Oliver v. Wright

Mr. Justice Moore delivered the opinion of the court. The transcript shows that Wm; Wilson and others September 22, 1885, by a warranty deed, conveyed to “Luke J. Boothe and Mary Ann Boothe” an undivided seven eighths interest in and to block 21 in the Town of Union, and that Bertha Nodine and her husband, April 5 1887, by a similar deed, conveyed to “L. J. Boothe, Sr., and Mary A. Boothe” the Nodine Block, particularly describing it. These grantees are not named in either deed as husband and wife, but it was stipulated at the trial in the lower court that at the times such conveyances were respectively made they sustained that relation, which continued until November 4, 1892, when the husband died, leaving Mrs. Boothe as his survivor. [326] 1. Whatever the rule may be in other jurisdictions in respect to a deed executed to a husband and wife of real property, it is settled in this State that such a conveyance creates a tenancy by the entirety, and that upon the death of either- spouse the survivor takes the whole estate : Noblitt v. Beebe, 23 Or. 4 (35 Pac. 248); Howell v. Folsom, 38 Or. 184 (63 Pac. 116, 84 Am. St. Rep. 785); Hayes v. Horton, 46 Or. 597 (81 Pac. 386). Therefore, on November 4, 1892, when the marital relation that had theretofore existed between Luke J. Boothe and Mary A. Boothe was severed by his death, she, eo instante, as his survivor, became the owner of, and was vested with, an estate in fee simple of the real property which was held by them as tenants by the entirety at his death. 2: Whether or not the inchoate right of survivorship of either spouse, as tenant by entirety of real estate, constitutes “property,” within'the meaning of that word as used in the statute (B. & C. Comp. § 296), so as to render such possible interest, before it accrues by the death of a husband or of a wife, subject to seizure by writ of attachment, or what the effect may be of issuing a general execution upon a'judgment directing the sale of attached property, we do not deem necessary to a decision herein. 3. The property of a defendant in an action is attached as security for the satisfaction of any judgment that may be recovered. The purpose of such ancillary proceeding is to prevent the owner from voluntarily disposing of or incumbering his property, and to preclude other creditors from securing prior liens thereon, and when a judgment quasi in rem is rendered against such property, directing it to be sold to satisfy the debt of the attaching creditor, the latter’s qualified right, secured by the seizure under the writ of attachment, becomes merged into the lien of the judgment. [327] 4. In the case at bar no intervening rights of third persons have accrued subsequent to the attachment, and prior to the entry of Wright’s judgment, that can effect any of the real property, the title to which became vested in Mrs. Boothe, so as to demand a levy of an execution upon the specific premises so originally seized, in order to protect his rights. The docketing of this judgment became a lien upon all the real property, the title to which vested in Mrs. Boothe in severalty upon the death of her husband, but such judgment did not establish any specific interest in her land. 5. The particular source from which a creditor derive's the money necessary to satisfy his judgment would ordinarily appear to be a matter of indifference so far as he is concerned, and, as a debtor in making payment to a person having two or more demands against him may compel the crediting of the money tendered on account of a designated debt, so, too, a judgment debtor who conveys in separate tracts to different persons all his real property that is subject to a general judgment lien thereby forces his creditor, if he is obliged to resort to an execution, to satisfy his judgment by a sale of the real property so conveyed in an inverse order of its alienation: Knott v. Shaw, 5 Or. 482. This rule does not contravene the doctrine announced in Dickson v. Back, 32 Or. 217 (51 Pac. 727), where it was held that a deed, absolute in form, purporting to convey real property, but intended by the parties as security for the payment of a debt, was a mortgage, and did not transfer the title to the premises, but only created a lien thereon, in enforcing which it was decreed that the assets should be marshaled, and that the land should be sold upon execution issued on a judgment that was a prior lien, but not in an inverse order of incumbrances. The decision in that case proceeds upon the theory that, as Dickson’s mortgage was subordinate to the lien of the [328] judgment, the equities, each being a lien, were equal, and hence the first in time should prevail, and that, if 'the plaintiff in that suit desired to be subrogated to the rights of the judgment creditor, he should pay off the prior lien. In the case at bar it will be remembered that plaintiff’s interest and title to the real property in question is evidenced by Mrs. Boothe’s deed, and not by any lien upon or incumbrance of the land which would necessitate a marshaling of the assets. Believing that the rules of equity, as adopted in this State, demand that the real property which is subject to the lien of Wright’s judgment should be sold in an inverse order of alienation, the decree is reversed, and one will.be entered here directing the sale upon execution, first, of the premises of which Mrs. Boothe died siezed; second, the land conveyed to R. Eakin ; and, third, if necessary, the real property so conveyed to plaintiff.- BeveRsbd.