Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-20
Cobb VS.. KIOsterman, ct al, MuItnO.
nah County.

nah County.
S. B. Cobb respondent, v. Sophia
K. Klosterman, John Klosterman
Mary G. Mayer and F. ]. Alex Mayer
appellants. Appeal from the circuit
court Of Multnomah county. Hon
John B. Cleland, Judge. Argued and
submitted March 1, 1911. Veazie and
Veazie for appellants. s. B. Hus-
ton, for respondent. Burnett, J.
Affirmed.
On December 81, 1906, the defend.
ants conveyed certain real property
to the plaintiff by deed containing
covenant that the grantors were
seized In fee simple of the real prop.
erty and that they and their sue
cessors would warrant and forever
defend the same against the lawful
claims and demands of all persons
whomsoever except certain municipal
liens Of the city Of Portland. In this
action upon that covenant the plain
tiff alleges in substance as breach
thereof that the defendants were not
the owners Of the real property but
that Elmer Peck, Lloyd Peck and NJ
l.. Peck were such owners and had
sued the plaintiff to quiet their title
in the real property and to prevent
his custer as result Of their suit
he had paid for their outstanding
claim the sum of $1,000, which de-
PENDANTS had not repaid, and for
which sum he demands Judgment.
The defendants answered denying
the title Of the Pecks and the COM
pulsion inducing the plaintiff to buy
in their interest. They afflrmatively
allege that ELMER Peck and Lloyd
Peck are the children and heirs al
law Of G. w. Peck, deceased and M
J.. Peck is the widow of said G. W.
Peck" The answer further alleges
in substance that during the life OF
@. W. Peck and while he was the
owner Of the real property in ques-
tion he, with his wife, M. L. Peck
executed two mortgages upon the
property, the first of date September
5, 1890, to Philippine Wolf, for
S1400, and the second of date August
., 1892, to B. H. Bowman for $4,000;
that afterwards G. W, Peck died and
M. L. Peck, his widow, was appointed
as administrative, In which capacity
she continued until the final settle.
ment Of the estate August 1896;
that on March 30, 1894, Bowman, the
second mortgage, commenced suit
for the foreclosure OF his mortgage
making M. l.. Peck, In her individual
capacity and as administrators, Elmer
Peck, Lloyd Peck, Philippine Wolf
ct al, defendants, As to the Pecks
the return OF the sheriff upon the
summons in that suit is as follows:
'State of oregon, Multnomah county
ss,.
II, Penumbra Kelly, Sheriff of said
state and county do hereby certify
that served the within summons
within said state and county on the
18th day OF April A. D., 1894, on the
within named defendants, NJ. l.. Peel
and Lloyd Peck, Elmer Peck and NJ
L. Peck as administrator of the es
tate Of @. w. Peck. deceased, by de,
livering a copy thereof, prepared ant
certified to by me as sheriff to NJ. L
Peck Elmer Peck and NJ. l.. Peck a,
Administrative in person.
"PENUMBRA KELLY.
Sheriff Of Multnomah County
by ELMER s NJ. MYER, Deputy.
The answer goes on further to stat,
in substance that on June 10, 1894
upon the application of the plaintiff
Bowman the circuit court appointed
as guardian ad litem for Lloyd Peel
and Elmer Peck, ], r. Stoddard, who
filed an answer for the minors deny,
ing any information sufficient t
form a belief as to the allegations o.
the foreclosure complaint The an
swer in the case at bar further re,
cites that Philippine Wolf appeared
in the foreclosure suit and set up hel
mortgage asking for a decree of fore,
closeursi that decree was finally
rendered foreclosing both mort
cages; that an execution was issued
that the property was sold to one NJ
A. Stratton for $500; that the sal,