Image provided by: University of Oregon Libraries; Eugene, OR
About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (March 20, 1911)
MOE TWO DAILY CAPITA! JOURNAL, SALEM, OREGON, MONDAY, MARCH 20. 1811. the capital journal E. HOFER, Editor and Proprietor. B. M. HOFER, Manager Independent Nwpaper Devoted to American Principle tod th Piuni and Dwrionntntof All Oregon Vior. PubUibed Eror Evening Except Bandar, Salem, Ore. JZX" SUBSCRIPTION RATES I ( rLSV. OnnvUbly in Advance) V '"TTr Dally, by Carrier, per year 6.00 Per month 60c V) V .'lat'j Bailr, by Mail, per year , - 4.00 Per month 86c "T ;firNi Veekly, by iUll, per year- . LOO 81 amntha JOe I rUIX LEASED WIRE TELEGRAPH REPORT SUPREME COURT DECIDES A NICE POINT ON SERVICE Title Conveyed by Tax Sale Is Void Because Proper Ser vice of Complaint and Summons Was Not Made on Min ors, and Being Minors They Were Not Bound by Adverse Possession Being Legally Incapable of Assenting Thereto. Purify Your Blood The cause of pimples, bolls and oth er eruptions, as well as of that tired feeling and poor appetite, which are so common In the Fpring, Is Impure and fmpoverlFhed blool. The best wuy t) purify and enrich the blood, as thousands of people know by experience, is to take Hood's Sarsapanlfa Accept no substitute, but Insist on having Hood's. Get It today In usual liquid form or chocolated tablet imwn Snrsataba, Cobb ts. Kloslrrman, rt nl, Multno mah County, S. D. Cobb respondent, v. Sophia K. KloBterman, John Klosterruan, Mary C. Mayer and F. J. Alex Mayer, appellants. Appeal from the circuit court of Multnomah county. Hon. John B. Cleland, Judge. Argued and submitted March 1, 1911. Veazle and Veazla for appellants. S. B. Hus ton,' for respondent. Burnett, J. Affirmed. On December 31, 1906, the defend ants conveyed certain real property to the plaintiff by a deed containing a covenant that the grantors were seized In fee simple of the real prop erty and that they and their suc 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 a breach thereof that the defendants were not the owners of the real property but that Elmer Peck, Lloyd Peck and M. Ia Peck were such owners and had aued the plaintiff to quiet their title In the real property and to prevent his ouster as a result of their suit he bad paid for their outstanding claim the sum of $1000, which de fendants had not repaid, and for which sura he demands Judgment. The defendants answered denying the title of the Pecks and the com pulsion Inducing the plaintiff to buy In their Interest. Tbey affirmatively allege that "Elmer Peck and Lloyd Feck are the children and heirs at law of C. W. Peck, deceased and M. Ij. Peck Is the widow of said C. W. Peck." The answer further alleges In substance that during the life of C. W. Peck and while he was the owner of the real property In ques-t tlon he, with his wife, M. L. Peck, executed two mortgages upon the properly, the first of date September 6, 1890, to Phlllppina Wolf, for $1400, and the second of date August 9, 1892, to B. H. Bowman for $8000; that afterwards C. W. Peck died and M. Lk Peck, his widow, was appointed aa administratrix, In which capacity she continued until the final settle ment of the estate August 6 1896; that on March 30, 1894, Bowman, the second mortgagee, commenced a suit for the foreclosure of his mortgage, making M. L. Peck, In her Individual capacity and as administratrix, Elmer Peck, Lloyd Peck, Phlllppina Wolf et 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,: "I, Penumbra Kelly, Sheriff of said state and county do hereby certify that I served the within summons within said state and county on the 16th day of April A, D 1894, on the within named defendants, M. L. Peck and Lloyd Peck, Elmer Peck and M. L Peck as administratrix of the es tate of C. W. Peck, deceased, by de livering a copy thereof, prepared and certified to by me as Bherlff to M. I Peck Elmer Peck and M. L. Peck as administratrix In person. "PENUMBRA KELLY, "Sheriff of Multnomah County, "By ELMER S. M. MYER, Deputy." The answer goeB on further to state In substance that on June 19, 1894, upon the application of the plaintiff Bowman the circuit court appointed aa guardian ad litem for Lloyd Peck and Elmer reck, J. R, Stoddard, who tiled an answer for the minors deny ing any Information sufficient to form a belief as to the allegations of the foreclosure complaint The an swer In the case at bar further re cites that Phlllppina Wolf appeared In the foreclosure suit and set up her mortgage asking for a decree of fore closeurs; that a decree was Anally rendered foreclosing both mort gages; that an execution was Issued; that the property was sold to one M. A. Btratton for $400; that the sale was confirmed; that Stratton as signed his certificate to the First National Bank of East Portland; that on March 13, 1896, the sheriff of Multnomah county executed and de livered to the bank his official deed to the property; that thereupon the bank took possession of the property, claiming title thereto under the sale and retained its possession until its conveyance afterwards mentioned. The history of the conveyance from that on until it was Anally conveyed to the defendants, Sophia H. Kloster man and Mary C. Mayer, March 11 1899, is then recited and it is al leged "that the said possession of said property by each and all of the above named corporations and per sons was open, notorious, exclusive and under claim and color of title and hostile to all other persons, and was well known during all of said times to the said M. L. Peck, Elmer Peck and Lloyd Peck, and was at no time disputed or questioned by them or any of them, but on the contrary the said M. L. Peck Elmer Peck and Lloyd Peck acquiesced in and con sented to said sheriff's sale and said taking and holding possession there under, and all the claims and acts of the persons claiming title under said salo which are mentioned In this an swer, until the bringing of the suit to quiet title mentioned in the com plaint herein" which, It was stipulat ed, occurred August 28 1908. The defendans futrther plead that they and their predecessors have paid sundry taxes on the premises, setting out the amounts, and some street Improvement Hens. and stated that at the time of filing the suit to quiet title there were valid subsisting Btroet Hens on the property aggregat ing more than $3000 which are yet unpaid. They further state In sub- Btance that the rents and profits of the property are not sufficient to keep up the necessary repairs; that the use and occupation of the property is of no value; and that at the time of the conveyance to plaintiff the property was not worth more than $4000 and subject to the street Im provement liens Is not now worth more than $5000. The reply admits the execution of the mortgages and the commence ment of the suit to foreclose, but de nies that the summons was served upon any of the Pecks. As to the matter in the answer (ending to show title by adverse possession up to the suit to quiet title, It denies that the adverse possession was known to or acquiesced In by any of the Pecks and alleges that Elmer Peck and Lloyd Peck were both min ors incapable of consenting to or be ing bound by such adverse posses sion. It is stipulated that at the commencement of the suit to quiet title as plaintiffs August 28, 1903, Lloyd was 12 years and 6 months of age and Elmer was under the age of 21 years. This action resulted in a Judgment In the circuit court In favor of plain tiff and the defendants appeal. Burnett, J.; In the light of the stipulation about the ages of Elmer Peck and Lloyd Peck the eldest of them was about 7 Mi years of age on April 16. 1894, the date mentioned in the return of the sheriff upon the summons In the foreclosure suit Section 65. L. O. L. provides that a summons shall be served upon a minor under the age of 14 years by delivering a copy thereof, together with a copy of the complaint, certi fied as la therein required, "to such minor personally, and also to his father, mother, or guardian, or If there be none within this state, then to any person having the care or con trol of such minor, or with whom he resides or In whose service he is employed." Section 398, L. O. L, pro vides that "when there Is more than one defendant In the suit, service of the summons may be made by serv ing only one copy of the complaint. the same to be served on the defend ant designated by the plaintiff or bis attorney, by a direction Indorsed on such summons." In Harris v. Sergeant, 37 Or. 41, the return upon the summons reads thus: "I hereby certify that I received the within summons on the ninth day of April A. D. 1889, and served the same on the twenty-fifth day of April, A. D: 1889, In Benton County, Oreogn, on the defendants, S. S. Harris, L. E. Harris and L. M. 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 a 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. O. Coal, county clerk of Polk county, Oregon." Certain real prop erty was sold by virtue of a 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 a 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 It 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 there- turn the most favorable construction possible. It would be valid as aaglnst 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 a minor under the ages of 14 years. Within the meaning of Harris v. Sargeant supra, the circuit court had no Juris diction to render a 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; It would not give title to such a pur chaser as against the minors. Hence when claiming under the deed to him- i 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 mortages given by their fath er, toegther 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 pelled 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 well set tled 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. 17, L. O. L.; Northrop v. Marquam, 16 Or. 173. It 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 $1000 and that is the Bieakr ure of damages for the breach of the covenant if nothing else Is shown. Old Colds Do not know what to take? Then why not find out? Your doctor knows. I .paw If all at. mi IV him. If he says, "AVer's Cherry Pectoral," then take it If he says something else, take that Do as he says. J. C. .rO , CASTOR I A For Infantt and CMldren, The Kind You Have Always Bought Bear the Signature As against this the defendants here claim that M. L. Peck, the widow and administratrix, was properly served with the summons in the foreclosure suit and hence she Is bound by that decree and that in any event the plaintff here could not recover for any amount which he paid to her. However, if the' amount paid was ap portlonable at all among the Pecks there Is nothing in the pleadings here by which the court could make such an apportionment The defendants here do not In their answer dispute the amount of the payment; they only contest the liability or compul sion of the plaintiff to pay at all. If they Intended to attack the part of the payment going to Mrs. Peck, the widow, they should have framed their pleadings accordingly, but they have not done so. Of course by settling the suit with the Pecks without notifying the de fendants here and calling upon them to defend in that suit the plaintiff as sumed the burden in this case of proving paramount title in the Pecks, to which he yielded, but the superior estate of at least Lloyd and Elmer Peck Is established beyond question, because the court never acquired Jurisdiction over them to divest them of their property. The Judgment is affirmed. in 4 tt th "toe day .. jnd I which hi mar ltd Log In oil 1J.V a roue to I I nonneasii u ie. iaoded, still tt Kne easteri luburba of I 1 citf Ijyed my tdtr"J le lnfleldP"Tbe IrlsmifcftT natas flown out with an untrustworthy en gine and before he could turn his planes and get started for the grounds, the thing had gone dead and plujfin down In the wheat stubble le space of tbout ten mlrul around the race track thought accident had proven serlouf was with this Idea that Colojf, JR.' Green brought. his automob requisition, and with several o flcials of the meet aboard ft . r r LP: bu' Mr. t o e's stand. ?. "do you really did." to investigate. His mac: I lowed by anothjrearin i cirrylnjupplj lr re slble U fet pVJwT howevVli'und q his prokyr stil I uious l I .in. IV I wr p frob ,i til Jwis gl prettj funcertaiit , lei? ( with 4 i vV aboard ! L i i tl IX III f While the "fJW! way, wie gur mour that hi that turn" i iruido the crt bend of that, coolest man! made It p iii.ij. i, " MUW jute ed at his ef,, rne srovern Allison Mayfyw, .id courr- toryr 1 ft 1 a J J i THE RUSH TO THE IDITAROD HAS STARTED i UNITED PBESS LEASED WIRE. Seward, Alaska, March 20. The spring rush to Idltarod started In full vigor today and scores are pack ing outfits over the trail to the big camp. It is estimated that there will be 6,000 persons in the Iditarod dis trict by May 30. The adventurers are going over the White trail in six-dog sledges carry ing supplies for five weeks. c A Gun to Shoot Airships. UNITED PBEH8 LEASED WIKE. Washington, March 20. A special gun and projectile to repulse aero plane attacks has been manufactured by ordnance officers of the United States government. It Is reported today that the gun will be mounted at Sandy Hook where experiments will be made with it. EASTERN MERCHANTS GOING TO JAPAN UNITED I'BKSS LEASED WIRE. San Francisco, March 20. Fol lowing the lead of Pacific coast com mercial, men, a body of merchants fnom Chicago and Omaha are here today on their way to Japan and China to establish closer trade re lations and to further peace pros, pects with those Oriental countries. They sail on the Mongolia Tuesday. uncertain aboard. ne Dink Jieadlngr for the Wid. straight for the track, kei unirorm height until wlthli of the grandstand. Then nil what he took in the gatbferl lo oe a suitable spot for with his engines working , speed clutch, glided earttn Maohina Goes A-vvreck. too late ne saw tnat nesin culated his distance froi tl fence, and that he would asl oDsiacie ir sometmns via Toward averting the thrfiten ter, therefore, he turnedfon h1 tie again, leaped the fist fe turned his planes for aflandli up the running course, fl The t( short for the- blf craft & Could- Hav Wade Turn. was still undo , had told Bey e able to main that he couli d the aouthea was easily thi net). Also hi ne enjoyed th been perpetrat than he. gether Witt of the itati arker o. sh, garni ild Sey- t make coulc theasl y th (, D4 il thj trat- It ai ed th Ion Bi rles Oi e gov- atulate and had 11 pleasec way rial .vn and olnt tot net Mml lal, re' ' stand nd po d hlrai of thy hum era dlvi ever hurl doW non a . . . .J me ki iiia.-umij been mortally ce Into The fenc llngr from the I the track. s seat and ss the fence. emalnlng st tnougnt tl hurt Simon, S 1 t . 1 Kl I i it i i ! in I I Frin is i r a fellow I re ore fc'clc' JVrei! n etior threi it hi mis: hat 9, wa i of ghted' r, ato: ten at feet fi; gran lesa on hrs at.nltntll started al Garros, 4h( aocircled the befoYe th ait old wheal e northeast om the scent flight, whili Ine Irar "Nil' rh( ung breath- -within about NO MORE GRAY HAIR It Is easier to preserve the color of the hair than to restore it, although it is possible to do both. Our grandmothers understood the secret. They made and used a "sage tea," and their dark, glossy hair long after middle life was due to this fact. Our mothers nave gray hairs be fore they are fiftj, but they are begin ning to appreciate the wisdom of our grandmothers in usinj? "sage tea" fur their hair, and are fast following suit The present generation has the advan tage of the past in that it can get a ready to use preparation called Wyeth's Sage and Sulphur. As a scalp tonic and color restorer, this preparation is vastly superior to the ordinary "sage tea'' made byour grandmothers, and it can be bought for 50 cents and $1 a bottle at almost any first-class drug store, or will be sent direct by the Wyeth Chemical Company, 74 Cortlandt St., New York City, upon receipt of price. . J. C. PERRY. Wants Bids for oBnds. The city of Wllamma is calling for bids on $15,000 10 and 20-year op tional 6 per cent bonds, bearing dates of March 1, 1910, Interest payable semi-annually. Bids to be opened April 10, 1911. For further Infor mation write F. E. Sherwln, city re corder. F. E. SHERWIN, Recorder for City Willamlna. 3-7-lmo Got It at Dr. Stone's Drug Store A Dreadful Sight. To H. J. Barnum, of Freevllle, N. Y., was the fever sore that had plagued his life for years In spite of many remedies he tried. At last he used Bucklen's Arnica Salve" and wrote: "It has healed with scarcely a scar left." Heals burns, boils, ec zema, cuts, bruises, swellings, corns and piles like magic. Only 25c at J. C. Perry's. o Notice of Intention to Improve Twelfth Street. Notice is hereby given that the common council of the City of Salem, Oregon, deems It expedient and pro poses to Improve Twelfth street, In the City of Salem, Oregon, with con crete pavement from the Bouth line of Bellevue street to the south line of Mlssfon street at the expense of the adjacent and abutting property within s:.Id limits, and according to the plans and specifications adopted for said improvement and on file at the office of the city recorder, which said plans and specifications are hereby referred to for a more specific and detailed description of said lm provement.and are hereby made a part of this notice. This notice Is published fen (10) days pursuant to the order of the common council, and the date of the first publication thereof Is the" 14th day of March, 1911. Remonstrances may be filed against said improvement within ten (10) days from the last publication of this notce and In the manner pro vided by the city charter. CHAS. F. ELGIN. 3-14-llt City Recorder. Notice of Intention to Improve Thirteenth Street. Notice Is hereby given that the common council of the City of Salem, Oregon, deem it expedient and pro poses to improve Thirteenth street In the city of Salem, Oregon, with con crete pavement from the north line of Ferry street to the south line of Marion street at the expense of the adjacent and abutting property with in said limits and according to the plans and specifications adopted for said improvement and on file at the office of the city recorder, which said plans and specifications are hereby referred to for a, nrre specific and detailed description of said Improve ment, and are hereby made a part of this notice. This notice Is published for ten (10) days pursuant to the order of the common council, and the date of the first publication thereof Is the 14th day of March, 1911. Remonstrances may be filed against said improvement within ten (10) days from the last publication of this notice and In the manner pro vided by the city charter. CHAS. F. ELGIN, 3-14-llt City Recorder lilt, BEST1 STRONGEST ANDMosj DURABLE SEWFP I PIPE MANUFACTURE,, aE CEMENT MADE GLAZED SEWER PIPE It will nav vnn i : i vestigate before placing your order for Sewer Connections. Salem Sewer Pipe Co. I S3 LIBERTY STREET Working the teams In the rain means sore necks, and Is profitable neither for horse nor driver. A Reliable Remedy Ely's Cream Balm li quickly absorbed. Gives Relief at Once. It cleanses, soothes, heals aud protects the diseased mem brane resulting from Catarrh and drives away a Cold iu the Head quickly. lie-tlflV VFMPO stores the Henses of il M I IbV bit Taste and Smell. Full size 50 cts., atDrng gists or by mail. Li liquid form, 75 cents. Ely Brothers, 60 Wurren Street, New York. CATARRH 8 111 Ji -mm FAIR 6 gal. GROUND FEED GROCERY Kerosene (bring can) G5e I Extra choice Sugar Cured, government inspected Hams, per lb Extra large meaty Pick-Nick Hama 14 He 6 lbs. pure Lard Best Valley Flour, sk....$l.i; Best Eastern Oregon Blue Stem Flour ij Choice heavy Bacon, lb i;e 11 lbs. White Beans 5o 5 1-lb. pkg. Corn Starch...., 5 cans nice Table Peaches. 5l)t Garden Seeds 2 large full size 5c pkg 5t 2 large full size 10c pkg..,15 10-lb. sk. best Eastern Corn meal. . .; 23c 2 lbs. best Cream Cheese... 35c 3 cans Buttercup Milk 2J 60 lbs. full weight Bran.... 75 Shorts per sack $u; Telephone Orders liromptlj delivered. ( Give me a trial for I can save you money. R. N. MORRIS Phone 1407. Children jry FOR FLETCHER'S C ASTO Rl A Get it at Dr. Stone's Drug Store Portland's Popular Fire-Proof Hotel THE OREGON The House of Comfort Combined With Elegance Our Rathskeller Grill finest dining service in city, with Hawaiian orchestra from 6 to 12 p. m, Most perfectly furnished, moderate priced, modern hostelry in the metropolis of tne Northwest. WRIGHT & DICKINSON HOTEL CO. Owners and Managers v Also Operating Seattle Hotel, Seattle. I FRENCH FEI1LE I PILLS. ltt KCWBTIU.lt. ''' tlT i fct.Mpki. Will trad tarn M trial. I kMi4taf ru.iwl. KaaplM.rf. r oracaM turn a ikM. m1 mi aHn M ! mcoical CO., am lAArT. I UNITCO I Sold is Meat bf Dr. 5. C Sloan Xotlce to Contractors. Sealed bids will be received at the office of the Board of Trustees of the Eastern Oregon State Hospital, at the Capitol Building, Salem, until 12 o'clock noon, Monday, March 20th, for the following labor and materials for the Eastern Oregon State Hospi tal: Laying pipe line approximately 4500 feet, for water supply to said Eastern Oregon State Hospital. All to be done In accordance with plans and specifications now on file with the Clerk of the Board at the Execu tive office Capitol Building, Salem, and with Chas. A. Murphy. SuDerln- tendent of Construction of the East- em Oregon State Hospital, at Pendle ton, Oregon, and from whom further Information can be obtained. All bids must be drawn in accordance with the specifications, and the Board re serves the riglit to reject any or all bids. By order of the Board of Trustees of the Eastern Oregon State Hospi tal. " OSWALD WEST. Governor. THOS. B. KAY, State Treasurer. Attest: R. A. WATSON, Clerk of the Board. Mar 8-13-14-15-18 THE HELP COLUMNS That local Issue which we call the tariff Is becoming more than a local Issue It Is a real family affair. "Help Wanted" and "Situations Wanttsd" are columns of great usefulness to the masses of the people. On account of the wide circulation of the "Journal" its want ads attract greater atten tion and bring more results than its contemporaries. It will pay you to remember to place your help ads in the "Journal". t X I 4 m