Metropolitan Investment & Improvement Co. v. Schouweiler

Mr. Justice McCamant delivered the opinion of the court. It is provided by Section 7129, L. O. L., as amended in 1911 that: “Every conveyance affecting the title of real property within this State hereafter made, which shall not be recorded as provided in this title, shall be void as 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 filed for record.” The statutes of Oregon on the subject of attachment contain the following provision, Section 301, L. O. L.: “From the date of the attachment, until it be discharged or the writ executed, the plaintiff, as against third persons, shall be deemed a purchaser in good faith and for a valuable consideration of the property, real or personal, attached.” The defendant Schouweiler relies on these sections of the code and claims that under them his attachment takes precedence of plaintiff’s unrecorded deed. There can be no doubt of the correctness of this conclusion if the defendant Schouweiler has brought himself within the operation of Section 301. The evidence shows clearly that plaintiff’s deed was based on a valuable consideration and that plaintiff is without fault except for its delay in recording its deed. 1. This court has been called upon several times to interpret Section 301, L. O. L., in its application to this [699] state of facts. It is well settled that the legislature did not intend to put the attaching creditor in any better position than the holder of a subsequent deed from the defendant in the attachment action. It is accordingly held that it is necessary for the attaching creditor to allege and prove that he had no notice of the unrecorded deed when his attachment was levied: Rhodes v. McGarry, 19 Or. 222, 228-231 (23 Pac. 971); Flegel v. Koss, 47 Or. 366, 371 (83 Pac. 847). The allegations of the defendant Schouweiler meet this requirement but his proofs do not. He testifies that his last conversation with’ S. E. Clinton prior to the litigation took place between the 20th and 25th of April, 1914. This was about a month prior to the execution of the deed under which plaintiff claims. Mr. Schouweiler further testifies: “Q. Did you ever see Mr. Clinton after that? “A. Never saw him after that. “Q. Did Mr. Clinton ever tell you that he had sold, traded or exchanged the property? “A. Never did, said he had not.” The foregoing is the extent of this defendant’s testimony on the subject. It negatives only one source of information. 2. It falls short of establishing that at the time when his attachment was levied the defendant Schouweiler had no knowledge of the existence of plaintiff’s deed. Plaintiff has joined issue on this defendant’s allegations on the subject in question and manifestly there is a failure of proof. 3. The burden also devolved on the defendant Schouweiler to prove that his attachment was duly levied, that all of the statutory requirements appertaining thereto were complied with: Rhodes v. McGarry, 19 Or. 222, 230 (23 Pac. 971). [700] 4, 5. Under the provisions of Section 296, L. O. L., a plaintiff seeking to secure a writ of attachment must show by affidavit that the action is not prosecuted to hinder, delay or defraud any creditor of the defendant ; also that plaintiff’s debt is unsecured. It appears that there was an affidavit for attachment in the action against Clinton, but it was not offered in evidence in the case at bar, nor was evidence received as to its contents. The record therefore fails to show a compliance with these requirements of the statute. . If they were not complied with the attachment was not issued lawfully and the defendant Schouweiler can maintain no rights thereunder as against plaintiff. The judgment recovered against Clinton does not establish these facts against plaintiff: Barnes v. Spencer, 79 Or. 205, 215-218 (153 Pac. 47). 6. Plaintiff denies that the attachment “was duly and regularly issued.” The defendant Schouweiler has failed to sustain the burden of proof devolving upon him under this issue. The practical effect of the decree of the lower court is to compel plaintiff to pay Clinton’s debt. We are therefore subjecting the defendant Schouweiler to no hardship when we require him to prove by unequivocal evidence those facts without which he cannot be held to be a purchaser in good faith and for a valuable consideration of the property in question. It follows that the decree of the lower court should be reversed and one entered here in accordance with the prayer of the complaint. Reversed. Decree Rendered. Mr. Chiee Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.