Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-20
Purify Your Blood

llc 6dule W DS SeIf6u Ou lub ueIeuu-
ant designated by the plaintiff or
his attorney, by a direction indorsed
on such summons" In Harris V.
Sergeant, 81 Or. Al, the return upon
the summons reads thus: II hereby
certify that received the within
summons on the ninth day of April
A. D. 1885, 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. NJ. Harris, by deliver
ing 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 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.. Coal, county clerk of Polk
county, Oregon" Certain real prop
erty was sold by virtue of decree
rendered in pursuance of that re-
turn. In an action of ejectment
brought against the purchaser whose
deed depended upon the decree thus
rendered, this court held that the re-
turn was not sufficient to give the
court jurisdiction over the property
and persons of the minors The rea-
son assigned was that the return did
not show 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 1t will be construed
strictly and that this must appear
from the sheriff's return; otherwise
the court does not acquire jurisdic-
tion 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 re-
turn the most favorable construction
possible, 1t would be valid as aaginst
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 concluded fact is he was minor
under the ages of IA years. Within
the meaning of Harris V. Sergeant
supra, the circuit court had no juris-
diction to render decree of fore
closure against the minors.
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 mort
gagees and hence that they are in the
situation of a mortaggee in posses
sion, 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; 1t
would not give title to such pur-
chaser as against the minors. Hence
when claiming under the deed to him
/ self by the defendants the plaintiff
found himself where in any event he
would have to surrender possession
of the property when the minors ten
dered him the principal and interest
on the mortgages given by their faith
er, together with the taxes paid upon
the land. 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 COM
PEELED 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 ac-
tion at law, for the rule is we'll set
tied in this state that an equitable
defense cannot be interposed to an
action at law, 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 consid-
ering the age of the minors at the
time Of the institution of the suit to
quiet title, adverse possession would
not run against them. Sec. II, L. o.
L.; Northrop V. MarQuam, 16 Or. 17S.
1t appears that in settlement of
the suit to quiet title and the acqui-
sition of the title Of the Pecks to the
property in question the plaintiff
paid them $1,000 and that is themeasr
ure of damages for the breach OF the