Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-25
Brown V. Truax, Union County.

Frank Brown, as administrator of
the estate of William Dye, deceased,
respondent, v. Franklin Truax, appel
liant. Appeal from the circuit court
for Union county. The Hon. j. W.
Knowles, Judge. Argued and submit
ted at Pendleton. Oregon, May 2, 1911
Cochran & Cochran, for respondent
Turner oliver, for appellant. Nc
Bride, j. Affirmed.
This is an action for claim and de-
livery, arising out Of the following
facts: In October, 1908, William Dye
was the owner of quantity of cord
wood situated near Kamela, Union
county and entered into contract
with Denver Charlton to haul and de-
liver 1t at the railroad track at KAN
ella, at the agreed price of $1.50 per
cord. 1t was agreed that Charlton
should hold possession of the wood
until the price of hauling should be
paid. In December, 1908, Dye disap-
peared, and in May, following, por-
tons of his dead body were found and
identified, and plaintiff was appoint
ed his administrator. The hauling
was not completed at the time Of
Dyes disappearance, but about 30 or
40 cords were hauled thereafter, but
without knowledge by Charlton Of
the death of Dye About April l.,
1909, Denver Charlton left the state
and before departing placed his fa-
ther, H. X. Charlton, in possession Of
the wood. with instructions to hold
1t for him as security for his claim.
The administrator subsequently de-
manded possession from ". K. Charl-
ton, who refused to deliver the wood,
and thereupon filed in the county
court a complaint in the name of the
state, with himself as relator,
charging Charlton with contempt;
and while Charlton was absent, at
tending to contempt charges, the ad-
ministrator sold, and caused to be
shipped away, all but 92 cords of the
wood. The county court dismissed
the contempt charge, and found that
Charlton was entitled to hold posses
sion of the property to enforce his
sons lien. Thereupon Charlton adj
vertised the wood for sale, at auction
to satisfy the lien and defendant be-
came the purchaser at $4.00 per cord
Plaintiff brought this action to re.
cover the property and for damages
No demand for possession of the
property was made upon defendant
before the action was begun. Deien-
dant answered, pleading (D the gen
eral issue; (2) setting up the con.
tract between Dye and Denver Charl
ton and claiming lien by virtue Of
such contract and also by virtue o.
Sec, 7452 L. o. L., giving a possessory
lien to laborers and others for theil
just and reasonable charges for la
Dor performed At the close OF thu
testimony, the court directed the jurl
to find a verdict for the plaintiff fol
whatever they should find to be thu
value of the wood Other facts ap
pear in the opinion. Defendant ap
peals.
Mcbride, j: We are compelled Il
affirm the judgment in this case
The finding of the probate court tina
Dye was dead and the appointment o
an administrator was, in the absence
Of any evidence to the contrary, con
elusive proof Of that fact. We thinl
the evidence tended to show that Den
yer Charlton had a lien both b,
agreement and under Sec. 7452 L. @
L., but being Of record a claim shoul,
have been presented TO the admins
traitor before any attempt was mad
to foreclose. In Teel v. Winston, 2
Or. 4S9, this court held that a mort
gage claim against real propert
could be foreclosed without presenta
ton. and the authorities are fairl
uniform that mechanics lien claim
and other claims OF record need no
be presented for allowance. Blu
claims OF the character Of the one a
bar, arising by operation Of law o