver Goldsmith a large amount of personal property, situate in .this state ; said conveyances to be executed by said Teal as soon as money enough was realized out of said real and personal property to pay off the full amounts of cer — 134 — tain claims specified in said writing, due by Teal. It also appears that on the 6th day of April, 1880, Solomon Goldsmith commenced a suit in the circuit court of the United States for the district of Oregon, founded on the said agreement; and that on the same day a restraining order was allowed against the defendant Teal, and he was also required, within ten days after the service of the said order, to show cause why a receiver should not be appointed, as prayed in said bill of complaint. It also appears that said suit was for an accounting, and for conveyance. It also appears that on the 16th day of April, 1880, the plaintiff in said suit applied to said court for leave to withdraw the same without prejudice, for the purpose of amicably settling the controversy; and said motion was allowed, and the bill of complaint was by leave of the court withdrawn from the files. It also appears that on the 6th day of May, 1880, Joseph Teal and wife conveyed by deed all their right, title and interest to Solomon Goldsmith, of, in and to the undivided three-fourths of the said east half of said donation claim. The deposition of Solomon Goldsmith was taken in this suit, in which he testified, in answer to interrogatories, substantially as follows: “ I purchased an interest in the Danforth Haleb Donation Land Claim in 1877 or 1878. I bought an undivided half of an undivided three-fourths of the east half of the donation land claim of Danforth Balch, from Joseph Teal and Bernard Goldsmith, in 1877 or 1878. I paid $±0,000. I had indorsed notes to the amount of $40,000 for Joseph Teal and Bernard Goldsmith. I paid these notes at maturity. Then Joseph Teal gave me a written contract, that upon the surrender of these notes he would give a deed of said property. I. tendered him the notes through my agent, Bernard Goldsmith, but he refused to execute a deed. I then commenced a suit in the United States district court of Oregon, in 1880, when he executed the deed.” Also further: “ I had a written contract with Joseph Teal, which was surrendered to him at the time of making the deed. I have no copy, and don’t know whether iny agent, Bernard Goldsmith, has or not. It also appears from his evidence that the $40,000 was paid for said interest two or — 135 — three years before the deed was executed, and that at the time of said payment he had no knowledge or notice of any kind that the Balchs claimed any interest in said real property, and that he never heard of said claim until after Joseph Teal commenced his suit. It also appears that Louis Goldsmith purchased this interest of Solomon Goldsmith for $40,000; and on all of these points, Solomon Goldsmith is corroborated by Louis Goldsmith, whose deposition was also taken. We are now prepared to consider the effect of the decree of this court upon Goldsmith’s interest, rendered in the case of Teal v. Dickinson et al. It is claimed by the respondents that Goldsmith was a lis pendens purchaser, and was, therefore, bound by the deeree rendered against Teal, from whom he re-' ceived Iris deed. There is no statute in this state declaring the effect of a decree upon the title or interest of a lis pendens purchaser, and, therefore, the common law rule will prevail. Chancellor Kent in Murray v. Ballou, 1 Johns Ch., 576, states the rule thus : 44 The established rule is, that a Us pendens, duly prosecuted, and not collusive, is notice to a purchaser, so as to affect and bind his interest by the decree, and the lis pendens begins from the service of the subpoena after the bill is filed.” And a late writer states the doctrine thus : 41 During the pendency of an equitable suit, neither party to the litigation can alienate the property in dispute, so as to affect the rights of his opponent. This brief proposition in reality contains the entire doctrine.” (2 Pomeroy’s Eq. Juris., Sec. 633.) I£ the title derived from Teal by Solomon Goldsmith is within this rule, then he and all who have succeeded to his interest would be bound by the decree rendered in that suit; otherwise he was a stranger to the proceeding and his interest remained unaffected by the decree. The rule and the exception are thus stated in Hopkins v. McLaren, 4 Cowen, 678, 679: “ The doctrine of Us pendens applies only when a third person attempts to intrude into a controversy by acquiring an interest in the matter in litigation pending the suit. The rule as given by Chancellor Kent, in the case of Murray v. Lyburn, — 136 — 2 Johns Ch. 445, is that any interest acquired in the subject matter of a suit, pending the suit, is so far considered as a nullity that it cannot avail against the plaintiff’s title. The reason of the rule is, that if a transfer of interest, pending a suit, were to be allowed to affect the proceedings, there would be no end to litigation; for as soon as a new party was brought in, he might transfer to another, and render it necessary to bring t*hat other before the court, so that a suit might be interminable. So that neither the rule nor the reason of the rule applies to the case under consideration. The interest of the appellant in the mortgage- was not a voluntary acquisition by him pending the suit. His interest subsisted long before the suit was commenced, and ought not in my opinion to have been considered as a nullity.” And so in Parks v. Jackson, 11 Wend. 442, Senator Seward, who delivered the prevailing opinion in the court for the correction of errors, said: “ This objection needs no other answer than that in order to take this case out of the rule of lis pendens, it is only necessary that the persons sought to be affected by the decree should have a subsisting interest in the premises, and might have been made parties to the suit.” So also in Trimble v. Boothby, 14 Ohio, 109, it is said: “ If the interest in these lands, acquired by purchase from Kerr, was to be affected by the suit of Moore’s devisees, such interest existing prior to the commencement of the suit, the persons so interested should have been made parties. Not having been made parties, it was their right to clothe their equity with the legal title, as though such suit had not existed.” The like'rule is stated in Clarkson v. Morgan's Devisee, 6 B. Monroe, 441. Said the Court: “ But if the contract was executory, it could not be overreached or concluded by a subsequent suit against Parker, without giving to those who claimed under it a right to be heard. Nor could the rights of Fowler, or those claiming under him, be concluded, though the contract had been in parol, the same being consummated by a subsequent deed; as was determined by this court in the case or Clary’s Heirs v. Marshall, 5 B. Monroe, 266. If a right or interest passed — 137 — from Parker to Fowler by contract, which was obligatory upon the parties, that right or interest cannot be overreached or concluded, by a subsequent suit against Parker.” In Haughwont v. Murphy, 22 N. J. Eq. 531, it is said: “A person whose interest existed before the commencement of the suit is a necessary party, and will not be bound by the proceedings, unless he be made a party to the suit.” (Ensworth v. Lambert, 4 Johns Ch. 605.) And the same doctrine is stated in Rodgers v. Dibrell, 6 Lea. 69. This doctrine may be regarded as elementary. Speaking of the doctrine of lis pendens > it is stated by an eminent American author that, “This reason, however, has no application to a third person whose interest existed before the suit was commenced, and who might have been made an original party.” (Bigelow on Frauds, 301.) And so in Adams’ Eq. 336, note 1, it is said : “ * * * And it applies only to rights or interests acquired from a party after the institution of the suit, and not to the case of a right previously contingent or conditional becoming perfect. This view of the application of the doctrine under consideration is further strengthened by considering the relations that existed between the vendor and vendee of real property.” * * * Where a contract is made for the sale of land, the vendor is in equity immediately deemed a trustee for the vendee of the real estate, and the vendee is deemed a trustee for the vendor of the purchase money. Under such circumstances the vendee is treated as the owner of the land, and it is devisable and descendible as his real estate. On the other hand, the money is treated as the personal estate of the vendor, and is subject to fhe like mode of disposition by him.” (2 Story’s Eq. Juris., Sec. 1212.) “ The view which equity takes of the juridical relations resulting from the transaction is widely different. Applying one of its fruitful principles, that that which ought to be done is regarded as done, equity says that from the contract, even while yet executory, the vendee acquires a real right, a right of property in the land, which, though lacking a title, and therefore equitable only, is none the less the real beneficial — 138 — ownership, subject, however, to a lien of the vendor, as security for the purchase price, as long as that remains unpaid. This property in the land, upon the death of the vendee, descends to his heirs, or jiasses to his devisees, and is liable .to the dower of his widow.” (1 Pomeroy’s Eq. Juris., Sec. 105.) The facts in this case show that at the time Teal commenced the suit in question he had no beneficial interest whatever in the property in question, and that he was nothing but the naked trustee of the legal title, and that he held said title for the benefit of Solomon Goldsmith. To allow the equitable doctrine of lis pendens to prevail so as to defeat such a right, would, to our minds, be subversive of some of the most important principles of equity. It was insisted at the trial of this cause that the decree against Teal must be allowed to have the effect of a recorded deed, for the purpose of cutting off and defeating the rights of Goldsmith under his contract with Teal. But to have this effect it must be imparted to it by some statute, and it is not claimed that there is any statute in force in this state giving to a decree any such force or effect. In Smith v. Williams, 44 Mich. 240, the Court apparently had this question under consideration. Its language is : “ The only reason given for the position is, that the plaintiff, by not recording her deed, and suffering Byron F. Squires to appear of record as apparent owner, has allowed him to appear to the world as the owner of the land now sought to be recovered by her, so that Squires’ day in court was her day, and she must accept the consequences of her own acts. It is, then, upon her failure to place the evidence of her title upon the record, that this effect of the decree upon her rights depends. The general rule that a judgment or decree binds those only who are parties to it, is not disputed. There are a few well understood exceptions of persons, who, subsequent to the institution of the suit, have acquired interests or claims under the parties ; but the plaintiff’s is not one of these, for her title had accrued before. If she loses her title, then, it roust be b3r force of the recording laws, for, independent of these, there is no principle of law that could bind her by the judgment against one whose inter — 139 — est she had acquired long before the suit was instituted.” And further on in the same case the court remarks : “ The mere institution of a suit cannot make 'one a bona fide purchaser.” It was claimed upon the argument by counsel for the respondent, that a suit is commenced by the filing of the complaint, and that the lis pendens attaches from that time; while counsel for appellants insist that the suit is to be deemed commenced for the purposes of Us pendens from the time of the service of the summons. We do not find it necessary to decide which view is correct. The lis pendens, whether it is to be regarded as attaching from the filing of the complaint or the service of the summons, did not in any way affect the estate of Solomon Goldsmith. And for like reasons we do not now decide the effect of the pendency of a suit upon a conveyance made by a plaintiff after the commencement of the suit, when the final decree is in favor of a defendant, upon new matter in his answer, and which answer was not filed until after such conveyance. Upon the latter subject Mr. Pomeroy says : u I would remark in passing, that while the general doctrine of notice of Us pendens and the foregoing special rules have ordinarily been applied to real property described by the plaintiff in his bill of complaint, they should upon principle apply with equal force to the counter claim and cross complaints authorized by the reformed procedure, by which the i defendant alleges some equitable interest or right, and demands some affirmative relief. In such pleadings the defendant becomes the actor, and is to all intents and purposes a plaintiff.” (2 Pomeroy’s Eq. Juris., Sec. 631.) Under this state of ¡pleadings it is difficult for us to see why a Us pendens attaches or becomes operative as notice, until the answer is filed setting up such equitable claim. Counsel for the respondent have on file in this cause certi[fied copies of numerous depositions heretofore taken in the [case of Teal v. Dickinson et al., and have offered the same as [evidence upon this trial. We have already held that there [are no issues in this cause, upon the trial of which any of the |said evidence would be material; but they are incompetent as — 140 — between the parties to this suit. Section 819 of the civil code, it is claimed, authorizes the introduction of these depositions. That section is as follows : “ Wrhen a deposition has been once taken, when either of the causes mentioned in section 804 exists, or if the witness be dead, or his attendance cannot be procured, it may be read in any stage of the same action, suit or jn'oceeding between the same parties or their representatives, upon the same subject, and is then to be deemed the evidence of the party reading it.” It is clear from an inspection of the depositions that they are not offered in an action, suit or proceeding between the same parties or their representatives, upon the same subject. The parties are different, and the two causes o£ suit are entirely dissimilar. It is also claimed now for the first time that the decree appealed from is not final; but we think it is final in the sense that it ascertains and determines the rights of the parties to the suit in the land in controversy, and leaves nothing more for the court to do but to carry the decree into effect by the appointment of referees, etc. It must be remembered, that in this case the plaintiff is seeking to make a collateral attack upon a judicial record of a court created by the constitution, which is a ‘ ‘ court of record having general jurisdiction, to be defined, limited and regulated by law, in accordance with this constitution.” (Const. of Oregon, article 8, Sec. 1.) Without entering into any general discussion of the law of this State relative to the power of county courts to order the sale of real estate of minors, it is sufficient to say, where the question arises collaterally, and where the pleadings do not attack the proceedings for want of jurisdiction, and. where the record on its face discloses jurisdiction both of the parties and the subject matter, the sale must be sustained. All other questions are mere matters of regularity, and in such case do not affect the legality of the sale. In addition to these considerations, the property appears to have passed through several purchasers, who, it is shown, in each instance paid large sums of money for it, presumably — 141 — upon the faith of this judicial record. To overthrow the sale now .n the way it is sought to be accomplished in this case, would look very much like a species of judicial robbery. No court of equity could do an act fraught with such flagrant injustice. Hatcher v. Briggs, 6 Or. 31, is a case where this court applied equitable principles to a void judicial sale. There the county court of Linn County had ordered the sale of certain real property for the purpose of partition, after all jurisdiction had been taken from the county courts in such matters, and vested in the circuit courts. It was a case plainly without jurisdiction, and the sale was admitted to be void. But Hatcher had invested his money on the faith of that-judicial record, and had made permanent improvements on the land. This court therefore refused to permit the legal owner of the land to recover the same, until an account had been taken of Hatcher’s purchase money and the value of the improvements made, and also of the rents and profits, and enjoined the legal owner until Hatcher was reimbursed. This case arose between the parties to the original transaction, and not between parties who came in subsequently, and invested their money on the faith of what had been done. Hatcher made himself a party to the proceeding by buying under a void order of sale, and of course lie was chargeable with notice of the law, and that the court had no jurisdiction to make such order. Still, this court found that in fact he had acted in good faith, and was entitled to protection. It seems to me that purchasers of property who receive it for value, after it has passed through many hands, have a much stronger claim. But I merely mention this case to show the position of such a purchaser in equity, as defined by this court, and not for the purpose of conceding that the defendants Goldsmith are in that position. That the attack in this case is collateral and not direct, seems to be conceded by counsel for plaintiff. He thus states the rule on page 148 of his brief: “ When the validity of the record attacked is directly put in issue by the pleadings of the party attacking it, by proper averments, then the attack is — 142 — direct and not collateral.” The converse of what is here said must be also true, and that is: when there are no proper averments attacking the record, the attack is then collateral, and not direct. In case of a collateral attack, this court decided, in Heatherly v. Hadley, 4 Or. 1: “If the record contains a recital of the facts requisite to confer jurisdiction, it is conclusive when attacked collaterally.” In this record, so far as I have been able to discover, the recitals appear to be full and complete. It also appears that the sale in question was reported to the county court of Multnomah County, and duly confirmed by that court, and a deed ordered to be executed. Now I think persons who are strangers to this record, and who have acquired rights upon the faith of it, for which they paid value, have a right to ask the court to invoke the ordinary presumptions as to jurisdiction and. regularity for their protection. It is to be presumed that what was done was rightly done, until the contrary is made to expressly appear, and that, too, in proper legal form. But counsel insists that all of the various provisions of the statute, relative to the sale of the property of a ward, are, in effect, mandatory, or in their nature jurisdictional; and compliance with the statute must be shown affirmatively, or jurisdiction is not made out. For instance, it is claimed that section 8, p. 739, General Laws, which requires that “ a copy of the order shall be personally served on the next of kin of such ward, and on all persons interested in the estate, at least ten days before hearing of the petition,” etc., is of that nature, and that unless this section is shown to have been complied with, the whole proceeding is a nullity. Amongst other authorities, much reliance appears to be placed on Mohr v. Tulip, 40 Wis. 66. But this case was expressly overruled in Mohr v. Porter, 51 Wis. 487, on this point, and it was there held: “ In a statutory proceeding by the guardian of an insane person for the sale of the real estate of his ward, he represents the ward; and when a proper petition has been presented by the guardian to the proper county court, that court has jurisdiction to order such sale, and its determination would be — 143 — binding on the guardian, and ward, even though it were not binding upon other parties having adversary interests without due notice on them.” And this latter view is also announced in Mohr v. Manierre, 101 U. S. 417, and is certainly supported both by the better reason and the better authority. Counsel for the plaintiff has also argued with much ingenuity, that the petition of the guardian for the sale of the property was insufficient to give the court jurisdiction to act in the particular case, for the reason that the petition is for the sale of the property to pay alleged debts. It is true, the petition mentions claims already accrued for the support of the children; but it then goes further, and alleges that they have no money or other estate whatever out of which to cancel such indebtedness for maintenance, or with which to provide for their future maintenance, etc.; and the future maintenance of said minors is elsewhere referred to in said petition as one of the reasons for making the sale. It is true, that payment of the alleged debt is also referred to as reason for making the sale; but in the present condition of this case before us, the only possible question that could arise on this part of the record is, l)id the petition for the sale state any cause which, under the law, would have authorized the court to order a sale ?—and we must say that it did. The petition showed there was no income from the estate, and that its sale was necessary to maintain said wards, thus bringing the case directly within the provision of Sec. 1, p. 788, General Laws, under which said proceedings were instituted. The case became coram judice when a petition was presented containing facts which would authorize the court to act. (Wright v. Edwards, 10 Or. 298 ; Gager v. Henry, 6 Saw. 237.) It is argued further on the part of the plaintiff, that there was no sufficient notice of sale given. The proof, so far as the same is disclosed by this record, is that the notice was printed in the weekly Oregonian a newspaper of general circulation published in the city of Portland, in said county and state, the first publication being in the issue of August 13,1870, and the last in the issue of September 3d, 1870, By the terms of said — 144 — notice the sale was to and did take place on Saturday, the 24th day of September, 1870. There is an affidavit in the record made by A. J. Moses, to the effect that on the 17th day of August, 1870, he posted up notices of said sale in three jmblic places (particularly describing them) in the city of Portland, etc. The jurat to this affidavit appears to have been made August 5th,. 1870. In addition to this evidence of notice, there is also the report of sale made by the guardian to the court, in which it is recited that said guardian gave public notice of such sale by causing notice thereof (Exhibit B) to be published once each week for four weeks successively in the weekly Oregonian newspaper, published in Multnomah County, in the issues of August 13th, 20th, 27th, and Sept. 3d, a. d. 1870, and by posting up printed copies of said notice (Exhibit 13) for over four weeks successively, in four of the most public places in Multnomah County, State of Oregon, prior to such sale. In each case reference is made to the affidavits attached to such notice. The order of the court confirming the sale contains the following findings as to the notice : “ And it appearing to the court by affidavits filed with said report of sales, that said C. S. Silver, guardian aforesaid, had given public notice of the time and place of sale as required by law, by publication of a notice thereof, particularly describing the interest of each ward, for four successive weeks prior to the day of sale, in the weekly Oregonian, a weekly newspaper published in Multnomah County, State of Oregon, and by posting up four similar notices in four of the most public places in Multnomah County, Oregon, four weeks prior to such sale.” The statute in such case prescribes the same notice as in ease of the sale of real property on execution. (General Laws, 739, Sec. 12.) And notice of sale of real property on execution must be given by posting a notice, particularly describing the property, for four weeks successively in three public places of the county where the property is to be sold, and publishing a copy thereof once a week for the same period in a newspaper of the county * * * ” (Civil Code, Sec. 287, Subd. 2.) On the face of these records, counsel for the plaintiff insists — 145 — that we ought to find that there was no evidence o£ the fact that notice of sale had been given by the guardian. To this wc cannot accede. It is true, there appears to be some discrepancy in the date of the verification made by Moses; but undoubtedly it was a clerical mistake. Such mistakes are not unusual, and it would be a harsh rule to say that they are fatal. The court would rather intend that the affidavit was made on some day after the notices had been posted. A like intendment was allowed to prevail in Bussell v. Lewis, 8 Or. 380. It is true, that case, as reported, only appears to have been decided by Thayer, J., on the circuit, who was then also a member of this court; but the cause was brought here on appeal, where his judgment was affirmed, though no opinion appears to have been written. Nor can we adopt the construction that the proof must show that the notice was given for four weeks next preceding the sale. Those words are not in the statute, and it is not the province of the court to insert them by construction. “ For four weeks successively,” is the language of our code. The word successively, as here used, is to have its ordinary meaning; in a successive manner, in a series or order; following in order or uninterrupted course. The other objections as to the validity of this record do not require particular notice. We have carefully examined them, and are entirely satisfied the same are not well taken. In stating these conclusions we are only reiterating what may be regarded as the settled law of this court. Said Lord, J., in Wright v. Edwards, supra: “Where there isa matter of substance upon which jurisdiction can hinge, mere errors or defects, although material in some respects, but which might have been avoided on appeal, cannot avail to condemn a judicial proceeding, when by lapse of time an appeal is barred, which has become the foundation of title to property.” (See also Arrowsmith v. Harmoning, 42 Ohio St. 254.] The following authorities tend to support our construction of this law: (Hanmann v. Mink, 99 Ind. 279; Robertson v. Johnson, 57 Tex. 62; Bunce v. Bunce, 59 Iowa, 533; McKinney v. Jones, 55 Wis. — 146 — 39; Watts v. Cook, 24 Kan. 278; Cocks v. Simmons, 57 Miss. 183 ; Spring v. Kane, 86 Ills. 580; Lynch v. Kirby, 36 Mich. 288; Wade v. Carpenter, 4 Iowa, 361; Matter of Conrad Harvey, 16 Ill. 127.) We have already said that we cannot try the question of fraud in this case, for the reason there are no pleadings and no issues on that subject. If fraud entered into the original proceedings of the guardian in procuring or conducting the sale, it might be a reason for setting aside his proceedings in equity, on the application of any one injured by such fraud. In such case his proceedings were not absolutely void—but voidable at the election of the party injured—and such party ought to make his election by bringing a suit to avoid the sale within a reasonable time after attaining his majority—or after knowledge of the fraud. Acquiescence for an unreasonable time after notice of the fraud, and after such minor had reached his majority, would be a waiver of the right to complain of it. It was expressly admitted on the argument, by counsel on both sides, that a clerical error appeared in this record in using the word “circuit” before the word “'court,” and that the original record read “county court.” But in the absence of such admission, it is too plain for argument that it is a mere clerical error, and that it is not entitled to a moment’s consideration. The error is manifest from the connection in which it occurs, and by reference to the other parts of the record. We have no doubt that in partition suits, where questions of fact are to be tried, it can only be done on regular issues joined between the parties, as in other cases. Any other practice would tend to very great uncertainty, and introduce interminable confusion. The allegations and proofs must agree in this class of suits, as well as all others under the code. The rule is elementary, and has not been changed or altered, or at least counsel for the plaintiff has cited no authority to support his contention, and we have been unable to find any. Counsel for the plaintiff seems to claim with much confidence that the decree in the Teal-Dickinson case cut off or destroyed — 147 — Goldsmith’s title, because his deed, or the evidence of his title, was not of record when that suit was begun, or when the defendant’s answer was filed; and he cites Utley v. Fee, 39 Kan. 683, to support this position. It seems from the report that one Flint quieted his title as against the persons who appeared from the record to have title, and then conveyed to the plaintiff. The plaintiff claimed that under section 21 of the act relating to conveyances, all unrecorded deeds executed by Fisher and Hammond and others were void in law and in equity as to Flint and Flint’s assignees. It is also said in the opinion : “ Indeed, at the time when the decree quieting Flint’s title was rendered, the unrecorded deeds held by the grantees of Fisher and Hammond were void as against Flint, without any decree of any hind.” (Comp. Laws of 1878, Ch. 22, relating to conveyances, Sec. 21). It thus appears from the case so much relied upon by the plaintiff, that it was the recording act of Kansas that destroyed the title of the grantees of Fisher and Hammond, and not the decree quieting Flint’s title. Clark v. Conner, 28 Iowa, 311, is also relied upon on this point. Language is there used broad enough to give color to plaintiff’s claim, but it is immediately added: “ And, further, the sections of the code of 1854, being sections 506 et seq., under which the tax foreclosure was had * * * provided that the tax purchaser should file his petition in the district court * * * in which action notice to the party and the service are to be the same as in case of a mortgage. And turning to section 2083 of the code of 1851, we find that a notice in a mortgage foreclosure must be served on the mortgagor, and upon all persons having recorded liens upon the same property. Hence we conclude that the tax foreclosure judgment was not void, for the reason that Spencer Moore, the defendant therein, had aliened the property to another whose deed was not recorded, etc.” Here the court properly gave much weight to the statutory requirement as to the persons on whom notice was to be served, and might have decided the case on that point alone. Besides, it appears to have been a tax foreclosure suit, and such suits are frequently in the nature of proceedings in rem. — 148 — Norton v. Birge, 35 Conn. 250, is also cited to the same point; but after a careful examination of the case, I do not think it tends to support the plaintiff’s contention. Leonard v. N Y. Bay R. R. Co., 28 N. J. Eq. 192, is a case not cited by counsel, where the rights of a party under an unrecorded deed were cut off by a decree in a suit to which she was not a party; but the court placed its decision expressly on the statute in force in that state, and not on any common law rule. So, also, in Aldrich v. Stephens, 49 Cal. 676, the same principle is announced, but the court is only applying the statute of California (Civil Code, Sec 726) to the facts before it. The contrary is announced as the rule in Davenport v. Turpin, 41 Cal. 100, where no statute is referred to by the court, and presumably there was none in force on that subject in California at that time. So in Lessees of Irvin v. Smith, 17 Ohio, 226, a person not a party, and whose deed was not recorded, was not bound or concluded by a decree in a suit against his grantee ; and it is expressly shown by this case that the doctrine of Us pendens has no application to such a state of facts. In addition to this, the court gives prominence to the fact that the deed in question was placed on record during the pendency of the suit and before a decree, just as Goldsmith’s was here, so that the party prevailing in the suit had full notice of the deed before his decree was entered. The statute of this state (General Laws, p. 518, Sec. 26), declaring the effect of omitting to record a deed, and in whose favor it operates, is as follows: “ Every conveyance of real property within this state hereafter made, which shall not be recorded as provided in this title within five days thereafter, shall be void against any subsequent purchaser in good faith, and for a valuable consideration, of the same real property, or any portion thereof, whose conveyance shall be first duly recorded.” Now if it be conceded that the plaintiff and those under whom he claims were purchasers in good faith and for value, still the decree under which they claim has never been — 149 — recorded, and Goldsmith’s deed being first duly recorded, would be prior to their decree. Secs. 37 and 38, Gen. Laws, 520, provide for the recording of certain decrees, but they do not appear to be comprehensive enough to include decrees like the one in question. On the question of fact suggested by the plaintiff’s counsel, it suffices to say that the evidence offered satisfies me that the contract in evidence is real and not fabricated, and that Goldsmith paid the amount of money to which he testified for the land. Slight discrepancies after so long a time are to be expected, and do not weaken the force of the evidence offered. Besides, the plaintiff omitted to offer this record until about the close of the evidence, and the time for the taking of evidence had about expired. It was claimed upon the argument that the defendant Goldsmith would have taken more evidence but for this reason. However this may be, if the plaintiff relied upon the Teal—Dickinson decree as one of the muniments of title, he ought to have offered it in chief, and the defendant would then have had no reason to complain that he had not been given a fair opportunity to meet it. The doctrine of Us pendens has been carefully examined, and without entering more at large into the discussion of the subject, I am satisfied it operates as notice only from the time the complaint is filed and the summons is served, and of such facts as are alleged in the pleadings, which are pertinent to the issue, and of the contents of exhibits. ( Centre v. The P. & M. Bank, 22 Ala. 743; Hayden v. Bucklin, 9 Paige Ch. 511—515, note 1; King v. Bill, 28 Conn. 592; Murray v. Ballou, 1 Johns. Ch. 566; Low v. Pratt, 54 Ill. 438; Miller v. Sherry, 2 Wall. 237; Jones v. Lush, 2 Met. [Ky.] 356; Lewis v. Mew, 1 Strob. [S. C.] 180; Griffith v. Griffith, Hoff. Ch. 153; Stone v. Connelly, 1 Met. [Ky.] 652 ; Freeman on Judgments, Sec. 199 ; 2 Pomeroy’s Eq. Juris., Sec. 634; Leitch v. Wills, 48 N. Y. 585.) “The rule has existed for centuries, and we cannot dispense with it where it is fairly applicable. As it is, however, a hard rule, and not a favorite with the courts, a party claiming the benefit of it must clearly bring his case — 150 — within it; and it is said if he makes a slip in his proceedings, the court will not assist him to rectify the mistake.” (3 Sug. on Vendors, 460 ; Sorrell v. Carpenter, 2 P. Wms. 482.) This case has been argued with great research and ability by counsel on both sides, and exhaustive and elaborate briefs have been filed, in which all of the questions at issue, both of law and fact, have been fully discussed. After a careful review of the entire case, we have no doubt whatever of the correctness of the views herein expressed. The decree of the court below will therefore be reversed, and a decree entered in accordance with this opinion, and the cause remanded to the court below for further proceedings. The appellants to recover costs.