Cobb v. Klosterman

Mr. Justice Burnett delivered the opinion of the court. 1. In the light of the stipulation about the ages of Elmer Peck and Lloyd Peck, the eldest of them was about 7years of age on April 16, 1894, the date mentioned in the return of the sheriff upon the summons in the foreclosure suit. Section 55, L. O. L., provides that a summons shall be served upon a minor under the age of 14 years by delivering a copy thereof, together with a copy of the complaint, certified as is therein required, “to such minor personally, and also to his father, mother, or guardian, or if there be none within this State, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed.” Section 398, L. 0. L., provides that “when there is more than one defendant in the suit, service of the summons may be made by serving only one copy of the complaint, the same to be served on the defendant, designated by the plaintiff or his attorney, by a direction indorsed on such summons.” In Harris v. Sargeant, 37 Or. 41 (60 Pac. 608), the return upon the summons reads thus: “I hereby certify that I received the within summons on the ninth day of April, A. D. 1889, and served the same on the twenty-fifth day of April, A. D. 1889, in Benton County, Oregon, on the defendants S. S. Harris, L. E. Harris, and L. M. Harris, by delivering to each of said defendants a true and correct copy of said summons prepared and certified to by me as sheriff, the above-named defendants being minors; also by delivering to their guardian, Mrs. Frances Kemp, for each of them, a true and correct copy of said summons, prepared and certified to by me as sheriff; also by delivering to the defendant S. S. Harris and his guardian, Mrs. Frances Kemp, each a copy of the complaint, prepared and certified to by C. G. Goad, county clerk of Polk County, Oregon.” Certain real property was sold by virtue of a decree rendered in pursuance of that return. In an action of [217] ejectment brought against the purchaser whose deed depended upon the decree thus rendered, this court held that the return was not sufficient to give the court jurisdiction over the property and persons of the minors. The reason assigned was that the return did not show a delivery of a copy of the summons to the minors personally, and, generally, that the return must conform to all the requirements of the statute, as it will be construed strictly, and that this must appear from the sheriff’s return; otherwise the court does not acquire jurisdiction. Applying the reasoning of that case to the return in question here, we see that no attempt is made to show any delivery whatever to the minor Lloyd Peck, and, giving the return the most favorable construction possible, it would be valid as against Elmer Peck only, if he were at the time above the age of majority, for the return shows that he was served as if he were such an adult, whereas the conceded fact is he was a minor under the age of 14 years. Within the meaning of Harris v. Sargeant, 37 Or. 41 (60 Pac. 608), the circuit court had no jurisdiction to render a decree of foreclosure against the minors. 2. But the defendants here contend that they are successors in interest to the purchaser at the sale, who was subrogated to the rights of the mortgagees, and hence that they are in the situation of a mortgagee in possession. Conceding, without deciding, that they are in such a situation and that the purchase by a stranger to the decree at the execution sale in such a suit would bring about such a result, yet the foreclosure suit and the sale in pursuance thereof would not accomplish more than this; it would not give title to such a purchaser as against the minors. Hence, when claiming under the deed to himself by the defendants, the plaintiff found himself where, in any event, he would have to surrender possession of the property when the minors tendered him the [218] principal and interest on the mortgages given by their father, together with the taxes paid upon the land. 3. In the suit against him by the Pecks to quiet the title he could possibly have urged the facts stated in this answer with the result that the Pecks might have been compelled to redeem, but that would not make legal title for him. In effect, the defendants here have undertaken to set up as a defense in this action at law what might have been an equitable defense to the suit to quiet title. This cannot be done in an action at law, for the rule is well settled in this State that an equitable defense cannot be interposed to an action at law. 4. The foreclosure suit did not pass the legal title so the defendants could convey the same to the plaintiff, and hence there was a breach of their covenant of seisin and of warranty. They cannot escape this by any showing that is made about adverse possession, for, considering the age of the minors at the time of the institution of the suit to quiet title, adverse possession would not run against them. Section 17, L. O. L.; Northrop v. Marquam, 16 Or. 173 (18 Pac. 449). 5. It appears that in settlement of the suit to quiet title and the acquisition of the title of the Pecks to the property in question, the plaintiff paid them $1,000, and that is the measure of damages for the breach of the covenant, if nothing else is shown. As against this the defendants here claim that M. L. Peck, the widow and administratrix, was properly served with the summons in the foreclosure suit, and hence she is bound by that decree, and that in any event the plaintiff here could not recover for any amount which he paid to her. However, if the amount paid was apportionable at all among the Pecks, there is nothing in the pleadings here by which the court could make such an apportionment. The defendants here do not in their answer dispute the amount of the payment; they only contest the liability or compulsion [219] of the plaintiff to pay at all. If they intended to attack the part of the payment going to Mrs. Peck, the widow, they should have framed their pleadings accordingly, but they have not done so. 6. Of course, by settling the suit with the Pecks without notifying the defendants here and calling upon them to defend in that suit, the plaintiff assumed the burden in this case of proving paramount title in the Pecks, to which he yielded, but the superior estate of at least Lloyd and Elmer Peck is established beyond question, because the court never acquired jurisdiction over them to divest them of their property. The judgment is affirmed. Affirmed.