a large tract of land from the latter, of which the 20 acres so leased to plaintiff were a part; that the contract of purchase provided for installment payments to be made; that, prior to the making of the lease to plaintiff, defendant was in default under its contract of purchase; and that in June following the making of the plaintiff's lease, the Lucky Boy Oil Company brought a suit to quiet its title as against the contract of purchase held by the defendant. What be came of this suit to quiet title cannot be told from the record. It is suggested in respondent's brief that it was dismissed, but the testimony of the attorney for the Lucky Boy Oil Company was to the effect that at the time of this trial the action was still pending and untried. It is the contention of the plaintiff that the evidence was sufficient to show that it entered upon the property under a covenant of quiet possession, and that when the action to quiet title was commenced, and it was made to appear that the Lucky Boy Oil Company possessed the paramount title and right to possession, an eviction was worked which entitled plaintiff to its damages. Very important to a consideration of this question is a certain term of the lease made by the defendant to the plaintiff. It was therein provided as follows: "The first party [the defendant] agrees to protect the second party against the claims of any party or parties, should any contests ever arise as to the ownership of the same." for it was shown that, notwithstanding the suit to quiet title of the Lucky Boy Oil Company was brought in June, 1911, the plaintiff remained in possession and continued to operate the property until November of the same year. One of its managing officers, when asked whether it was not a fact that work was stopped because of the lack of funds, responded in the affirmative. There are authorities holding that, even conceding an eviction of the tenant might have followed the bringing of the action to quiet title by the owner of the paramount title, the right to take advantage of such eviction might be waived by the tenant remaining in possession. However, our conclusions do not involve any application of the holding made by such decisions. [3] Respondent has all along contended that the agreement, which we have called a lease, did not amount to such; but we think that it should properly be so termed. Any matter of mere form or designation which the parties may give to a document will not change its legal effect. In order that plaintiff might make a case sufficient against a motion for judgment of nonsuit, we think that it should have shown a breach of the express term of the contract which bound the defendant to protect it in possession. It voluntarily gave up possession, abandoned the property, and did that, too, without there being any judgment declaring the rights of the Lucky Boy Oil Company or foreclosing the interest of the defendant. The view we have taken of the main question makes it unnecessary to consider or discuss the objections urged as to the admission and rejection of testimony. The judgment is affirmed. We concur: CONREY, P. J.; SHAW, J. LESLIE v. McNEIL et ux. (Supreme Court of Oregon. Feb. 8, 1916.) ATTACHMENT 209-AFFIDAVIT FOR PUBLI CATION-SUFFICIENCY. An affidavit for publication of summons in a suit in which an attachment is levied on land must allege that the defendant has property within the state; and, it failing to contain such diction, and any judgment based thereon is void. an averment, the court does not acquire juris By this term in the agreement it may be assumed that the parties considered the matter of possible claims or contests arising to disturb the possession of the lessee. Nowhere in the complaint is it stated or intimated that any fraud was practiced upon the plaintiff by the defendant, and the evidence does not show that any false representations were made as to the quality of defendant's title to the land. The situation was, as expressed by the evidence, that the plaintiff was willing to accept the lease made to it by the defendant, resting for its security upon that term of the agreement which made the lessor bound to protect the lessee in possession against the claims of other persons. Clearly it would seem to follow by every fair inference that the plaintiff was not relying upon any implied covenants, but rather upon the specific and express terms of the agreement held by it. Under such a condition of the contract and the evidence, was the plaintiff justified in vacating the property after suit was brought to quiet title and assert the claim that it was evicted thereby? We think not. It is not shown but that the defendant at the time of this trial still possess ed at least an equitable interest in the land, and it was not shown that it would not or Plaintiff began an action for the recovery could not in some way protect the possession of money by filing a complaint and placing of its tenant. This possession had not been in the hands of the sheriff a summons to be the subject of direct attack or interference, forwarded to the sheriff of Harney county, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note. For other cases, see Attachment, Cent. Dig. 88 675-687, 690, 691; Dec. Dig. 209.] Department 2. Appeal from Circuit Court, Coos County; John S. Coke, Judge. Action by G. W. Leslie against J. D. McNeil and wife. Defendants' objections to the confirmation of a sale of attached land were sustained, and plaintiff appeals. Affirmed. mons must allege that the defendant has property within the state, and it failing to contain such an averment the court does not acquire any jurisdiction, and any judgment based thereon is void. Colburn v. Barrett, 21 Or. 27, 26 Pac. 1008. It follows that the judgment must be affirmed; and it is so ordered. MOORE, C. J., and BEAN and HARRIS, JJ., concur. where defendants then resided, and a writ, held that the affidavit for publication of sumof attachment was issued and a levy made thereunder by the sheriff of Coos county upon certain real property. The summons was subsequently served upon the defendants personally in Harney county, and they appeared specially by a motion to quash the service of summons which motion was allowed. Thereafter an alias summons was issued and placed in the hands of the sheriff of Coos county for service, and by him returned "Not found." This was followed by the filing of an affidavit for publication of the summons, since in the meanwhile the defendants had removed to Texas. The affidavit contains, among others, the following allegation: "That at the time said summons and also said alas summons was in the hands of the sheriff for Coos county, Oregon, for service, there was at each of said times a writ of attachment issued in this cause and in the hands of said sheriff for service, and that immediately upon the receipt of each of said writs of attachment the sheriff for Coos county, Oregon, did then and there execute the same and attach certain real property situated in Coos county, Oregon, which property the said sheriff now holds under and by virtue of said writ." Thereafter an order was made and entered directing the publication of the summons, and as a result of such publication a judgment was entered upon the default of the defendants, which contained the following clause: "It further appearing to the court that there being certain real property attached in this cause belonging to the defendants situated in Coos County, Oregon, it is therefore ordered and adjudged that said real property be sold as provided by statute and the proceeds thereof be applied upon this judgment." Afterward the property was sold under the judgment and plaintiff moved for a confirmation of the sale, whereupon the defendants appeared specially and filed objections to the confirmation thereof. Upon a hearing the objections were sustained, and the motion for confirmation denied and plaintiff appeals. Edward H. Joehnk, of Marshfield (Geo. Watkins, of Marshfield, on the brief), for appellant. H. G. Hoy, of Marshfield (I. N. Miller, of Marshfield, on the brief), for respond ents. JOHNSON v. MCKENZIE. (Supreme Court of Oregon. Feb. 8, 1916.) 1. MORTGAGES 32-TRANSACTIONS CONSTITUTING-DEED. Where a loan broker who secured a loan to enable plaintiff to erect a building on a lot took a conveyance of the premises under an agreement that the building should be completed, sold and the proceeds divided, and it appeared that the loan broker was not liable for any sums advanced to plaintiff and that at the time of the conveyance there was no pre-existing debt due the broker, the transaction, though the broker deemed it his duty to protect the lender, some of from the agreed purpose, cannot be construed as the proceeds of the loan having been diverted a mortgage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. 32. For other definitions, see Words and Phrases, Under L. O. L. § 804, declaring that no interest in real property other than a lease for a term not exceeding one year, nor any trust or by operation of law or by a conveyance or other power, can be created or declared otherwise than instrument in writing, no trust can arise in moneys realized from the sale of land held under a parol trust, where, after the sale, there was no declaration of trust, the parol trust being invalid. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. 17, 18.] Department 1. Appeal from Circuit Court, Multnomah County; George N. Davis, Judge. Action by Florence Johnson, formerly Florence Smith, against J. H. McKenzie. From a judgment for defendant, plaintiff appeals. Affirmed. John C. Shillock, of Portland, for appellant. Milton Reed Klepper, of Portland (J. L. Conley, of Portland, on the brief), for respondent. MOORE, C. J. This is an appeal by the plaintiff from a decree dismissing her suit for an accounting. The testimony shows that for some time prior to the fall of 1909, the plaintiff, Florence Johnson, then Mrs. Smith, and her father, H. H. Bean, had been buying lots in Portland, Or., putting up buildings thereon with money obtained from the de BENSON, J. (after stating the facts as above). We find it necessary to consider but one of the several questions presented, and that is the sufficiency of the affidavit for publication of summons. It will be noted that this affidavit does not anywhere allege that either of the defendants has any property within the state of Oregon. The paragraph quoted in the above statement is the only reference to property that is to be found in the entire document. It is not even alleged that the sheriff has attached property belong-fendant, J. H. McKenzie, a broker, selling the ing to the defendants, but simply that the officer did attach "certain real property situated in Coos county, Oregon." This court has real property thus improved, and, from the proceeds, paying the sums borrowed. The plaintiff had a contract to purchase lot 8 in the contract, furnished the money to complete the building and sold and conveyed the premises, but upon plaintiff's demand refused to account to her for any of the profits, and that $50 is a reasonable sum for his services. The material allegations of the plaintiff's primary pleading are controverted by the answer which for a separate defense asserts that the title to the lot was absolutely conveyed to the defendant who, by a parol agreement, stipulated to relieve the plaintiff of all liability to the mortgagee and on account of outstanding obligations for labor employed upon the building and material furnished for its construction, the terms of which agreement he had fully performed. block 12 in Merlow, an addition to that city, | defendant, who, complying with the terms of and applied to the defendant to secure for her a loan of $2,000, with which to erect a two-story house on the premises. He procured that sum from C. C. Marton, for which service the plaintiff promised to pay 2 per cent. for negotiating the loan and one-half of 1 per cent. for paying out the money for labor employed upon and material used in putting up the dwelling.. From the sum loaned the defendant paid, on December 11, 1909, $595.90, the remainder due to the Portland Trust Company, the owner in fee of the lot, which conveyed it to the plaintiff, who there upon executed to Marton a mortgage of the premises. The plaintiff's father, who was superintending the construction of the building upon the lot, suddenly died February 16, No written note or memorandum, signed 1910, but prior thereto the defendant advanc- by the defendant, was offered in evidence to ed to him, from the loan, $1,000. Between establish a declaration of any beneficial inthe time of Mr. Bean's death and April 28, terest in the real property alleged to have 1910, the defendant gave the plaintiff $85.40, been held by him in trust for the plaintiff. paid for labor and material $240.71, charged Her testimony, which is corroborated by that as commissions $40 and $10, respectively, for of her witnesses, conforms to the allegations securing the loan and disbursing the money, of the complaint. A fair consideration of paid $15 for an abstract of the title to the that testimony tends to prove an agreement lot, expended $4 in connection with the mak- by the parties for a joint adventure, whereing of the mortgage, and $16 for insurance by the lot was conveyed to defendant in oron the building, or $2,007.01, that sum being der that he might furnish the money neces$7.01 more than the loan. When the plain- sary to finish the building, sell the real proptiff's father died the house was unfinished, erty, and divide the proceeds. After her faand on June 9, 1910, for the express consid- ther's death the plaintiff paid $10 for paint eration of $100, she executed to the defend- used on the building, expended $90 which ant a quitclaim deed of the lot, which was she procured from her mother in paying for not filed for record until September 14, 1910, labor employed on the dwelling, and in July, in consequence of a mistake in the sealed 1911, she also paid Ward Bros. $146.36 for instrument. The defendant, between June material that went into the structure. The 13, 1910, and August 15th thereafter, paid latter payment was made long after she exout from his own money $1,061.07 in complet-ecuted her deed to the defendant. She also ing the dwelling. He, on October 5, 1910, exercised a supervision over the finishing of agreed in writing to sell and convey to the house and assisted in making a sale of Elizabeth A. Mack the real property describ- the premises to Mrs. Mack. ed, for which she stipulated to give $3,950, and then paid $100, which latter sum was given a broker for negotiating a sale of the premises. Mrs. Mack assumed the payment of the mortgage, then amounting to $2,052, agreed to pay Norman Bean, the plaintiff's brother, $135 for labor performed upon the dwelling, and executed promissory notes for $1,663, payable in installments to the defendant who, by indorsement, converted them into cash, making a profit of $C01.93 on the sale of the lot. The complaint substantially charges that in March, 1910, the plaintiff and the defendant entered into an agreement whereby he stipulated to furnish money enough to complete the house, and in consideration thereof she engaged to convey to him the lot which he was to sell and from the proceeds pay the indebtedness against the property, the expenses incurred in completing the building, retain a reasonable sum as commission for his services and pay over the remainder to her; that pursuant to that agreement she executed a deed of the real property to the A witness testified that the defendant informed him the quitclaim deed was executed by the plaintiff pursuant to an agreement that she was to have six months within which to redeem the property; but not having done so, all her interest in and right to the premises were extinguished. So far as can be discovered from a careful examination of the testimony, there was no debt due or owing from the plaintiff to the defendant when she executed to him a deed for the lot. The defendant testified that $500 of the money obtained from Mr. Marton and advanced to Mr. Bean was expended by the latter in preparing a basement on another lot, upon which no building was erected by reason of the sudden death of the plaintiff's father. The defendant may have considered a moral obligation rested upon him to see that the sum so diverted was restored to the building for the erection of which the money was borrowed, thereby augmenting the security upon the faith of which the mortgagee evidently relied when he made the loan. [1] The evidence shows the plaintiff paid the land under the provisional Constitution of PROPERTY-QUITCLAIM. $150 on the purchase of the lot, and had also discharged a few small installments of the consideration, prior to December 11, 1909, and was then owing $595.90 when the real property was conveyed to her by the Portland Trust Company. It is reasonable to suppose the value of the unimproved lot could not have been regarded as adequate security for Where the claimant of land under the proa loan of $2,000, either by the defendant or visional Constitution entered into an oral agreeMr. Marton, but that said sum was to be ment to convey it before the passage of Donation expended in erecting a building on the prem- Act Cong, Sept. 27, 1850, section 4 of which provided that all future contracts of persons enises. Whether the defendant believed he titled to the benefit of the act for the sale of land should protect the interests of the mortgagee before receiving a patent should be void, which is only conjectural, but be that as it may, agreement was evidenced by a quitclaim deed exthere was no debt, so far as can be determin-ecuted after the passage of the act and void thereunder, was enforceable against such claimed from the testimony, due from the plain-ant or his heirs after the receipt by him of a tiff to the defendant by reason of the money, donation certificate under the act, though the which he asserts, but she denies, her father issuance of such certificate or a patent thereon diverted, so that her conveyance of the lot did not of itself pass title to the proposed grancould be regarded as a mortgage, though in form a quitclaim deed. Thus no unextinguished pre-existing debt remained and no new debt was intended to be created when the conveyance was given, and for these reasons the deed was not designed as security, and cannot be declared in effect a mortgage. Grover v. Hawthorne Estate, 62 Or. 77, 114 Pac. 472, 121 Pac. 808. tee. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. 37.] 3. DEEDS RECITAL OF "ETC." 95 - PURPOSE ing the recital of the purpose of a deed, if it is The use of the abbreviation "etc.," followto be accorded any meaning at all, signifies "and other like purposes." [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 238, 241-254; Dec. Dig. 95. For other definitions, see Words and Phrases, First and Second Series, Etc.] 4. RELIGIOUS SOCIETIES 17-CONVEYANCE FOR CHURCH PURPOSE-"PERPETUAL TRUST" -TRUST. For a conveyance to create a perpetual trust by the expression of the purpose for which the deed is given, it is necessary that an exclusive purpose be specified and appropriate lanO.guage used to express or import a perpetual use of the land for such purpose, such as, that it shall be used for the purpose "only" or "forever" or "for no other purpose." [Ed. Note. For other cases, see Religious Societies, Cent. Dig. §§ 109, 110; Dec. Dig. [2] The complaint does not aver nor does the plaintiff's testimony show that after selling the real property and obtaining the consideration for it, the defendant, pursuant to the oral agreement, or otherwise, declared a trust as to the money in plaintiff's favor. There was therefore a failure to establish an express trust in the real property. L. L. & 804; Cooper v. Thomason, 30 Or. 161, 45 Pac. 296; Barger v. Barger, 30 Or. 268, 47 Pac. 702; Parrish v. Parrish, 33 Or. 487, 54 Pac. 352; Richmond v. Bloch, 36 Or. 590, CO Pac. 385. Though a different rule may ob-17.] tain in other jurisdictions, the principle is 5. RELIGIOUS SOCIETIES FOR CHURCH PURPOSES-TRUST. settled in Oregon that a parol trust in a sum Where a deed recited that the land conof money, obtained from the sale of land veyed was "for the purpose of a parsonage, which was made pursuant to an oral agree-church, etc.," such recital did not create a ment to hold the fund for the beneficiary, can arise only by a specific declaration of the trustee to that effect and made after the sale. Cooper v. Thomason, supra; Martin v. Martin, 43 Or. 119, 72 Pac. 639. In the absence of an averment of that kind substantiated by adequate proof, the trial court committed no error in denying the relief sought. The decree is therefore affirmed. 17-CONVEYANCE trust compelling the use of the land conveyed for such purposes only, since such recital did no more than to express the motive of the grantor, or announce the intention of the grantee, and was not appropriate for the creation of such a trust. [Ed. Note.-For other cases, see Religious 6. DEEDS 124 - CONSTRUCTION RESTRIC Under the policy of the law favoring the vesting of estates, all doubts in a deed convey BURNETT, HARRIS, and MCBRIDE, JJ., ing a fee, should as a rule be resolved in favor concur. STANSBERY et al. v. FIRST METHODIST of a free user of the property and against the restrictions. [Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 345-355, 416-428, 434, 435, 439, 452; Dec. Dig. 124.] 7. RELIGIOUS SOCIETIES 18-CONVEYANCE FOR CHURCH PURPOSES-LENGTH OF USER. (Supreme Court of Oregon. Feb. 1, 1916.) Where a deed recited that the land con1. DEDICATION 12-PAROL DEDICATION- veyed was to be used for a church and parsonPROVISIONAL CONSTITUTION-TITLE. age, and the consideration partially was that There could be no binding parol dedication the grantee was to so use the land, a user in of land to a charitable purpose by one holding conformity for more than 60 years, fully satis fied such obligation under the rule that long-| In Banc. Appeal from Circuit Court, nomah County; W. N. Gatens, Judge. A Methodist mission church was established in 1848, and for a number of years was the only Methodist church in Portland. On November 5, 1850, Daniel H. Lownsdale, Stephen Coffin, and William W. Chapman exMult-ecuted and delivered to James H. Wilbur, the pastor of the church, a writing as follows: Action by S. A. Stansbery and others against the First Methodist Episcopal Church, a corporation, and others. Judgment for defendants, and plaintiffs appeal. Affirmed. "This indenture made and entered into this 5th day of November, A. D. 1850, between Stephen Coffin, Daniel H. Lownsdale, and William W. Chapman, proprietors of Portland, Washington county, Oregon territory, of the first part, and James H. Wilbur, trustee of the Methodist Episcopal Church of the same place, of the other part, witnesseth, the party of the first part for and in consideration of the sum of one dollar and divers other good causes to confirm and quitclaim unto the said party of the them, there and thereunto moving doth release, second part the following described town property in the said town of Portland, to wit: Lots Nos. one (1), two (2), six (6), seven (7) and said town for the purpose of a parsonage, eight (8), in block No. twenty-three (23), in the church, etc. And the party of the first part covenants to and with the party of the second part them shall obtain a fee-simple title to said propthat if at any time thereafter they or either of erty from the United States, they will convey the same to the party of the second part by deed of the first part have hereunto set our hands of general warranty. In testimony the party and seals the day and year aforesaid." This suit involves lot No. 8, the north half of lot No. 7, the west 20 feet of lot 1, and the west 20 feet of the north half of lot 2, in block 23, of the city of Portland, Or. The property is located at the corner of Third and Taylor streets, and is commonly known as the Taylor Street Church. The plaintiffs are members of the First Methodist Episcopal Church of Portland, and the defendants are the First Methodist Episcopal Church, a corporation, the trustees of the corporation and the pastor of the church. The persons and bodies vested with authority according to the laws of Methodism are: The general conference, the annual conference, the quarterly conference, the official board, the trustees, the bishop, the district superintendent, and the pastor. The general conference is the supreme lawmaking body and enacts the north half of block 23; block 23 is bounded The five lots cover a little more than the laws, rules, and regulations for the Methoon the east by Second street, on the north by dist Episcopal Church; the annual conference is next in point of authority; the quar-street. On March 11, 1852, Daniel H. LownsTaylor street and on the west by Third terly conference is the governing body for a dale filed on land, including block 23, under church; the official board with certain limber 27, 1850, commonly called the donation the terms of the Act of Congress of Septembur assigned all his interest in the lots by law. On September 10, 1853, James H. Wilmaking the following writing: "I hereby relinquish, assign, make over and convey all my right, title and interest to the within described lots to Clinton Kelly, A. A. Durham, Perry Prettyman, Albert Kelly, John chanan, trustees of the church property within D. Dickenson, Samuel Nelson and P. G. Bndescribed in the city of Portland, Oregon territory." On October 17, 1860, a donation certificate was issued to Daniel H. Lownsdale reciting that he was entitled to a patent, but a patent was not issued until June 6, 1865, being subsequent to his death, which occurred in May, 1862. On June 1, 1867, the trustees of the church filed articles of incorporation, which recited: itations takes the place of the quarterly conference during the interim between sessions of the latter body. The personnel of the official board and the quarterly conference is the same. The trustees hold the property for the society. The general conference selects and assigns the bishops who are vested with power to consolidate societies, fix the boundaries of districts, and make appointments of preachers. The district superintendent "presides over the quarterly conference when present." Upon the consolidation of two or more societies "the duty and responsibility of regulating the place where the principal activities of the church should take place and the public worship should be conducted" are imposed "upon the quarterly conference with the consent of the pastor." The plaintiffs are seeking to enjoin the defendants from closing the "church That the name assumed by the corporation is edifice at the corner of Third and Taylor the "First Methodist Episcopal Church in Portstreets, and from preventing the plaintiff's land, Oregon," and that the object "of this corand the other members of the said congrega-izations on lots Nos. 1, 2, 7, and 8 in block 23 poration shall be to continue the church organtion from entering the same and holding re- in the city of Portland, to erect a meeting house ligious services therein, and that they be thereon, and to hold said premises in trust, that enjoined from selling, leasing, or otherwise they shall be used, kept, maintained and disposed of as a place of divine worship for the use disposing of, or using the said property, ex- of the ministry and memberships of the Methocept for a house of public worship, or from dist Episcopal Church in the United States of otherwise or in any other manner diverting America, subject to the discipline, usage and the said property from the uses to which it time to time authorized and declared by the ministerial opportunity of said church as from was dedicated and for which it is held in General Conference of said church, and the antrust by the said defendants." nual conference in whose hands the said prem |
