Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-27

advanced as alleged on account of
which loan about $500 had been paid I;
that the Judgment secured by Marsh
was for work performed by him in
/ drilling the well which he sunk 1877
feet; that he was informed that some
of the machinery had been paid for
| by such advances; that plaintiff knew
he was doing work under a contract
with Enos or whatever company the
latter represented; and that Marsh
never rendered any services under a
contract with plaintiff.
The defendants, Chrisman and
Enos not having appeared or an
swered the cause was tried and find
ings of fact were made correspond
I ing to all the averments of the COM
plant except the tenth upon which
no finding was made; that Slusher
commenced an action against Enos
and sued out a writ of attachment
pursuant to which the personal prop
erty involved herein was attempted
| to be seized as the machinery of
Enos; that a Judgment was rendered
| in that action and an execution is
sued thereon was directed to the
sheriff who, obeying the writ, a few
days prior to the commencement of
this suit, attempted to levy the same
upon and to take possession of all
the personal property described in
the complaint; and that an execu-
ton was issued on Marsh's Judgment
and the defendant Chrisman under
took to levy the writ upon and to
take possession of all such property
as that of the Oregon Drilling Com
pany
As conclusions of law the court
determined that plaintiff had a prior
lien upon all the property described
in the complaint which lien should
be foreclosed and the machinery,
etc, sold to satisfy the demand;
upon the payment of which Slusher's
Judgment should he liuuidated and if
any money then remained, it should
be applied upon Marshs judgment.
A decree was rendered in accord
ance with such findings and Marsh
alone appeals.
Moore. ]. The testimony clearly
shows that on June /, 1907, when the
written agreement was signed by the
parties Enos was then engaged in
business as the Pacific Well Drilling
Company. It is evident from an ex-
animation of the contract that it was
intended to charge particular prop
erty with the payment of debt to
be created by advances made to ena-
BILE Enos to secure the necessary ma
chinery with which he could perform
the work undertaken. An equitable
lien was thus expressly contemplated
by the parties whereby the boiler,
engine, tolls, appliances, etc, should
constitute security for the repayment
of $2,500 advanced on account there
of. MarQuam V. Sengfelder, "a Or.
2, H. Whether or not by invoking
the maxim that equity will regard as
done what was intended the lien
arose when the machinery was pur-
chased is unnecessary to determine,
for the charge imposed upon the
specific property attached when the
boiler, engine, ETC., were consigned to
plaintiff in accordance with the
terms of the agreement. Jones
Liens I'D Ed Sec. Ga.
Testimony was offered by witness
who appeared for defendants tending
to show that some of the machinery,
tools etc, described in the COM
plaint was never consigned to plain
tiff and such being the case no lien
could be imposed thereon In a de-
position Enos stated upon oath that
after consigning to the Dufur Oil
Comnany machinery with sight
drafts attached and on account of
which $4,000 was paid by plaintiff he
shipped in his own name other ap-
pIiauces, saying: There were
blocks and tackle worth probably in
the neighborhood of $50 or $50;
wren,hes 500; there was a lubrica-
tor, $16-maybe less-S12 bits, $40.
pipe casing tongs, 1885," ThereupOn
he was cross examined as follows:
These things which you shipped af-
ter the $2,5O0 had been advanced
were simply in completion OF your
well drilling outdt?" A. Yes @.
"i-nn understood and everybody else
understood, that they were held as
security for the $500 -aliancea. -
A. Yes. that was the understanding
and considered a part of IT,"
Subsequent purchasers and credi-
tors" says an author, "are bound by
equitable liens if they acquire their
rights with either actual or construc-
tive notice of them" Jones Liens
(2nd Ed Sec. SO. The evidence
shows that the contract to which
plaintiff and Enos bacem parties was
duly recorded in the Miscellaneous
Records of Wasco county and that
the defendants knew that the agree
ment had been entered into. We
think the tools shipped by Enos were
intended by the parties as a part of
the security for the payment of the
sum advanced, and such being the
case the equitable lien attached
thereto.
The deposition of Enos further
shows that the Oregon Drilling Com
pany was incorporated October 16,
1907, and on December 10th, follow
ing 1t entered into an agreement with
one of the defendants in referring to
which, he was asked: Then as I un-
derstand you at the time that this
contract before mentioned was en-
tered into by and between the Ore
gon Drilling Company and John
Marsh, the Oregon Drilling Com
pany owned all the well drilling ma
chinery, supplies, tools, apparatus
and appliances that were used in the
drilling of the we'll or wells con-
tracted for by the Dufur Oil Com
panY and YOU as the Pacific We'll