Scott-McClure Land Co. v. City of Portland , 62 Or. 462 ( 1912 )

MR. Justice McBride

delivered the opinion of the court.

A single question of law is presented on this appeal: Whether or not the lien docketed on June 14, 1906, and under which plaintiff derives its title, is superior to the lien docketed on August 10, 1905, under which defendant is attempting to sell the property. In other words, did the sale under the junior lien extinguish the prior lien? Both liens are identical in character, being for street improvements.

The question presented is new in this State; but, after carefully considering it, we are of the opinion that it was not the intent of the provisions of the charter that a sale upon a junior lien should extinguish a former lien of a kindred character. Such a construction would work great inconvenience in many instances, while a purchaser under a junior lien always has it in his power to pay off the prior lien, which presumptively has increased the value of his property to an extent at least equal to its amount. The following cases sustain this view: Brady v. Burke, 90 Cal. 1 (27 Pac. 52) ; Philadelphia v. Meager, 67 Pa. 345; Bell v. City of New York, 66 App. Div. 578 (73 N. Y. Supp. 298) ; Des Moines Brick Mfg. Co. v. Smith, 108 Iowa, 307 (79 N. W. 77). The contrary seems to be held in Burke v. Lukens, 12 Ind. App. 648 (40 N. E. 641: 54 Am. St. Rep. 539), but we cannot agree with the reasoning of that case.

The order of the circuit court is affirmed. Affirmed.