secured transactions sales of accounts contract...

Chapter 791963 REPLACEMENT PART

Secured Transactions Sales of Accounts Contract

Rights and Chattel Paper

SHORT TITLE APPLICABILITY ANDDEFINITIONS

791010 Short title791020 Policy and scope of ORS 791010 to 795070791030 Accounts contract rights general intan

gibles and equipment relating to anotherjurisdiction and incoming goods alreadysubject to a security interest

791040 Transactions excluded from ORS 791010 to795070

791050 Definitions and index of definitions791060 Definitions account contract right

general intangibles791070 Definition purchase money security in

terest

791080 When after acquired collateral not securityfor antecedent debt

791090 Classification of goods consumer goodsequipment farm products inven

791100 Sufficiency of description791110 Applicability of bulk transfer laws791120 Where collateral is not owned by debtor791130 Security interests arising under ORS

721010 to 727250 on sales

VALIDITY OF SECURITY AGREEMENTAND RIGHTS OF PARTIES THERETO

792010 General validity of security agreement792020 Title to collateral immaterial792030 Enforceability of security interest pro

ceeds formal requisites792040 When security interest attaches after

acquired property future advances792050 Use or disposition of collateral without

accounting permissible792060 Agreement not to assert defenses against

assignee modification of sales warranties where security agreement exists

792070 Rights and duties when collateral is insecured partys possession

792080 Request for statement of account or listof collateral

RIGHTS OF THIRD PARTIES PERFECTEDAND UNPERFECTED SECURITY INTERESTS

RULES OF PRIORITY

793010 Persons who take priority over unperfectedsecurity interests lien creditor

793020 When filing is required to perfect securityinterest security interests to whichfiling provisions of ORS 791010 to795070 do not apply

793030 When security interest is perfected continuity of perfection

793040 Perfection of security interest in Instruments documents and goods coveredby documents perfection by permissivefiling temporary perfection without filing or transfer of possession

793050 When possession by secured party perfectssecurity interest without filing

793060 Proceeds secured partys rights on disposition of collateral

793070 Protection of buyers of goods793080 Purchase of chattel paper and nonnegoti

able instruments

793090 Protection of purchasers of instrumentsand documents

793100 Priority of certain liens arising by operation of law

793110 Alienability of debtors rights judicialprocess

793120 Priorities among conflicting security interests in the same collateral

793130 Priority of security interests in fixtures793140 Accessions

793150 Priority when goods are commingled orprocessed

798160 Priority subject to subordination793170 Secured party not obligated on contract

of debtor

793180 Defenses against assignee modification ofcontract after notification of assignment term prohibiting assignment ineffective identification and proof ofassignment

FILING

794010 Place of filing erroneous filing removalof collateral

794020 Formal requisites of financing statementamendments

794025 Approval of standard forms by Secretaryof State effect

794036 What constitutes filing duration of filingeffect of lapsed filing duties of filingofficer

794040 Termination statement794050 Assignment of security interest duties of

filing officer fees794060 Release of collateral duties of filing offic

er fees794070 Information from filing officer

DEFAULT

795010 Default procedure when security agreement covers both real and personal property

795020 Collection rights of secured party795030 Secured partys right to take possession

after default

795040 Secured partys right to dispose of collateral after default effect of disposition

795050 Compulsory disposition of collateral acceptance of the collateral as dischargeof obligation

795060 Debtorsright to redeem collateral795070 Secured partys liability for failure to

comply with ORS 795010 to 795070

613

SUPERSEDED

CH 79 CROSS REFERENCES

CROSS REFERENCES

For Comments on 1958 Official Text of UniformCommercial Code and on ORS 791010 to 795070see pamphlet Oregons Uniform CommercialCode published in 1962 by the LegislativeCounsel Committee

Chattel mortgages discharge 86440 to 86470Validity of transactions entered into before Septem

ber 1 1963 under laws amended or repealed byUniform Commercial Code 1961 c726 427

791040

Federal Housing Administrator investments 86610to 86640

Motor vehicles encumbrances on 481410

793010

Chattel mortgages filed before September 1 1963statement of 86405

793040Documents of title Ch 77

793070

Presumption that ordinary course of business hasbeen followed 41360 20

793100

Statutory liens Ch 87794025

Statements filed before September 1 1963 validated1963 c370 3

614

SUPERSEDED

SECURED TRANSACTIONS

79010 79020 79030 79040 Repealed by 1961c726 427

SHORT TITLE APPLICABILITYAND DEFINITIONS

791010 Short title ORS 791010 to

795070 may be cited as Uniform CommercialCode Secured Transactions1961 c726 791010

791020 Policy and scope of ORS

791010 to 795070 1 Except as otherwise provided in ORS 791030 on multiplestate transactions and in ORS 791040 onexcluded transactions ORS 791010 to

795070 apply so far as concerns any personalproperty and fixtures within the jurisdictionof this state

a To any transaction regardless ofits form which is intended to create a security interest in personal property or fixtures including goods documents instruments general intangibles chattel paperaccounts or contract rights and also

b To any sale of accounts contractrights or chattel paper

2 ORS 791010 to 795070 apply tosecurity interests created by contract including pledge assignment chattel mortgagechattel trust trust deed factors lien equipment trust conditional sale trust receiptother lien or title retention contract andlease or consignment intended as securityORS 791010 to 795070 do not apply to statutory liens except as provided in ORS793100

3 The application of ORS 791010 to795070 to a security interest in a securedobligation is not affected by the fact thatthe obligation is itself secured by a transaction or interest to which ORS 791010 to795070 do not apply1961 c726 791020

Definitional cross references

Account ORS 791060

Chattel paper ORS 791050

Contract ORS 712010

Contract right ORS 791060

Document ORS 791050

General intangibles ORS 791060

Goods ORS 791050

Instrument ORS 791050

Security interest ORS 712010

791030

791030 Accounts contract rights general intangibles and equipment relating toanother jurisdiction and incoming goods already subject to a security interest 1If the office where the assignor of accountsor contract rights keeps his records concerning them is in this state the validity andperfection of a security interest therein andthe possibility and effect of proper filing isgoverned by ORS 791010 to 795070 otherwise by the law including the conflict oflaws rules of the jurisdiction where suchoffice is located

2 If the chief place of business of adebtor is in this state ORS 791010 to795070 govern the validity and perfection ofa security interest and the possibility andeffect of proper filing with regard to generalintangibles or with regard to goods of atype which are normally used in more thanone jurisdiction such as automotive equipment rolling stock airplanes road buildingequipment commercial harvesting equipmentconstruction machinery and the like if suchgoods are classified as equipment or classified as inventory by reason of their beingleased by the debtor to others Otherwisethe law including the conflict of laws rulesof the jurisdiction where such chief place ofbusiness is located shall govern If the chiefplace of business is located in a jurisdictionwhich does not provide for perfection of thesecurity interest by filing or recording inthat jurisdiction then the security interestmay be perfected by filing in this state

3 If personal property other than thatgoverned by subsections 1 and 2 of thissection is already subject to a security interest when it is brought into this state thevalidity of the security interest in this stateis to be determined by the law including theconflict of laws rules of the jurisdictionwhere the property was when the securityinterest attached However if the parties tothe transaction understood at the time thatthe security interest attached that the property would be kept in this state and it wasbrought into this state within 30 days afterthe security interest attached for purposesother than transportation through this statethen the validity of the security interest inthis state is to be determined by the law ofthis state If the security interest was already perfected under the law of the jurisdiction where the property was when thesecurity interest attached and before beingbrought into this state the security interestcontinues perfected in this state for four

615

SUPERSEDED

791040 COMMERCIAL TRANSACTIONS

months and also thereafter if within thefourmonth period it is perfected in thisstate The security interest may also beperfected in this state after the expiration ofthe fourmonth period in such case perfection dates from the time of perfection in thisstate If the security interest was not perfected under the law of the jurisdictionwhere the property was when the securityinterest attached and before being broughtinto this state it may be perfected in thisstate in such case perfection dates from thetime of perfection in this state

4 Notwithstanding subsections 2 and3 of this section if personal property iscovered by a certificate of title issued undera statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in theproperty as a condition of perfection thenthe perfection is governed by the law of thejurisdiction which issued the certificate1961 c726 791030

Definitional cross referencesAccount ORS 791060

Contract right ORS 791060Debtor ORS 791050Equipment ORS 791090General intangibles ORS 791060Goods ORS 791050

Inventory ORS 791090Security interest ORS 712010

791040 Transactions excluded fromORS 791010 to 795070 ORS 791010 to795070 do not apply

1 To a security interest subject to anystatute of the United States such as the ShipMortgage Act 1920 to the extent that suchstatute governs the rights of parties to andthird parties affected by transactions in particular types of property or

2 To a landlordslien or3 To a lien given by statute or other

rule of law for services or materials exceptas provided in ORS 793100 on priority ofsuch liens or

4 To a transfer of a claim for wagessalary or other compensation of an employeor

5 To an equipment trust covering railway rolling stock or

6 To a sale of accounts contract rightsor chattel paper as part of a sale of thebusiness out of which they arose or an assignment of accounts contract rights orchattel paper which is for the purpose ofcollection only or a transfer of a contract

616

right to an assignee who is also to do theperformance under the contract or

7 To a transfer of an interest or claimin or under any policy of insurance or

8 To a right represented by a judgment or

9 To any right of setoff or10 Except to the extent that provision

is made for fixtures in ORS 793130 to thecreation or transfer of an interest in or lienon real estate including a lease or rentsthereunder or

11 To a transfer in whole or in part ofany of the following any claim arising outof tort any deposit savings passbook orlike account maintained with a bank savingsand loan association credit union or likeorganization1961 c726 791040

Definitional cross referencesAccount ORS 791060Bank ORS 712010Chattel paper ORS 791050Contract ORS 712010

Contract right ORS 791060Party ORS 712010Rights ORS 712010Security interest ORS 712010

791050 Definitions and index of definitions 1 In ORS 791010 to 795070 unlessthe context otherwise requires

a Account debtor means the personwho is obligated on an account chattel papercontract right or general intangible

b Chattel paper means a writing orwritings which evidence both a monetaryobligation and a security interest in or alease of specific goods When a transaction isevidenced both by such a security agreementor a lease and by an instrument or a seriesof instruments the group of writings takentogether constitutes chattel paper

c Collateral means the property subject to a security interest and includes accounts contract rights and chattel paperwhich have been sold

d Debtor means the person who owespayment or other performance of the obligation secured whether or not he owns or hasrights in the collateral and includes the sellerof accounts contract rights or chattel paperWhere the debtor and the owner of the collateral are not the same person the termdebtor means the owner of the collateralin any provision of ORS 791010 to 795070dealing with the collateral the obligor in any

SUPERSEDED


provision dealing with the obligation andmay include both where the context so requires

e Document means document of titleas defined in ORS 712010

f Goods includes all things whichare movable at the time the security interestattaches or which are fixtures but does notinclude money documents instruments accounts chattel paper general intangiblescontract rights and other things in actionGoods also includes the unborn young ofanimals and growing crops and standingtimber which is to be cut and removed under

a conveyance or contract of saleg Instrument means a negotiable in

strument as defined in ORS 731040 or asecurity as defined in ORS 781020 or anyother writing which evidences a right to thepayment of money and is not itself a securityagreement or lease and is of a type which isin ordinary course of business transferredby delivery with any necessary indorsementor assignment

h Security agreement means an

agreement which creates or provides for asecurity interesti Secured party means a lender sell

er or other person in whose favor there is asecurity interest including a person to whomaccounts contract rights or chattel paperhave been sold When the holders of obligations issued under an indenture of trust

equipment trust agreement or the like arerepresented by a trustee or other person therepresentative is the secured party

2 Other definitions applying to ORS791010 to 795070 and the sections in which

they appear area Account as defined in ORS

791060

b Consumer goods as defined insubsection 1 of ORS 791090

c Contract right as defined in ORS791060

d Equipment as defined in subsection 2 of ORS 791090

e Farm products as defined in subsection 3 of ORS 791090

f General intangibles as defined inORS 791060

g Inventory as defined in subsection4 of ORS 791090

h Lien creditor as defined in subsection 3 of ORS 793010i Proceeds as defined in subsection

1 of ORS 793060

791060

j Purchase money security interestas defined in ORS 791070

3 The following definitions in othersections apply to ORS 791010 to 795070

a Check as defined in ORS 731040

b Contract for sale as defined inORS 721060

c Holder in due course as definedin ORS 733020

d Note as defined in ORS 731040e Sale as defined in ORS 721060

4 In addition ORS 711010 to 712080contain general definitions and principles ofconstruction and interpretation applicablethroughout ORS 791010 to 7950701961 c726 791050 1963 c402 10


Account ORS 791060Agreement ORS 712010Contract right ORS 791060Document of title ORS 712010

General intangibles ORS 791060Holder ORS 712010Money ORS 712010Negotiable instrument ORS 731040Person ORS712010Representative ORS 712010Rights ORS 712010Security ORS 781020Security interest ORS 712010Writing ORS 712010

791060 Definitions account con

tract right general intangibles In ORS

791010 to 795070 unless the context other

wise requires1 Account means any right to pay

ment for goods sold or leased or for servicesrendered which is not evidenced by an instrument or chattel paper

2 Contract right means any right topayment under a contract not yet earned byperformance and not evidenced by an instrument or chattel paper

3 General intangibles means any personal property including things in actionother than goods accounts contract rightschattel paper documents and instruments1961 c726 791060


Chattel paper ORS 791050

Contract ORS 712010

Document ORS 791050

Goods ORS 791050


SUPERSEDED

791070 COMMERC TRANSACTIONS

791070 Definition purchase moneysecurity interest A security interest is apurchase money security interest to theextent that it is

1 Taken or retained by the seller ofthe collateral to secure all or part of itsprice or

2 Taken by a person who by makingadvances or incurring an obligation givesvalue to enable the debtor to acquire rightsin or the use of collateral if such value isin fact so used

1961 c726 791070


Collateral ORS 791050Debtor ORS 791050Person ORS 712010

Rights ORS 712010Security interest ORS 712010Value ORS 712010

791080 When after acquired collateralnot security for antecedent debt Where a

secured party makes an advance incurs anobligation releases a perfected security interest or otherwise gives new value whichis to be secured in whole or in part by afteracquired property his security interest in theafteracquired collateral shall be deemed tobe taken for new value and not as securityfor an antecedent debt if the debtor acquireshis rights in such collateral either in theordinary course of his business or under acontract of purchase made pursuant to thesecurity agreement within a reasonable timeafter new value is given1961 c726 791080


Collateral ORS 791050Contract ORS 712010Debtor ORS 791050Purchase ORS 712010

Rights ORS 712010Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Value ORS 712010

791090 Classification of goods consumer goods equipment farm products inventory Goods are

1 Consumer goods if they are usedor bought for use primarily for personalfamily or household purposes

2 Equipment if they are used orbought for use primarily in business including farming or a profession or by a debtor

E

who is a nonprofit organization or a governmental subdivision or agency or if the goodsare not included in the definitions of inven

tory farm products or consumer goods3 Farm products if they are crops or

livestock or supplies used or produced infarming operations or if they are products ofcrops or livestock in their unmanufacturedstates such as ginned cotton wool clipmaple syrup milk and eggs and if theyare in the possession of a debtor engaged inraising fattening grazing or other farmingoperations If goods are farm products theyare neither equipment nor inventory

4 Inventory if they are held by aperson who holds them for sale or lease orto be furnished under contracts of service

or if he has so furnished them or if they areraw materials work in process or materialsused or consumed in a business Inventory ofa person is not to be classified as his equipment

1961 c726 791090


Contract ORS 712010

Debtor ORS 791050

Goods ORS 791050

Organization ORS 712010Person ORS 712010

Sale ORS 721060 and 791050

791100 Sufficiency of description For

the purposes of ORS 791010 to 795070 anydescription of personal property or real estate is sufficient whether or not it is specificif it reasonably identifies what is described1961 c726 791100

791110 Applicability of bulk transferlaws The creation of a security interest isnot a bulk transfer under ORS 761010 to7611101961 c726 791110

Definitional cross reference Security interest ORS 712010

791120 Where collateral is not ownedby debtor Unless otherwise agreed whena secured party knows that collateral isowned by a person who is not the debtorthe owner of the collateral is entitled to receive from the secured party any surplusunder subsection 2 of ORS 795020 orunder subsection 1 of ORS 795040 andis not liable for the debt or for any deficiencyafter resale and he has the same right asthe debtor

18

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SUPERSEDED

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1 To receive statements under ORS792080

2 To receive notice of and to object toa secured partys proposal to retain thecollateral in satisfaction of the indebtedness

under ORS 7950503 To redeem the collateral under ORS

7950604 To obtain injunctive or other relief

under subsection 1 of ORS 795070 and5 To recover losses caused to him un

der subsection 2 of ORS 7920801961 c726 791120

Definitional cross referencesCollateral ORS 791050Debtor ORS 791050Notice ORS 712010Person ORS 712010Receive notice ORS 712010

Rights ORS 712010Secured party ORS 791050

791130 Security interests arising underORS 721010 to 727250 on sales A securityinterest arising solely under ORS 721010 to727250 on sales is subject to the provisionsof ORS 791010 to 795070 except that to theextent that and so long as the debtor does

U4

792030

in ORS 791010 to 795070 validates anycharge or practice illegal under any statuteor regulation thereunder governing usurysmall loans retail instalment sales or thelike or extends the application of any suchstatute or regulation to any transaction nototherwise subject thereto1961 c726 792010


Collateral ORS 791050Creditor ORS 712010Party ORS 712010Purchaser ORS 712010Security agreement ORS 791050

792020 Title to collateral immaterial

Each provision of ORS 791010 to 795070with regard to rights obligations and remedies applies whether title to collateral is inthe secured party or in the debtor1961 c726 792020

Definitional cross referencesCollateral ORS 791050Debtor ORS 791050

Remedy ORS 712010Rights ORS 712010Secured party ORS 791050

not have or does not lawfully o taan posses 792030 Enforceability of security intersion of the goods est proceeds formal requisites 1 Subject

1 No security agreement is necessary to the provisions of ORS 742080 on the Seto make the security interest enforceable curity interest of a collecting bank and ORSand 791130 on a security interest arising undero 2 No filing is required to perfect the ORS 721010 to 727250 on sales a securitysecurity interest and interest is not enforceable against the debtor

3 The rights of the secured party on or third parties unlessdefault by the debtor are governed by ORS a The collateral is in the possession of721010 to 727250 on sales the secured party or1961 c726 7911301 b The debtor has signed a security

Definitional cross references agreement which contains a description ofDebtor ORS 791050 the collateral and in addition when the seGoods ORS 791050 curity interest covers crops or oil gas orRights ORS 712010 minerals to be extracted or timber to be cutSecured party ORS 791050 a description of the land concerned In deSecurity agreement ORS 791050 scribing collateral the word proceeds isSecurity interest ORS 712010 sufficient without further description to

791140 to 792000 Reserved for expansioncover proceeds of any character

2 A transaction although subject toVALIDITY OF SECURITY AGREEMENT ORS 791010 to 795070 is also subject to the

AND RIGHTS OF PARTIES THERETO provisions of ORS 83510 to 83680 and ORSchapter 725 and in the case of conflict be

792010 General validity of security tween the provisions of ORS 791010 toagreement Except as otherwise provided by 795070 and any such statutes the provisionsthe Uniform Commercial Code a security of such statutes control Failure to complyagreement is effective according to its terms with any applicable statute has only the efbetween the parties against purchasers of fect which is specified thereinthe collateral and against creditors Nothing 1961 c726 792030

619

SUPERSEDED



Collateral ORS 791050Debtor ORS 791050

Party ORS 712010Proceeds ORS 793060Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Signed ORS 712010

792040 When security interest attachesafter acquired property future advances1 A security interest cannot attach untilthere is agreement as defined in subsection3 of ORS 712010 that it attach and valueis given and the debtor has rights in thecollateral It attaches as soon as all the

events in the preceding sentence have takenplace unless explicit agreement postpones thetime of attaching

2 For the purposes of this section thedebtor has no rights

a In crops until they are planted orotherwise become growing crops in theyoung of livestock until they are conceived

b In fish until caught in oil gas orminerals until they are extracted

c In a contract right until the contracthas been made

d In an account until it comes intoexistence

3 Except as provided in subsection 4of this section a security agreement may provide that collateral whenever acquired shallsecure all obligations covered by the securityagreement

4 No security interest attaches underan after acquired property clause

a To crops which become such morethan two years after the security agreementis executed except that a security interest incrops which is given in conjunction with alease or a land purchase or improvementtransaction evidenced by a contract mortgage or deed of trust may if so agreed attachto crops to be grown on the land concernedduring the period of such real estate transaction

b To consumer goods other than accessions when given as additional security unless the debtor acquires rights in them within 10 days after the secured party givevalue

5 Obligations covered by a securityagreement may include future advances oother value whether or not the advances ovalue are given pursuant to commitment1961 c726 792040 1963 c402 5


Account ORS 791060

Agreement ORS 712010Collateral ORS 791050Consumer goods ORS 791090Contract ORS 712010

Contract right ORS 791060Debtor ORS 791050Purchase ORS 712010Rights ORS 712010Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Value ORS 712010

792050 Use or disposition of collateralwithout accounting permissible A securityinterest is not invalid or fraudulent againstcreditors by reason of liberty in the debtor touse commingle or dispose of all or part ofthe collateral including returned or repossessed goods or to collect or compromiseaccounts contract rights or chattel paper orto accept the return of goods or make repossessions or to use commingle or disposeof proceeds or by reason of the failure of thesecured party to require the debtor to account for proceeds or replace collateral Thissection does not relax the requirements ofpossession where perfection of a securityinterest depends upon possession of the collateral by the secured party or by a bailee1961 c726 792050

Definitional cross referencesAccount ORS 791060Chattel paper ORS 791050Collateral ORS 791050

Contract right ORS 791060Creditor ORS 712010Debtor ORS 791050Goods ORS 791050Proceeds ORS 793060

Secured party ORS 791050Security interest ORS 712010

792060 Agreement not to assert defenses against assignee modification of saleswarranties where security agreement exists1 Subject to any statute or decision whichestablishes a different rule for buyers ofconsumer goods an agreement by a buyer

s

that he will not assert against an assigneeany claim or defense which he may have

r against the seller is enforceable by an asr signee who takes his assignment for value

in good faith and without notice of a claim ordefense except as to defenses of a type which

620

SUPERSEDED

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may be asserted against a holder in duecourse of a negotiable instrument underORS 731010 to 738050 on commercial paperA buyer who as part of one transaction signsboth a negotiable instrument and a securityagreement makes such an agreement

2 When a seller retains a purchasemoney security interest in goods ORS 721010to 727250 govern the sale and any disclaimer limitation or modification of the sellerswarranties1961 c726 792060


Agreement ORS 712010Consumer goods ORS 791090Good faith ORS 712010

Goods ORS 791050Holder ORS 712010Holder in due course ORS 733020 and

791050

Negotiable instrument ORS 731040Notice ORS 712010

Purchase money security interest ORS791070

Sale ORS 721060 and 791050

Security agreement ORS 791050Security interest ORS 712010Value ORS 712010

792070 Rights and duties when collateral is in secured partys possession 1A secured party must use reasonable care ithe custody and preservation of collateralhis possession In the case of an instrumentor chattel paper reasonable care includes taking necessary steps to preserve rights againstprior parties unless otherwise agreed

2 Unless otherwise agreed when collateral is in the secured partys possession

a Reasonable expenses including thcost of any insurance and payment of taxesor other charges incurred in the custodypreservation use or operation of the collateral are chargeable to the debtor and arsecured by the collateral

b The risk of accidental loss or damageis on the debtor to the extent of any deficiency in any effective insurance coverage

c The secured party may hold as additional security any increase or profits except money received from the collateral butmoney so received unless remitted to thdebtor shall be applied in reduction of thsecured obligation

d The secured party must keep the collateral identifiable but fungible collateralmay be commingled

792080

e The secured party may repledge thecollateral upon terms which do not impairthe debtorsright to redeem it

3 A secured party is liable for any losscaused by his failure to meet any obligationimposed by subsections 1 and 2 of thissection but does not lose his security interest

4 A secured party may use or operatethe collateral for the purpose of preservingthe collateral or its value or pursuant to theorder of a court of appropriate jurisdictionor except in the case of consumer goods inthe manner and to the extent provided in thesecurity agreement1961 c726 792070


Chattel paper ORS 791050Collateral ORS 791050Debtor ORS 791050


Money ORS 712010Party ORS 712010Secured party ORS 791050Security interest ORS 712010

792080 Request for statement of account or list of collateral 1 A debtormay sign a statement indicating what hebelieves to be the aggregate amount of unpaid indebtedness as of a specified date andmay send it to the secured party with a re

n quest that the statement be approved orm

corrected and returned to the debtor When

the security agreement or any other recordkept by the secured party identifies thecollateral a debtor may similarly requestthe secured party to approve or correct alist of the collateral

2 The secured party must comply withsuch a request within two weeks after re

e ceipt by sending a written correction or approval If the secured party claims a securityinterest in all of a particular type of collateral owned by the debtor he may indicate

e that fact in his reply and need not approveor correct an itemized list of such collateralIf the secured party without reasonable excuse fails to comply he is liable for any losscaused to the debtor thereby and if the debtor has properly included in his request a goodfaith statement of the obligation or a list ofthe collateral or both the secured party may

e claim a security interest only as shown in thee statement against persons misled by his fail

ure to comply If he no longer has an interestin the obligation or collateral at the time therequest is received he must disclose the nameand address of any successor in interest

621

SUPERSEDED


known to him and he is liable for any losscaused to the debtor as a result of failure to

disclose A successor in interest is not sub

ject to this section until a request is receivedby him

3 A debtor is entitled to such a statement once every six months without chargeThe secured party may require payment of acharge not exceeding 10 for each additionalstatement furnished

1961 c726 792080


Collateral ORS 791050Debtor ORS 791050Good faith ORS 712010Know ORS 712010Person ORS 712010Receive ORS 712010

Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Send ORS 712010Written ORS 712010

792090 to 795000 Reserved for expansion

RIGHTS OF THIRD PARTIESPERFECTED AND UNPERFECTED

SECURITY INTERESTSRULES OF PRIORITY

793010 Persons who take priority overunperfected security interests lien creditor 1 Except as otherwise provided insubsection 2 of this section an unperfectedsecurity interest is subordinate to the rightsof

a Persons entitled to priority underORS 793120

b A person who becomes a lien creditor without knowledge of the security interests and before it is perfected

c In the case of goods instrumentsdocuments and chattel paper a person whois not a secured party and who is a transferee in bulk or other buyer not in ordinarycourse of business to the extent that he givesvalue and receives delivery of the collateralwithout knowledge of the security interestand before it is perfected

d In the case of accounts contractrights and general intangibles a person whois not a secured party and who is a transferee to the extent that he gives value without knowl

before it is

2 Ifspect to a

before or within 10 days after the collateralcomes into possession of the debtor he takespriority over the rights of a transferee inbulk or of a lien creditor which arise between

the time the security interest attaches andthe time of filing

3 A lien creditor means a creditor

who has acquired alien on the property involved by attachment levy or the like andincludes an assignee for benefit of creditorsfrom the time of assignment and a trustee inbankruptcy from the date of the filing of thepetition or a receiver in equity from the timeof appointment Unless all the creditors represented had knowledge of the security interests such a representative of creditors isa lien creditor without knowledge eventhough he personally has knowledge of thesecurity interest1961 c726 793010


Account ORS 791060

Buyer in ordinary course of business ORS712010

Chattel paper ORS 791050Collateral ORS 791050Contract right ORS 791060Creditor ORS 712010Delivery ORS 712010Document ORS 791050

General intangibles ORS 791060Goods ORS 791050Instrument ORS 791050Knowledge ORS 712010Person ORS 712010


Representative ORS 712010Rights ORS 712040Secured party ORS 791050Security interest ORS 712010Value ORS 712010

793020 When filing is required to perfeet security interest security interests towhich filing provisions of ORS 791010 to795070 do not apply 1 A financing statement must be filed to perfect all security interests except the following

a A security interest in collateral inpossession of the secured party under ORS793050

is

edge of the security interest and b A security interest temporarily perperfected fected in instruments or documents without

the secured party files with re delivery under ORS 793040 or in proceedspurchase money security interest for a 10day period under ORS 793060

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SUPERSEDED

J

1u


c A purchase money security interestin farm equipment having a purchase pricenot in excess of2500 but filing is requiredfor a fixture under ORS 793130 or for a mo

tor vehicle required to be licensedd A purchase money security interest

in consumer goods but filing is required fora fixture under ORS 793130 or for a motor

vehicle required to be licensede An assignment of accounts or con

tract rights which does not alone or in conjunction with other assignments to the sameassignee transfer a significant part of theoutstanding accounts or contract rights ofthe assignorf A security interest of a collecting

bank as provided in ORS 742080 or arisingunder ORS 721010 to 727250 on sales or

covered in subsection 3 of this section

2 If a secured party assigns a perfected security interest no filing under ORS791010 to 795070 is required in order to continue the perfected status of the security interest against creditors of and transfereesfrom the original debtor

3 The filing provisions of ORS 791010to 795070 do not apply to a security interestin property subject to a statute

a Of the United States which providesfor a national registration or filing of all security interests in such property or

b Of this state which provides for central filing of security interests in such property or in a motor vehicle which is not inventory held for sale for which a certificateof title is required under the statutes of thisstate if a notation of such a security interestcan be indicated by a public official on a certificate or a duplicate thereof

4 A security interest in property covered by a statute described in subsection 3of this section can be perfected only by registration or filing under that statute or by indication of the security interest on a certificate of title or a duplicate thereof by a publicofficial

1961 c726 793020


Collateral ORS 791050Consumer goods ORS 791090Contract right ORS791060Creditor ORS 712010Debtor ORS 791050

Delivery ORS 712010Document ORS 791050

Equipment ORS 791090

793040

Instrument ORS 791050Inventory ORS 791090Proceeds ORS 793060Purchase ORS 712010Purchase money security interest ORS

791070

Sale ORS 721060 and 791050Secured party ORS 791050Security interest ORS 712010

793030 When security interest is perfected continuity of perfection 1 A security interest is perfected when it has attachedand when all the applicable steps required forperfection have been taken Such steps arespecified in ORS 793020 793040 793050and 793060 If such steps are taken beforethe security interest attaches it is perfectedat the time when it attaches

2 If a security interest is originallyperfected in any way permitted under ORS791010 to 795070 and is subsequently perfected in some other way under ORS 791010to 795070 without an intermediate periodwhen it was unperfected the security interest shall be deemed to be perfected continuously for the purposes of ORS 791010 to795070

1961 c726 793030

Definitional cross reference Security interest ORS 712010

623

793040 Perfection of security interestin instruments documents and goods coveredby documents perfection by permissive filing temporary perfection without filing ortransfer of possession 1 A security interest in chattel paper or negotiable documentsmay be perfected by filing A security interest in instruments other than instrumentswhich constitute part of chattel paper canbe perfected only by the secured partys taking possession except as provided in subsections 4 and 5 of this section

2 During the period that goods are inthe possession of the issuer of a negotiabledocument therefor a security interest in thegoods is perfected by perfecting a securityinterest in the document and any security interest in the goods otherwise perfected during such period is subject thereto

3 A security interest in goods in thepossession of a bailee other than one who hasissued a negotiable document therefor is perfected by issuance of a document in the nameof the secured party or by the baileesreceiptof notification of the secured partys interestor by filing as to the goods

SUPERSEDED


4 A security interest in instruments ornegotiable documents is perfected withoutfiling or the taking of possession for a periodof 21 days from the time it attaches to theextent that it arises for new value given under a written security agreement

5 A security interest remains perfectedfor a period of 21 days without filing where asecured party having a perfected security interest in an instrument a negotiable document or goods in possession of a bailee otherthan one who has issued a negotiable document therefor

a Makes available to the debtor thegoods or documents representing the goodsfor the purpose of ultimate sale or exchangeor for the purpose of loading unloadingstoring shipping transshipping manufacturing processing or otherwise dealing withthem in a manner preliminary to their saleor exchange or

b Delivers the instrument to the debtorfor the purpose of ultimate sale or exchangeor of presentation collection renewal or registration of transfer

6 After the 21day period in subsections 4 and 5 of this section perfectiondepends upon compliance with applicableprovisions of ORS 791010 to 7950701961 c726 793040


Chattel paper ORS 791050Debtor ORS 791050Document ORS 791050

Goods ORS 791050


Receives notification ORS 712010Sale ORS 721060 and 791050

Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Value ORS 712010Written ORS 712010

793050 When possession by securedparty perfects security interest without filing A security interest in letters of creditadvices of credit goods instruments negotiable documents or chattel paper may be perfected by the secured partys taking possession of the collateral If such collateral other

than goods covered by a negotiable documentis held by a bailee the secured party isdeemed to have possession from the time thebailee receives notification of the secured

partys interest A security interest is per

fected by possession from the time possession is taken without relation back and con

tinues only so long as possession is retainedunless otherwise specified in ORS 791010 to795070 The security interest may be otherwise perfected as provided in ORS 791010 to795070 before or after the period of possession by the secured party1961 c726 793050


Chattel paper ORS 791050Collateral ORS 791050Documents ORS 791050Goods ORS 791050Instruments ORS 791050

Receives notification ORS 712010Secured party ORS 791050Security interest ORS 712010

624

793060 Proceeds secured partysrights on disposition of collateral 1 Proceeds includes whatever is received when

collateral or proceeds is sold exchanged collected or otherwise disposed of The termalso includes the account arising when theright to payment is earned under a contractright Money checks and the like are cashproceeds All other proceeds are noncash

proceeds

2 Except where ORS 791010 to

795070 otherwise provide a security interestcontinues in collateral notwithstanding saleexchange or other disposition thereof by thedebtor unless his action was authorized bythe secured party in the security agreementor otherwise and also continues in any identifiable proceeds including collections received by the debtor

3 The security interest in proceeds is acontinuously perfected security interest ifthe interest in the original collateral was perfected but it ceases to be a perfected security interest and becomes unperfected 10 daysafter receipt of the proceeds by the debtorunless

a A filed financing statement coveringthe original collateral also covers proceedsor

b The security interest in the proceedsis perfected before the expiration of the 10day period

4 In the event of insolvency proceedings instituted by or against a debtor a secured party with a perfected security interest in proceeds has a perfected security interest

a In identifiable noncash proceeds

is

C7

SUPERSEDED

f


b In identifiable cash proceeds in theform of money which is not commingled withother money or deposited in a bank accountprior to the insolvency proceedings

c In identifiable cash proceeds in theform of checks and the like which are not deposited in a bank account prior to the insolvency proceedings and

d In all cash and bank accounts of thedebtor if other cash proceeds have beencommingled or deposited in a bank accountbut the perfected security interest under thisparagraph d is

A Subject to any right of setoff andB Limited to an amount not greater

than the amount of any cash proceeds received by the debtor within 10 days beforethe institution of the insolvency proceedingsand commingled or deposited in a bank account prior to the insolvency proceedings lessthe amount of cash proceeds received by thedebtor and paid over to the secured partyduring the 10day period

793070

and purchasers of the returned or repossessed goods1961 c726 793060


Account ORS 791060Bank ORS 712010Chattel paper ORS 791050Check ORS 731040 and 791050Collateral ORS 791050

Contract right ORS 791060Creditors ORS 712010Debtor ORS 791050Goods ORS 791050Insolvency proceedings ORS 712010Money ORS 712010Purchaser ORS 712010

Sale ORS 721060 and 791050Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010

793070 Protection of buyers of goods1 A buyer in ordinary course of businessas defined in subsection 9 of ORS 712010other than a person buying farm productsfrom a person engaged in farming operationstakes free of a security interest created byhis seller even though the security interest isperfected and even though the buyer knowsof its existence

2 In the case of consumer goods and inthe case of farm equipment having an original purchase price not in excess of 2500other than fixtures a buyer takes free of asecurity interest even though perfected if hebuys without knowledge of the security interest for value and for his own personalfamily or household purposes or his ownfarming operations unless prior to the purchase the secured party has filed a financingstatement covering such goods1961 c726 793070

5 If a sale of goods results in an account or chattel paper which is transferredby the seller to a secured party and if thegoods are returned to or are repossessed bythe seller or the secured party the followingrules determine priorities

a If the goods were collateral at thetime of sale for an indebtedness of the seller

which is still unpaid the original security interest attaches again to the goods and continues as a perfected security interest if itwas perfected at the time when the goodswere sold If the security interest was originally perfected by a filing which is still effective nothing further is required to continuethe perfected status in any other case thesecured party must take possession of the returned or repossessed goods or must file

b An unpaid transferee of the chattelpaper has a security interest in the goodsagainst the transferor Such security interestis prior to a security interest asserted underparagraph a of this subsection to the extent that the transferee of the chattel paperwas entitled to priority under ORS 793080

c An unpaid transferee of the accounthas a security interest in the goods againstthe transferor Such security interest is subordinate to a security interest asserted underparagraph a of this subsection

d A security interest of an unpaidtransferee asserted under paragraph b orc of this subsection must be perfected forprotection against creditors of the transferor

621P


Buyer in ordinary course of business ORS712010

Consumer goods ORS 791090Equipment ORS 791090

Farm products ORS 791090Goods ORS 791050

Knows and Knowledge ORS 712010Person ORS 712010

Purchase ORS 712010

Secured party ORS 791050

Security interest ORS 712010Value ORS 712010

SUPERSEDED


793080 Purchase of chattel paper andnonnegotiable instruments A purchaser ofchattel paper or a nonnegotiable instrumentwho gives new value and takes possession ofit in the ordinary course of his business andwithout knowledge that the specific paper orinstrument is subject to a security interesthas priority over a security interest which isperfected under ORS 793040 permissive filing and temporary perfection A purchaserof chattel paper who gives new value andtakes possession of it in the ordinary courseof his business has priority over a securityinterest in chattel paper which is claimedmerely as proceeds of inventory subject to asecurity interest under ORS 793060 eventhough he knows that the specific paper issubject to the security interest1961 c726 793080


Chattel paper ORS 791050Instrument ORS 791050

Inventory ORS 791090Knowledge ORS 712010Proceeds ORS 793060Purchaser ORS 712010

Security interest ORS 712010Value ORS 712010

793090 Protection of purchasers of instruments and documents Nothing in OR791010 to 795070 limits the rights of a holder in due course of a negotiable instrument ofa holder to whom a negotiable document oftitle has been duly negotiated as provided irORS 775010 or a bona fide purchaser ofsecurity as provided in ORS 783010 and suchholders or purchasers take priority over aearlier security interest even though perfected Filing under ORS 791010 to 795070does not constitute notice of the security interest to such holders or purchasers1961 c726 793090


Bona fide purchaser ORS 783020Document of title ORS 712010

Duly negotiated ORS 775010Holder ORS 712010

Holder in due course ORS 733020 an791050

Negotiable instrument ORS 731040 and791050

Notice ORS 712010

Purchaser ORS 712010

Security ORS 781020 and 791050Security interest ORS 712010

793100 Priority of certain liens arisingby operation of law When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest a lien upon goodsin the possession of such person given bystatute or rule of law for such materials or

services takes priority over a perfected security interest unless the lien is statutoryand the statute expressly provides otherwise1961 c726 793100

Definitional cross referencesGoods ORS 791050Person ORS 712010


793110 Alienability of debtors rightsjudicial process The debtors rights in collateral may be voluntarily or involuntarilytransferred by way of sale creation of a security interest attachment levy garnishment or other judicial process notwithstanding a provision in the security agreement prohibiting any transfer or making thetransfer constitute a default1961 c726 793110

Definitional cross referencesCollateral ORS 791050

Debtor ORS 791050

Rights ORS 712010

Sale ORS 721060 and 791050

Security agreement ORS 791050


a793120 Priorities among conflicting se

curity interests in the same collateral 1n The rules of priority stated in the following

sections shall govern where applicable ORS742080 with respect to the security interestof collecting banks in items being collectedaccompanying documents and proceeds ORS793010 on certain priorities ORS 793040 ongoods covered by documents ORS 793060on proceeds and repossessions ORS 793070on buyers of goods ORS 793080 on possessory against nonpossessory interests in chattel paper or nonnegotiable instruments ORS793090 on security interests in negotiable in

d struments documents or securities ORS793100 on priorities between perfected security interests and liens by operation oflaw ORS 793130 on security interests in fixtures as against interests in real estate ORS793140 on security interests in accessions asagainst interest in goods ORS 793150 on

szsconflicting security interests where goods

SUPERSEDED


lose their identity or become part of a product and ORS 793160 on contractual subordination

2 A perfected security interest in cropsfor new value given to enable the debtor toproduce the crops during the production season and given not more than three monthsbefore the crops become growing crops byplanting or otherwise takes priority over anearlier perfected security interest to the extent that such earlier interest secures obligations due more than six months before the

crops become growing crops by planting orotherwise even though the person givingnew value had knowledge of the earlier security interest

3 A purchase money security interestin inventory collateral has priority over aconflicting security interest in the same collateral if

a The purchase money security interest is perfected at the time the debtor receives possession of the collateral and

b Any secured party whose security interest is known to the holder of the purchasemoney security interest or who prior to thedate of the filing made by the holder of thepurchase money security interest had filed afinancing statement covering the same itemsor type of inventory has received notification of the purchase money security interestbefore the debtor receives possession of thecollateral covered by the purchase money security interest and

c Such notification states that the person giving the notice has or expects to acquire a purchase money security interest ininventory of the debtor describing such inventory by item or type

4 A purchase money security interestin collateral other than inventory has priority over a conflicting security interest in thesame collateral if the purchase money security interest is perfected at the time the debtor receives possession of the collateral orwithin 10 days thereafter

5 In all cases not governed by otherrules stated in this section including casesof purchase money security interests whichdo not qualify for the special priorities setforth in subsections 3 and 4 of this section priority between conflicting securityinterests in the same collateral shall be determined as follows

a In the order of filing if both are perfected by filing regardless of which securityinterest attached first under subsection 1

627

I93130

of ORS 792040 and whether it attached beofore or after filing

b In the order of perfection unless bothare perfected by filing regardless of whichsecurity interest attached first under subsection 1 of ORS 792040 and in the case of afiled security interest whether it attachedbefore or after filing and

c In the order of attachment undersubsection 1 of ORS 792040 so long asneither is perfected

6 For the purpose of the priority rulesof subsection 5 of this section a continuously perfected security interest shall betreated at all times as if perfected by filingif it was originally so perfected and it shallbe treated at all times as if perfected otherwise than by filing if it was originally perfected otherwise than by filing1961 c726 793120


Bank ORS 712010

Chattel paper ORS 791050Collateral ORS 791050Debtor ORS 791050Documents ORS 791050Give notice ORS 712010Goods ORS 791050Instruments ORS 791050Inventory ORS 791090Knowledge ORS 712010Person ORS 712010Proceeds ORS 793060Purchase money security interest ORS

791070

Receives notification ORS 712010Secured party ORS 791050Security ORS 781020 and 791050Security interest ORS 712010Value ORS 712010

793130 Priority of security interests infixtures 1 The rules of this section do notapply to goods incorporated into a structurein the manner of lumber bricks tile cementglass metal work and the like and no security interest in them exists under ORS 791010to 795070 unless the structure remains personal property under applicable law The lawof this state other than the Uniform Commercial Code determines whether and when

other goods become fixtures The UniformCommercial Code does not prevent creationof an encumbrance upon fixtures or real estate pursuant to the law applicable to realestate

2 A security interest which attaches to

SUPERSEDED


goods before they become fixtures takes priority as to the goods over the claims of allpersons who have an interest in the real estate except as stated in subsection 4 of thissection

3 A security interest which attaches togoods after they become fixtures is validagainst all persons subsequently acquiringinterests in the real estate except as statedin subsection 4 of this section but is invalid against any person with an interest inthe real estate at the time the security interest attaches to the goods who has not inwriting consented to the security interest ordisclaimed an interest in the goods as fixtures

4 The security interests described insubsections 2 and 3 of this section donot take priority over

a A subsequent purchaser for value ofany interest in the real estate or

b A creditor with alien on the real estate subsequently obtained by judicial proceedings or

c A creditor with a prior encumbranceof record on the real estate to the extent that

he makes subsequent advances

if the subsequent purchase is made the lienby judicial proceedings is obtained or thesubsequent advance under the prior encumbrance is made or contracted for without

knowledge of the security interest and beforeit is perfected A purchaser of the real estateat a foreclosure sale other than an encum

brancer purchasing at his own foreclosuresale is a subsequent purchaser within thissection

5 When under subsections 2 or 3and 4 of this section a secured party haspriority over the claims of all persons whchave interests in the real estate he may ondefault subject to the provisions of ORS795010 to 795070 remove his collateralfrom the real estate but he must reimburseany encumbrancer or owner of the real estate who is not the debtor and who has not

otherwise agreed for the cost of repair ofany physical injury but not for any diminution in value of the real estate caused by theabsence of the goods removed or by any necessity for replacing them A person entitledto reimbursement may refuse permission tremove until the secured party gives adequate security for the performance of thisobligation1961 e726 793130


Collateral ORS 791050Contract ORS 712010Creditor ORS 712010Debtor ORS 791050Goods ORS 791050Knowledge ORS 712010Person ORS 712010Purchase ORS 712010Purchaser ORS 712010

Secured party ORS 791050Security interest ORS 712010Value ORS 712010

Writing ORS 712010

793140 Accessions 1 A security interest in goods which attaches before theyare installed in or affixed to other goodstakes priority as to the goods installed oraffixed called in this section accessionsover the claims of all persons to the wholeexcept as stated in subsection 3 of this section and subject to subsection 1 of ORS793150

2 A security interest which attaches togoods after they become part of a whole isvalid against all persons subsequently acquiring interests in the whole except asstated in subsection 3 of this section but isinvalid against any person with an interestin the whole at the time the security interestattaches to the goods who has not in writingconsented to the security interest or disclaimed an interest in the goods as part ofthe whole

3 The security interests described insubsections 1 and 2 of this section donot take priority over

a A subsequent purchaser for value ofany interest in the whole or

b A creditor with a lien on the wholesubsequently obtained by judicial proceedings or

c A creditor with a prior perfectedsecurity interest in the whole to the extentthat he makes subsequent advances

if the subsequent purchase is made the lienby judicial proceedings obtained or the subsequent advance under the prior perfected security interest is made or contracted forwithout knowledge of the security interest

o and before it is perfected A purchaser of thewhole at a foreclosure sale other than the

holder of a perfected security interest purchasing at his own foreclosure sale is a subsequent purchaser within this section

628

SUPERSEDED


4 When under subsections 1 or 2and 3 of this section a secured party hasan interest in accessions which has priorityover the claims of all persons who have interests in the whole he may on default subjectto the provisions of ORS 795010 to 795070remove his collateral from the whole

but he must reimburse any encumbrancer orowner of the whole who is not the debtor andwho has not otherwise agreed for the cost ofrepair of any physical injury but not for anydiminution in value of the whole caused bythe absence of the goods removed or by anynecessity for replacing them A person entitled to reimbursement may refuse permission to remove until the secured party givesadequate security for the performance ofthis obligation1961 c726 793140


Collateral ORS 791050Creditor ORS 712010Debtor ORS 791050Goods ORS 791050Knowledge ORS 712010Person ORS 712010Purchaser ORS 712010Secured party ORS 791050Security interest ORS 712010Value ORS 712010Writing ORS 712010

793150 Priority when goods are commingled or processed 1 If a security interest in goods was perfected and subsequently the goods or a part thereof have become part of a product or mass the securityinterest continues in the product or mass if

a The goods are so manufactured processed assembled or commingled that theiridentity is lost in the product or mass or

b A financing statement covering theoriginal goods also covers the product intowhich the goods have been manufacturedprocessed or assembled

In a case to which paragraph b of this subsection applies no separate security interestin that part of the original goods which hasbeen manufactured processed or assembledinto the product may be claimed under ORS793140

793180

attached bears to the cost of the total product or mass1961 c726 793150


Goods ORS 791050


793160 Priority subject to subordination Nothing in ORS 791010 to 795070 prevents subordination by agreement by anyperson entitled to priority1961 c726 793160


Agreement ORS 712010Person ORS 712010

793170 Secured party not obligated oncontract of debtor The mere existence of asecurity interest or authority given to thedebtor to dispose of or use collateral does notimpose contract or tort liability upon the secured party for the debtors acts or omissions1961 c726 793170


Contract ORS 712010

Debtor ORS 791050



793180 Defenses against assignee modification of contract after notification of as

signment term prohibiting assignment ineffective identification and proof of assignment 1 Unless an account debtor hasmade an enforceable agreement not to assertdefenses or claims arising out of a sale asprovided in ORS 792060 the rights of anassignee are subject to

a All the terms of the contract between the account debtor and assignor andany defense or claim arising therefrom and

b Any other defense or claim of theaccount debtor against the assignor whichaccrues before the account debtor receivesnotification of the assignment

2 So far as the right to payment underan assigned contract right has not already

2 When under subsection 1 of thissection more than one security interest attaches to the product or mass they rankequally according to the ratio that the costof the goods to which each interest originally

f

become an account and notwithstanding notification of the assignment any modificationof or substitution for the contract made in

good faith and in accordance with reasonablecommercial standards is effective against an

129

SUPERSEDED


assignee unless the account debtor has otherwise agreed but the assignee acquires corresponding rights under the modified or substituted contract The assignment may provide that such modification or substitution

is a breach by the assignor3 The account debtor is authorized to

pay the assignor until the account debtorreceives notification that the account hasbeen assigned and that payment is to bemade to the assignee A notification whichdoes not reasonably identify the rights assigned is ineffective If requested by the account debtor the assignee must seasonablyfurnish reasonable proof that the assignmenthas been made and unless he does so the ac

count debtor may pay the assignor4 A term in any contract between an

account debtor and an assignor which prohibits assignment of an account or contractright to which they are parties is ineffective1961 c726 793180


Account debtor ORS 791050Agreement ORS 712010Contract ORS 712010

Contract right ORS 791060Good faith ORS 712010Party ORS 712010Receives notification ORS 712010Rights ORS 712010Sale ORS 721060 and 791050Seasonably ORS 712040Term ORS 712010


FILING

794010 Place of filing erroneous filingremoval of collateral 1 The proper placeto file in order to perfect a security interestis as follows

a When the collateral is equipmentused in farming operations or farm productsor accounts contract rights or general intangibles arising from or relating to the saleof farm products by a farmer or consumergoods then in the office of the county clerkor if the county clerk be not a recorder ofconveyances then in the office of the countyrecorder and in either event in the countywhere the goods are kept or the crops aregrowing or to be grown

b When the collateral is goods which atthe time the security interest attaches are orare to become fixtures then in the office

6

where a mortgage on the real estate concerned would be filed or recorded

c In all other cases in the office of theSecretary of State and in addition if thedebtor has a place of business in only onecounty of this state also in the office of thecounty clerk or if the county clerk be not arecorder of conveyances then in the officeof the county recorder of such county or ifthe debtor has no place of business in thisstate but resides in the state also in theoffice of the county clerk or if the countyclerk be not a recorder of conveyances thenin the office of the county recorder of thecounty in which he resides

2 A filing which is made in good faithin an improper place or not in all the placesrequired by this section is nevertheless effective with regard to any collateral as towhich the filing complied with the requirements of ORS 791010 to 795070 and is also

effective with regard to collateral covered bythe financing statement against any personwho has knowledge of the contents of suchfinancing statement

3 A filing which is made in the properplace in this state continues effective eventhough the debtors residence or place ofbusiness or the location of the collateral orits use whichever controlled the original filing is thereafter changed1961 c726 794010 1963 c402 6


Account ORS 791060Collateral ORS 791050Consumer goods ORS 791090Debtor ORS 791050Equipment ORS 791090Farm products ORS 791090Financing statement ORS 794020Good faith ORS 712010Goods ORS 791050

Knowledge ORS 712010Person ORS 712010

Secured party ORS 791050Security interest ORS 712010Signed ORS 712010

794020 Formal requisites of financingstatement amendments 1 A financingstatement is sufficient if it is signed by thedebtor and the secured party gives an address of the secured party from which information concerning the security interestmay be obtained gives a mailing address ofthe debtor and contains a statement indicating the types or describing the items of

30collateral A financing statement may be

r

SUPERSEDED


filed before a security agreement is made ora security interest otherwise attaches Whenthe financing statement covers crops growingor to be grown or goods which are or are tobecome fixtures the statement must alsocontain a description of the real estate concerned A copy of the security agreement issufficient as a financing statement if it contains the above information and is signedby both parties

2 A financing statement which otherwise complies with subsection 1 of thissection is sufficient although it is signedonly by the secured party when it is filed toperfect a security interest in

a Collateral already subject to a security interest in another jurisdiction whenit is brought into this state Such a financingstatement must state that the collateral was

brought into this state under such circumstances

b Proceeds under ORS 793060 if thesecurity interest in the original collateralwas perfected Such a financing statementmust describe the original collateral

3 A form substantially as follows issufficient to comply with subsection 1 ofthis section

Name of debtor or assignorAddress

Name of secured party or assigneeAddress

1 This financing statement covers thefollowing types or items of propertyDescribe

2 If collateral is crops The above described crops are growing or are to be grownon

Describe real estate3 If collateral is goods which are or are

to become fixtures The above describedgoods are affixed or to be affixed toDescribe real estate

4 If proceeds or products of collateralare claimed Proceeds Products of the col

lateral are also covered

Signature of debtor or assignorSignature of secured party or assignee

794030

complying with the requirements of this section is effective even though it containsminor errors which are not seriously misleading

6 A carbon impression a photocopy orother duplicate or reproduction of a financing statement bearing or showing the signatures of the parties thereto is a signedfinancing statement within the meaning ofsubsection 1 of this section1961 c726 794020 1963 c402 7


Collateral ORS 791050Debtor ORS 791050

Goods ORS 791050

Party ORS 712010Proceeds ORS 793060Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Signed ORS 712010

794025 Approval of standard forms bySecretary of State effect 1 Notwithstanding subsection 3 of ORS 794020 for thepurpose of standardization the Secretary ofState shall approve for general use suchforms of financing statements continuationstatements statements of assignment statements of partial release statements of release and termination statements for filingwith any filing officer pursuant to the Uniform Commercial Code as shall conform tothe provisions thereof When the Secretaryof State approves any form as a standardform any filing officer may require paymentof an additional filing fee not exceeding 50cents for the filing and indexing of any nonstandard form serving only the same purpose

2 Upon payment of the fees payablepursuant to ORS 794025 to 794070 financing statements continuation statementsstatements of assignment statements ofpartial release statements of release andtermination statements may be filed andfiling officers shall accept file and index thesame and make certificates with respectthereto at any time after May 23 19631963 c370 1 2

Note ORS 794025 was not enacted as part ofORS 791010 to 7950704 The term financing statement as

used in ORS 791010 to 795070 means theoriginal financing statement and any amendments but if any amendment adds collateralit is effective as to the added collateral onlyfrom the filing date of the amendment

5 A financing statement substantiallyf

794030 What constitutes filing duration of filing effect of lapsed filing dutiesof filing officer 1 Presentation for filingof a financing statement and tender of thefiling fee or acceptance of the statement by

W

SUPERSEDED

794040 CONMERCIAL TRANSACTIONS

the filing officer constitutes filing under ORS791010 to 795070

2 A filed financing statement whichstates a maturity date of the obligation secured of five years or less is effective untilsuch maturity date and thereafter for aperiod of 60 days Any other filed financingstatement is effective for a period of fiveyears from the date of filing A filed financing statement which states that the obligation secured is payable on demand is effective for five years from the date of filingThe effectiveness of a filed financing statement lapses on the expiration of such 60dayperiod after a stated maturity date or on theexpiration of such fiveyear period as thecase may be unless a continuation statementis filed prior to the lapse Upon such lapsethe security interest becomes unperfected

3 A continuation statement may befiled by the secured party a within sixmonths before and 60 days after a statedmaturity date of five years or less and botherwise within six months prior to the expiration of the fiveyear period specified insubsection 2 of this section Any suchcontinuation statement must be signed bythe secured party identify the original statement by file number and state that the original statement is still effective Upon timelyfiling of the continuation statement the effectiveness of the original statement is continued for five years after the last date towhich the filing was effective whereupon itlapses in the same manner as provided insubsection 2 of this section unless anothercontinuation statement is filed prior to suchlapse Succeeding continuation statementsmay be filed in the same manner to continuethe effectiveness of the original statementUnless a statute on disposition of public records provides otherwise the filing officermay remove a lapsed statement from thefiles and destroy it

4 A filing officer shall mark eachstatement with a consecutive file number andwith the date and hour of filing and shallhold the statement for public inspection Inaddition the filing officer shall index thestatements according to the name of thedebtor and shall note in the index the file

number and the address of the debtor givenin the statement The index may be made upof the statements themselves copiesseparate cards or otherwise

and furnishing filing data for an original ora continuation statement shall be 11961 c726 794030 1963 c402 8

Definitional cross referencesDebtor ORS 791050

Financing statement ORS 794020Secured party ORS 791050Security interest ORS 712010

794040 Termination statement 1Whenever there is no outstanding securedobligation and no commitment to make advances incur obligations or otherwise givevalue the secured party must on written demand by the debtor send the debtor a statement that he no longer claims a security interest under the financing statement whichshall be identified by file number A termination statement signed by a person other thanthe secured party of record must include orbe accompanied by the assignment or a statement by the secured party of record that hehas assigned the security interest to the signer of the termination statement The uniform

fee for filing and indexing such an assignment or statement thereof shall be 1 If theaffected secured party fails to send such atermination statement within 10 days afterproper demand therefor he shall be liable tothe debtor for 100 and in addition for anyloss caused to the debtor by such failure

2 On presentation to the filing officerof such a termination statement he must noteit in the index The filing officer shall removefrom the files mark terminated and sendor deliver to the secured party the financingstatement and any continuation statementstatement of assignment or statement of release pertaining thereto

3 The uniform fee for filing and indexing a termination statement including sending or delivering the financing statementshall be 11961 c726 794040

Definitional cross referencesDebtor ORS 791050

Financing statement ORS 794020Person ORS 712010

Secured party ORS 791050Security interest ORS 712010Send ORS 712010Value ORS 712010Written ORS 712010

5 The uniform fee for filing

is

J

thereof794050 Assignment of security inter

est duties of filing officer fees 1 A financing statement may disclose an assign

indexing63

ment of a security interest in the collateral

SUPERSEDED

SECURED TRANSACTIONS 795010

described in the statement by indication inthe statement of the name and address ofthe assignee or by an assignment itself or acopy thereof on the face or back of the statement Either the original secured party orthe assignee may sign this statement as thesecured party On presentation to the filingofficer of such a financing statement the filing officer shall mark the same as providedin subsection 4 of ORS 794030 The uniform fee for filing indexing and furnishingfiling data for a financing statement so indicating an assignment shall be 1

2 A secured party may assign of record all or a part of his rights under a financing statement by the filing of a separatewritten statement of assignment signed bythe secured party of record and setting forththe name of the secured party of record andthe debtor the file number and the date offiling of the financing statement and thename and address of the assignee and containing a description of the collateral assigned A copy of the assignment is sufficientas a separate statement if it complies withthe preceding sentence On presentation tothe filing officer of such a separate statement the filing officer shall mark such separate statement with the date and hour of

the filing He shall note the assignment onthe index of the financing statement Theuniform fee for filing indexing and furnishing filing data about such a separate statement of assignment shall be 1

3 After the disclosure or filing of anassignment under this section the assigneeis the secured party of record1961 c726 794050


Collateral ORS 791050Debtor ORS 791050Financing statement ORS 794020Rights ORS 712010Secured party ORS 791050Signed ORS 712010Written ORS 712010

such a statement to the filing officer he shallmark the statement with the hour and dateof filing and shall note the same upon themargin of the index of the filing of the financing statement The uniform fee for filingand noting such a statement of release shallbe 11961 c726 794060


Collateral ORS 791050Debtor ORS 791050Financing statement ORS 794020Secured party ORS 791050Signed ORS 712010

794070 Information from filing officer1 If the person filing any financing statement termination statement statement ofassignment or statement of release furnishes the filing officer a copy thereof thefiling officer shall upon request note uponthe copy the file number and date and hourof the filing of the original and deliver orsend the copy to such person

2 Upon request of any person the filing officer shall issue his certificate showingwhether there is on file on the date and hourstated therein any presently effective financing statement naming a particular debtor and any statement of assignment thereofand if there is giving the date and hour offiling of each such statement and the namesand addresses of each secured party thereinThe uniform fee for such a certificate shall

be 1 plus 50 cents for each financing statement and for each statement of assignmentreported therein Upon request the filing officer shall furnish a copy of any filed financing statement or statement of assignment fora uniform fee of 50 cents per page1961 c726 794070


Debtor ORS 791050Financing statement ORS 794020Person ORS 712010Secured party ORS 791050Send ORS 712010

794060 Release of collateral duties offiling officer fees A secured party of recordmay by his signed statement release all or apart of any collateral described in a filed financing statement The statement of releaseis sufficient if it contains a description of thecollateral being released the name and address of the debtor the name and address ofthe secured party and the file number of thefinancing statement Upon presentation of

632


DEFAULT

795010 Default procedure when security agreement covers both real and personalproperty 1 When a debtor is in defaultunder a security agreement a secured partyhas the rights and remedies provided in ORS795010 to 795070 and except as limited by

SUPERSEDED

795020 COMMERC TRANSACTIONS

subsection 3 of this section those providedin the security agreement He may reduce hisclaim to judgment foreclose or otherwise enforce the security interest by any availablejudicial procedure If the collateral is documents the secured party may proceed eitheras to the documents or as to the goods covered thereby A secured party in possessionhas the rights remedies and duties providedin ORS 792070 The rights and remedies referred to in this subsection are cumulative

2 After default the debtor has therights and remedies provided in ORS 795010to 795070 those provided in the securityagreement and those provided in ORS792070

3 To the extent that they give rightsto the debtor and impose duties on the secured party the rules stated in the subsections referred to below may not be waived orvaried except as provided in subsection 1of ORS 795050 with respect to compulsorydisposition of collateral and with respect toredemption of collateral as provided in ORS795060 but the parties may by agreementdetermine the standards by which the fulfillment of these rights and duties is to bemeasured if such standards are not manifestly unreasonable

a Subsection 2 of ORS 795020 andsubsection 2 of ORS 795040 in so far asthey require accounting for surplus proceedsof collateral

b Subsection 3 of ORS 795040 andsubsection 1 of ORS 795050 which dealwith disposition of collateral

c Subsection 2 of ORS 795050 whichdeals with acceptance of collateral as discharge of obligation

d ORS 795060 which deals with redemption of collateral and

e Subsection 1 of ORS 795070 whichdeals with the secured partys liability forfailure to comply with ORS 795010 to795070

4 If the security agreement coversboth real and personal property the securedparty may proceed under ORS 795010 to795070 as to the personal property or hemay proceed as to both the real and the personal property in accordance with his rightsand remedies in respect of the real propertyin which case the provisions of ORS 795010to 795070 do not apply

5 When a secured party has reducedhis claim to judgment the lien of any levywhich may be made upon his collateral byvirtue of any execution based upon thejudgment shall relate back to the date of theperfection of the security interest in suchcollateral A judicial sale pursuant to suchexecution is a foreclosure of the security interest by judicial procedure within the meaning of this section and the secured partymay purchase at the sale and thereafter holdthe collateral free of any other requirementsof ORS 791010 to 7950701961 c726 795010

Definitional cross referencesAgreement ORS 712010

Collateral ORS 791050

Debtor ORS 791050

Documents ORS 791050

Goods ORS 791050

Remedy ORS 712010

Rights ORS 712010


Security agreement ORS 791050


795020 Collection rights of secured

party 1 When so agreed and in any eventon default the secured party is entitled tonotify an account debtor or the obligor on aninstrument to make payment to him whetheror not the assignor was theretofore makingcollections on the collateral and also to takecontrol of any proceeds to which he is entitled under ORS 793060

2 A secured party who by agreementis entitled to charge back uncollected collateral or otherwise to full or limited recourseagainst the debtor and who undertakes tocollect from the account debtors or obligorsmust proceed in a commercially reasonablemanner and may deduct his reasonable expenses of realization from the collections Ifthe security agreement secures an indebtedness the secured party must account to thedebtor for any surplus and unless otherwiseagreed the debtor is liable for any deficiency But if the underlying transaction was asale of accounts contract rights or chattelpaper the debtor is entitled to any surplusor is liable for any deficiency only if the security agreement so provides

6341961 c726 795020

JJ

SUPERSEDED

SECURED TRANSACTIONS 795040

Definitional cross referencesAccount ORS 791060Account debtor ORS 791050Agreement ORS 712010Chattel paper ORS 791050Collateral ORS 791050Contract right ORS 791060Debtor ORS 791050Instrument ORS 791050

Notify ORS 712010Proceeds ORS 793060Secured party ORS 791050Security agreement ORS 791050

795030 Secured partys right to takepossession after default Unless otherwiseagreed a secured party has on default theright to take possession of the collateral Intaking possession a secured party may proceed without judicial process if this can bedone without breach of the peace or may proceed by action If the security agreement soprovides the secured party may require thedebtor to assemble the collateral and make it

available to the secured party at a place tobe designated by the secured party which isreasonably convenient to both parties Without removal a secured party may renderequipment unusable and may dispose of collateral on the debtors premises under ORS7950401961 c726 795030


Action ORS 712010Collateral ORS 791050Debtor ORS 791050

Equipment ORS 791090Party ORS 712010Rights ORS 712010Secured party ORS 791050Security agreement ORS 791050

795040 Secured partys right to disposeof collateral after default effect of disposition 1 A secured party after default maysell lease or otherwise dispose of any or allof the collateral in its then condition or fol

lowing any commercially reasonable preparation or processing Any sale of goods is subject to ORS 721010 to 727250 on sales Theproceeds of disposition shall be applied in theorder following to

a The reasonable expenses of retakingholding preparing for sale selling and thelike and to the extent provided for in theagreement and not prohibited by law thereasonable attorneys fees and legal expenseincurred by the secured party

b The satisfaction of indebtedness secured by the security interest under whichthe disposition is made

c The satisfaction of indebtedness secured by any subordinate security interest inthe collateral if written notification of demand therefor is received before distribution

of the proceeds is completed If requested bythe secured party the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest and unless he does so the secured party need notcomply with his demand

2 If the security interest secures an indebtedness the secured party must accountto the debtor for any surplus and unlessotherwise agreed the debtor is liable for anydeficiency But if the underlying transactionwas a sale of accounts contract rights orchattel paper the debtor is entitled to anysurplus or is liable for any deficiency only ifthe security agreement so provides

3 Disposition of the collateral may beby public or private proceedings and may bemade by way of oneor more contracts Sale

or other disposition may be as a unit or inparcels and at any time and place and on anyterms but every aspect of the disposition including the method manner time place andterms must be commercially reasonable Unless collateral is perishable or threatens todecline speedily in value or is of a type customarily sold on a recognized market reasonable notification of the time and place ofany public sale or reasonable notification ofthe time after which any private sale orother intended disposition is to be made shallbe sent by the secured party to the debtorand except in the case of consumer goods toany other person who has a security interestin the collateral and who has duly filed a financing statement indexed in the name of thedebtor in this state or who is known by thesecured party to have a security interest inthe collateral The secured party may buy atany public sale and if the collateral is of atype customarily sold in a recognized marketor is of a type which is the subject of widelydistributed standard price quotations he maybuy at private sale

4 When collateral is disposed of by asecured party after default the dispositiontransfers to a purchaser for value all of thedebtors rights therein discharges the security interest under which it is made and any

s security interest or lien subordinate theretoThe purchaser takes free of all such rights

635

SUPERSEDED

795050 CONMRCIAL TRANSACTIONS

and interests even though the secured partyfails to comply with the requirements of ORS795010 to 795070 or of any judicial proceedings

a In the case of a public sale if thepurchaser has no knowledge of any defectsin the sale and if he does not buy in collusionwith the secured party other bidders or theperson conducting the sale or

b In any other case if the purchaseracts in good faith

5 A person who is liable to a securedparty under a guaranty indorsement repurchase agreement or the like and who receives a transfer of collateral from the se

cured party or is subrogated to his rightshas thereafter the rights and duties of thesecured party Such a transfer of collateralis not a sale or disposition of the collateralunder ORS 791010 to 7950701961 c726 795040


Account ORS 791060Agreement ORS 712010Chattel paper ORS 791050Collateral ORS 791050Consumer goods ORS 791090Contract ORS 712010

Contract right ORS 791060Debtor ORS 791050

Financing statement ORS 794020Gives notification ORS 712010Good faith ORS 712010Goods ORS 791050

Knowledge ORS 712010Person ORS 712010Proceeds ORS 793060Purchaser ORS 712010Receives notification ORS 712010Rights ORS 712010Sale ORS 721060 and 791050Secured party ORS 791050Security agreement ORS 791050Security interest ORS 712010Send ORS 712010Term ORS 712010Value ORS 712010Written ORS 712010

statement renouncing or modifying his rightsunder ORS 795010 to 795070 a secured

party who has taken possession of collateralmust dispose of it under ORS 795040 and ifhe fails to do so within 90 days after he takespossession the debtor at his option may recover in conversion or under subsection 1of ORS 795070 on secured partys liability

2 In any other case involving consumer goods or any other collateral a securedparty in possession may after default propose to retain the collateral in satisfaction ofthe obligation Written notice of such proposal shall be sent to the debtor and except inthe case of consumer goods to any other secured party who has a security interest inthe collateral and who has duly filed a financing statement indexed in the name ofthe debtor in this state or is known by thesecured party in possession to have a security interest in it If the debtor or other person entitled to receive notification objects inwriting within 30 days from the receipt ofthe notification or if any other secured partyobjects in writing within 30 days after thesecured party obtains possession the securedparty must dispose of the collateral underORS 795040 In the absence of such writtenobjection the secured party may retain thecollateral in satisfaction of the debtorsobligation1961 c726 795050


Consumer goods ORS 791090Debtor ORS 791050Knows ORS 712010Notice ORS 712010Person ORS 712010


Receives notification ORS 712010Rights ORS 712010Secured party ORS 791050Security interest ORS 712010Send ORS 712010Signed ORS 712010Written ORS 712010

795050 Compulsory disposition of collateral acceptance of the collateral as discharge of obligation 1 If the debtor haspaid 60 percent of the cash price in the caseof a purchase money security interest in consumer goods or 60 percent of the loan in thecase of another security interest in consumergoods and has not signed after default a

63E

795060 Debtors right to redeem collateral At any time before the secured partyhas disposed of collateral or entered into acontract for its disposition under ORS795040 or before the obligation has been discharged under subsection 2 of ORS 795050the debtor or any other secured party may

is

SUPERSEDED


is unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retakingholding and preparing the collateral for disposition in arranging for the sale and to theextent provided in the agreement and notprohibited by law his reasonable attorneysfees and legal expenses1961 c726 7950601


Agreement ORS 712010Collateral ORS 791050Contract ORS 712010Debtor ORS 791050Secured party ORS 791050Writing ORS 712010

795070 Secured partysliability for failure to comply with ORS 795010 to 7950701 If it is established that the secured partyis not proceeding in accordance with the provisions of ORS 795010 to 795070 dispositionmay be ordered or restrained on appropriateterms and conditions If the disposition hasoccurred the debtor or any person entitled tonotification or whose security interest hasbeen made known to the secured party priorto the disposition has a right to recover fromthe secured party any loss caused by a failure to comply with the provisions of ORS795010 to 795070 If the collateral is con

sumer goods the debtor has a right to recover in any event an amount not less thanthe credit service charge plus 10 percent ofthe principal amount of the debt or the timeprice differential plus 10 percent of the cashprice

795070

2 The fact that a better price couldhave been obtained by a sale at a differenttime or in a different method from that se

lected by the secured party is not of itselfsufficient to establish that the sale was not

made in a commercially reasonable mannerIf the secured party either sells the collateralin the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale orif he has otherwise sold in conformity withreasonable commercial practices among dealers in the type of property sold he has soldin a commercially reasonable manner Theprinciples stated in the two preceding sentences with respect to sales also apply asmay be appropriate to other types of disposition A disposition which has been approvedin any judicial proceeding or by any bonafide creditors committee or representative ofcreditors shall conclusively be deemed to becommercially reasonable but this sentencedoes not indicate that any such approvalmust be obtained in any case nor does it indicate that any disposition not so approved isnot commercially reasonable1961 c726 795070


Collateral ORS 791050Consumer goods ORS 791090Creditor ORS 712010Debtor ORS 791050Knows ORS 712010Notification ORS 712010

Person ORS 712010Representative ORS 712010Rights ORS 712010Secured party ORS 791050Security interest ORS 712010

CERTIFICATE OF LEGISLATIVE COUNSEL

Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I have comparedeach section printed in this chapter with the original section in the enrolled bill and that the sections inthis chapter are correct copies of the enrolled sections with the exception of the changes in form permittedby ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haley

on December 1 1963637

Legislative Counsel

SUPERSEDED

lu

638

SUPERSEDED

Chapter 801963 reprint

Assignments

80010 Assignment of chose in action payment bydebtor without notice

80020 Effect of an assignment on a defense

CROSS

Forest products and booming equipment brands assignment of 532080

Presumption of fraud where sale or assignment ofpersonalty is without change of possession

Trademarks assignment of 647065Trust deed foreclosure of if assignment recorded

86735

80010

Annuity assignment by minor 736335Assignment of funds earned under contract for

highway construction 366420Civil defense injury benefits assignability of 401840Collection agency property right in account as

signed for collection 697235Debt consolidation business defined 697615Execution of instrument defined 42020Judgments assignment of recordation of 18400Public contractor claims against 279514Submerged and tide lands permit easement or lease

relating to assignability 274785

Teachers retirement benefits unassignable 239261Trust assignment of necessity for writing 41560Veterans loans assignability of rights payments

or proceeds of 407110Wages assignment of 725350Workmens compensation benefits assignability of

656234

80020

Claims against public corporations for money illegally charged or exacted actions and suits byassignees on 30380

Cooperatives dissolved actions and suits on assignments of 62690

Corporations dissolved actions and suits on assignments of 57585

Foreign corporations or associations dissolved actions and suits on assignments of 57735

Motor vehicle retail instalment contract buyersrights against seller preserved 83650

Usurious contract recovery on by assignee of82130

639

SUPERSEDED


ASSIGNMENTS

80010 Assignment of chose in actionpayment by debtor without notice Any bonafide assignment of a chose in action by wayof sale or pledge made in writing for a goodvaluable and adequate consideration is

deemed completed at the time the writingis executed by the assignor and takes effectat the time of execution according to theterms of the writing without the giving ofnotice to the debtor therein mentioned un

less such notice is required by statute butif notice is not given to a debtor and suchdebtor without knowledge of the assignment pays or discharges in whole or in part

his obligation to the assignor or to anysubsequent assignee of the chose in actionwho has given notice such payment constitutes a discharge of the debtor to the extent thereof without prejudice to any rightor remedy between the several assignees

80020 Effect of an assignment on adefense In the case of an assignment of athing in action an action or suit by theassignee is without prejudice to any setoffor other defense existing at the time of orbefore notice of the assignment but thissection does not apply to a negotiable instrument transferred in good faith and upongood consideration before due

640

SUPERSEDED


Tender and Receipts

81010 Effect of unaccepted offer in writing to payor deliver

81020 Objection to tender

81030 Receipt for paying money or delivering instruments or property

CRASS

Tender of money in payment or satisfaction of cause 81030

of action or suit effect as to costs 20180 presumption that former instalments of a debt have81020 been paid when a receipt for later instalment

Rejection of goods must be made within reasonable is produced 4136010time after tender 726020

641

SUPERSEDED


TENDER AND RECEIPTS

81010 Effect of unaccepted offer inwriting to pay or deliver An offer in writingto pay a particular sum of money or todeliver a written instrument or specificpersonal property is if not accepted equivalent to the actual production and tender ofthe money instrument or property

81020 Objection to tender The personto whom a tender is made shall at that timespecify any objection he may have to themoney instrument or property or he shallbe deemed to have waived it and if the

objection is to the amount of money theterms of the instrument or the amount orkind of property he must specify theamount terms or kind which he requires orbe precluded from objecting afterwards

81030 Receipt for paying money ordelivering instruments or property Whoever pays money or delivers an instrumentor property is entitled to a receipt thereforfrom the person to whom the payment ordelivery is made and may demand a propersignature to such receipt as a condition ofthe payment or delivery

642

SUPERSEDED

Chapter 82

1959 REPLACEMENT PART1963 reprint

Interest and Usury

INTEREST 82120 Jury trial where usury is involved burden

82010 Legal rate of interestof proof who may plead usury inapplicability of provisions to sales or resales

USURY of securities or commercial paper forfeiture

82110 Charging higher than permitted rate com 82130 Recovery by assignee of usurious contractputation of interest expenses not in 82140 Agreement to pay taxes on debt creditcluded or mortgage

CROSS

Banks interest rates on loans by 708480County orders interest on 208020Credit unions limitations on rates of interest on

loans by 723120Debt consolidators fees limited 697740Motor vehicle retail installment contracts finance

charge 83560Pawnbrokers interest rates of 726390Redemption by lien creditor interest payable on

23540

Redemption by mortgagor judgment debtor or successors interest payable on 23560

Redemption from redemptioner interest payable on23550

Retail instalment contracts service charges 8309083100

Small loans interest rates on 725340

State development credit corporation interest onloans 63240

643

SUPERSEDED

644

SUPERSEDED

INTEREST AND USURY

INTEREST

82010 Legal rate of interest 1 Thelegal rate of interest is six percent perannum and is payable on

a All moneys after they become duebut open accounts bear interest from thedate of the last item thereof

b Judgments and decrees for the payment of money from the date of the entrythereof unless some other date is specifiedtherein except that those upon contractsbearing more than six percent interest andnot exceeding the maximum rate bear thesame rate of interest as borne by suchcontracts

c Money received to the use of another and retained beyond a reasonable timewithout the owners express or implied consent

d Money due upon the settlement ofmatured accounts from the day the balanceis ascertained

e Money due or to become due wherethere is a contract to pay interest and norate specified

2 But on contracts interest up to amaximum rate of 10 percent per annummay be charged upon express agreement ofthe parties

3 Except as provided by subsection 4of this section the limitations of this sectionshall not apply to any contract or obligationfor which a domestic or foreign corporationis the obligor and any domestic or foreigncorporation by agreement in writing and nototherwise may agree to pay any rate of interest not exceeding 12 percent per annumon such contract or obligation as the corporation may determine The defense or claimof usury by a corporation or anyone actingin its behalf in any action or proceeding arising out of a contract or obligation that meetsthe requirements of this subsection is prohibited

4 Subsection 3 of this section doesnot apply to any charitable religious or othernonprofit corporation and any such nonprofitcorporation is not prohibited from interposing or pleading the defense of usury in anyaction or proceedingAmended by 1959 c365 11


USURY

82120

82110 Charging higher than permittedrate computation of interest expenses notincluded 1 No person corporation or association mutual or otherwise shall receivein money goods or things in action or inany other manner any greater sum or valuefor the loan or use of money than in thischapter prescribed

2 If pursuant to any arrangementunderstanding or agreement with the knowledge of the lender either as a part of thecontract of borrowing or collateral theretoregardless of when made and whether it ismade as a special arrangement or in conformity to a regular rule regulation orpractice there is paid by or at the expenseof the borrower to the lender his brokerofficer director or agent any commissionbonus fee premium penalty or other

charge compensation or gratuity whetherin money credit or other thing of value as aconsideration compensation or inducementfor obtaining any loan or any renewalextension or forbearance thereof the sameshall be deemed a part of the interestcharged on such loan within the meaningof this chapter

3 In computing interest for the purposes of this chapter any bona fide commission paid or sustained by the borrowershall be computed for the contract term andnot for any accelerated period or prepayment

4 This section does not includea Reasonable amounts actually ap

plied in payment of the expense of inspecting any security offered in connection withthe loan investigating the responsibility ofthe applicant or procuring or extending anyabstract of title or certificate of title insurance covering such security

b The amount actually paid for theexamination of any such abstract or titleinsurance certificate or

c The cost of the preparation execution and recording of any papers necessaryin consummating such loan

82120 Jury trial where usury is involved burden of proof who may pleadusury inapplicability of provisions to salesor resales of securities or commercial paperforfeiture 1 In the trial of any cause involving the defense of usury either partythereto shall be accorded a jury trial in

645

SUPERSEDED

82130 COIVIDZERCIAL TRANSACTIONS

action at law and at the discretion of thecourt in suits in equity upon making timelyrequest therefor to the court or judge thereof wherein the cause is pending

2 The burden of proof to establishusury is upon the party interposing thatdefense but the question of whether theusurious contract had been made or usuryexacted is for determination by the jury inlaw actions and in suits in equity by thecourt or by a jury in the discretion of thecourt In either case the verdict of the juryshall have the same force and effect as inlaw actions and said defense shall bedeemed to have been established as in other

civil actions when sustained by the preponderance of the evidence in the case If uponsuch trial evidence is introduced with re

spect to the subject matter of the litigationshowing the payment of any commissionbonus fee premium penalty or other

charge compensation or gratuity by theborrower to any officer director or agent ofthe lender knowledge thereof is prima facieimputed to the lender

3 The defense of usury may be interposed not only by the borrower but by hisaccommodation indorser guarantor or surety by any junior mortgagee or lien holderand by the vendee or grantee of any property involved in or pledged or mortgaged assecurity for the alleged usurious loan Deduction shall be made from the amountactually received by the borrower of allusurious payments made by him or for hisaccount

4 This chapter does not apply to bonafide sales or resales of securities or com

mercial paper5 If it is ascertained in any action or

suit brought on any contract that a rate ofinterest has been contracted for greaterthan is authorized by this chapter in moneyproperty or other valuable thing or thatany gift or donation of money property or

other valuable thing has been made orpromised to be made to a lender or creditoror to any person for him either by the borrower or debtor or by any person for himthe design of which is to obtain for moneyso loaned or for debts due or to become due

a rate of interest greater than that specifiedby the provisions of this chapter it shall bedeemed usurious and shall work a forfeiture of the entire debt so contracted to thecounty school fund of the county whereinsuch suit is brought The court in which suchsuit is prosecuted shall render judgment forthe amount of the original sum loaned or thedebt contracted without interest less allpayments made by or for account of theborrower against the defendant and infavor of the state for the use of the countyschool fund of said county and against theplaintiff for costs of suit

82130 Recovery by assignee of usurious contract Nothing in this chapter shallbe construed to prevent the bona fide assignee of usurious contract from recoveringfrom his immediate assignor or the originalusurer the full amount paid by him for suchcontract which may be recovered by properaction in any court having competent jurisdiction if such assignee had no notice of theusury affecting the contract

82140 Agreement to pay taxes on debtcredit or mortgage 1 Any contract madeby borrower and lender debtor and creditoror mortgagor and mortgagee on which therate of interest is eight percent or underwhereby one party agrees to pay the taxeson the debt credit or mortgage existing orentered into between such parties is legaland not usurious

2 Any such contract may be enforcedby the parties thereto in the courts but inmaking the assessments of credits loans ormortgages the same shall be assessed to theholder thereof as now provided by law


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I have comparedeach section printed in this chapter with the original section in the enrolled bill and that the sections inthis chapter are correct copies of the enrolled sections with the exception of the changes in form permittedby ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haleyon November 1 1959 Legislative Counsel

646

SUPERSEDED

Chapter 83

1963 REPLACEMENT PART

Retail Instalment Contracts

CROSS REFERENCES

Restrictive motor vehicle financing agreements 83580

646410 to 646460 Accident and health insurance written in connectionSecurity interests Ch 79 with instalment loans 741410

Validity of transactions entered into prior to Sep Credit life insurance 739565 to 739620

tember 1 1963 under sections amended or re 83640pealed by Uniform Commercial Code 1961 c726427

Collection and debt consolidating agencies Ch 697

647

GOODS AND SERVICES MOTOR VEHICLES

83010 Definitions for ORS 83010 to 83190 83510 Definitions for 83510 to 8368083020 Retail instalment contract to be single docu 83820 Form and contents of retail instalment con

ment dated and signed exceptions tract for motor vehicle83030 Contents of contract 83530 Filling blanks83040 Subsequent purchases under original con 88540 Delivery of copy of contract to buyer

83050

tract

Contracts completed by mail and based on 83560 Finance charge

catalog of seller 83570 Extra charges prohibited83060 Filling blanks 83580 Insurance8307083080

Delivery of copy of contract to buyerInforming buyer of service charge and right 83590 Delinquency and collection chargesuencq y

to prepay monthly statement 83600 Statements receipts

83090 Service charge to include other fees 83610 Delivery to buyer of instrument indicating83100 Extra charges prohibited miscellaneous pro fun payment release of security

visions of contract 83620 Voluntary prepayment by buyer refund83110 Insurance 83630 Extension of scheduled due date deferment83120 Receipts schedule of payments of scheduled payment83130 Voluntary prepayment by buyer refund 83650 Effect of negotiation of notes on buyers83140 Consolidation of purchases with prior con rights against seller

tract 83660 Acceleration provision83150 Unenforceable contract provisions 83670 Unenforceable contract provisions8316083110

Waiver of ORS 83010 to 83190 invalidEffect of violation of ORS 83010 to 83190 83680 Waiver of provisions of ORS 83510 to 83680

by seller83180 Enforcement of ORS 83010 to 83190 assur PENALTIES

83190ance of compliance

Civil penalties 83990 Penalties

CROSS REFERENCES

Restrictive motor vehicle financing agreements 83580

646410 to 646460 Accident and health insurance written in connectionSecurity interests Ch 79 with instalment loans 741410

Validity of transactions entered into prior to Sep Credit life insurance 739565 to 739620

tember 1 1963 under sections amended or re 83640pealed by Uniform Commercial Code 1961 c726427

Collection and debt consolidating agencies Ch 697

647

SUPERSEDED


GOODS AND SERVICES obtains services or agrees to have servicesNote ORS 83010 to 83190 do not apply to any rendered or furnished from a retail seller

contract executed before October 1 1963 but doapply to any contract executed after September 30 7 Retail charge agreement revoly1963 See 1963 c489 22 23 ing charge agreement or charge agree

ment means an agreement entered into or83010 Definitions for ORS 83010 to performed in this state prescribing the terms

83190 As used in ORS 83010 to 83190 un of retail instalment transactions which mayless the context requires otherwise be made thereunder from time to time and

1 Cash sale price means the price under the terms of which a service charge isfor which the seller would have sold or fur to be computed in relation to the buyersunnished to the buyer and the buyer would paid balance from time to time

have bought or obtained from the seller the Retail instalment contract or congoods or services which are the subject mat tract means a contract other than a retailter of a retail instalment transaction if the charge agreement or an instrument reflectsale had been a sale for cash The cash sale ing a sale made pursuant thereto enteredprice may include any taxes registration and into or performed in this state for a retaillicense fees and charges for transferring ve instalment transaction Retail instalmenthicle titles delivery installation servicing contract includes a chattel mortgage a conrepairs alterations or improvements ditional sale contract and a contract in the

2 Goods means all chattels personal form of a bailment or a lease if the bailee orother than motor vehicles as defined in ORS lessee contracts to pay as compensation for83510 when purchased primarily for per their use a sum substantially equivalent to orsonal family or household use and not for in excess of the value of the goods sold andcommercial or business use but not including money or except

if it is agreed that the bailee or lessee isbound to become or for no other or a merelyas provided in the next

sentence things in action Goods includes nominal consideration has the option of bebut is not limited to merchandise certificates coming the owner of the goods upon fullor coupons issued by a retail seller to be compliance with the provisions of the bailused in their face amount in lieu of cash in ment or lease

exchange for goods or services sold by such 9 Retail instalment transactiona seller and goods which at the time of sale means any transaction in which a retail buyor subsequently are to be so affixed to real er purchases goods or services from a retailproperty as to become a part thereof wheth seller pursuant to a retail instalment contracter or not severable therefrom or a retail charge agreement which provides

3 Official fees means the amount of for a service charge and under which thebuyer agrees to pay the unpaid balance inthe fees prescribed by law for filing record one or more instalments

ing or otherwise perfecting and releasing orsatisfying a retained title lien or other se 10 Retail seller or seller means a

curity interest created by a retail instalment person engaged in the business of sellinggoods or services to retail buyerstransaction

4 Principal balance means the cash 11 Service charge however denominated or expressed means the amountsale price of the goods or services which are

the subject matter of a retail instalment con

which

is paid or payable for the privilege of purtract less the amount of the buyers down chasing goods or services to be paid for bypayment in money or goods or both plus the the buyer in instalments over a period of

Vie Service charge does not include theamounts if any included therein if a separate identified charge is made therefor and amount if any charged for insurance prestated in the contract for insurance and offi miums delinquency charges attorneys feescial fees court costs or official fees

5 Rate means the percentage which 12 Services means work labor orservices of any kind when purchased primarwhen multiplied times the outstanding bal

ance for each month or other instalment ily for personal family or household use andpe

riod yields the amount of the service chargenot for commercial or business use whether

for such month or period or not furnished in connection with the deliv

6 Retail buyer or buyer means aery installation servicing repair or improvement of goods and includes repairs altera

person who buys or agrees to buy goods or tions or improvements upon or in connection648

SUPERSEDED

RETAIL INSTALMENT CONTRACTS

with real property but does not include services for which the price charged is requiredby law to be determined or approved by or tobe filed subject to approval or disapprovalwith the United States or any state or anydepartment division agency officer or official of either as in the case of transportationservices

13 Time balance means the principalbalance plus the service charge1963 c489 1

83020 Retail instalment contract to be

single document dated and signed exceptions 1 Except as provided in subsections2 and 3 of this section every retail instalment contract shall be contained in a single document which shall contain the entireagreement of the parties including any promissory notes or other evidences of indebtedness between the parties relating to thetransaction except as provided in ORS83040 83050 and 83140

2 Where the buyers obligation to paythe time balance is represented by a promissory note secured by a chattel mortgage thepromissory note may be a separate instrument if the mortgage recites the amount andterms of payment of such note and the promissory note recites that it is secured by amortgage

3 In a transaction involving the repairalteration or improvement upon or in connection with real property the contract may besecured by a mortgage on the real propertycontained in a separate document Home improvement retail sales transactions which arefinanced or insured by the Federal HousingAdministration are not subject to ORS 83010to 83190

4 The contract shall be dated signedby the retail buyer and completed as to allessential provisions except as otherwise provided in ORS 83050 and 83060 The printedor typed portion of the contract other thaninstructions for completion shall be in a sizeequal to at least 8point type1963 c489 2

83030 Contents of contract The retailinstalment contract shall contain the namesof the seller and the buyer the place of business of the seller the residence or other address of the buyer as specified by the buyerand a description or identification of thegoods sold or to be sold or services furnishedor rendered or to be furnished or renderedThe contract also shall contain the following

f

83040

items which shall be set forth in the sequence appearing below however additionalitems may be included to explain the calculations involved in determining the balance tobe paid by the buyer

1 The cash sale price of each item ofgoods or services

2 The amount of the buyersdown payment identifying the amounts paid in moneyand allowed for goods traded in

3 The difference between subsections1 and 2 of this section

4 The aggregate amount if any included for insurance specifying the type ortypes of insurance and the terms of coverage

5 The aggregate amount of officialfees

6 The principal balance which is thesum of subsections 3 4 and 5 of thissection

7 The dollar amount or rate of theservice charge

8 The amount of the time balance owedby the buyer to the seller which is the sumof subsections 6 and 7 of this section ifsubsection 7 is stated in a dollar amountand

9 The maximum number of instalmentpayments required the amount of each instalment and the due date of each paymentnecessary to pay such balance However ifinstalment payments other than the finalpayment are stated as a series of equal scheduled amounts and if the amount of the finalinstalment payment does not substantiallyexceed the scheduled amount of each preceding instalment payment the maximum number of payments and the amount and duedate of each payment need not be separatelystated and the amount of the scheduled finalinstalment payment may be stated as the remaining unpaid balance The due date of thefirst instalment payment may be fixed by aday or date or may be fixed by reference tothe date of the contract or to the time of delivery or installation1963 c489 41

83040 Subsequent purchases under original contract A retail instalment contractmay be contained in more than one document provided that one such document shallbe an original document signed by the retailbuyer stated to be applicable to purchases ofgoods or services to be made by the retailbuyer from time to time In such case such

49

SUPERSEDED


document together with the sales slip account book or other written statement relating to each purchase shall set forth all ofthe information required by ORS 83030 andshall constitute the retail instalment contractfor each purchase On each succeeding purchase pursuant to such original documentthe sales slip account book or other writtenstatement may at the option of the seller constitute the memorandum required by ORS83140

1963 c489 5

83050 Contracts completed by mail andbased on catalog of seller 1 Retail instalment contracts negotiated and entered intoby mail without personal solicitation by salesmen or other representatives of the sellerand based upon a catalog of the seller orother printed solicitation of business if suchcatalog or other printed solicitation clearlysets forth the cash sale prices and otherterms of sales to be made through such medium may be made as provided in this section The provisions of ORS 83010 to 83190with respect to retail instalment contractsshall be applicable to such sales except thatthe retail instalment contract when completed by the buyer need not contain theitems required by ORS 83030

2 When the contract is received fromthe retail buyer the seller shall prepare awritten memorandum containing all of theinformation required by ORS 83030 to be included in a retail instalment contract In lieuof delivering a copy of the contract to theretail buyer as provided in ORS 83070 theseller shall deliver to the buyer a copy ofsuch memorandum prior to the due date ofthe first instalment payable under the contract However if the catalog or otherprinted solicitation does not set forth all ofthe other terms of sales in addition to thecash sale prices such memorandum shall bedelivered to the buyer prior to or at the timeof delivery of the goods or services1963 c489 61

83060 Filling blanks The seller shallnot obtain the signature of the buyer to anycontract when it contains blank spaces ofitems which are essential provisions of thetransaction except as provided in ORS 83050However if delivery of the goods is not madeat the time of the execution of the contractthe identifying numbers or marks of thegoods or similar information and the duedate of the first instalment may be inserted

6

by the seller in the sellers counterpart of thecontract after it has been signed by thebuyer1963 c489 7

83070 Delivery of copy of contract tobuyer The retail seller shall deliver to theretail buyer or mail to him at his addressshown on the retail instalment contract acopy of the contract as accepted by theseller Until the seller does so the buyershall be obligated to pay only the cash saleprice Any acknowledgment by the buyer ofdelivery of a copy of the contract shall be ina size equal to at least 10point bold typeand if contained in the contract shall appear directly above the buyers signature1963 c489 31

83080 Informing buyer of servicecharge and right to prepay monthly statement 1 At or prior to the time a retailcharge agreement is made the seller shalladvise the buyer in writing on the application form or otherwise or orally that a service charge will be computed on the outstanding balance for each month which need notbe a calendar month or other regular periodagreed upon the schedule or rate by whichthe service charge will be computed and thatthe buyer may at any time pay his total unpaid balance If this information is givenorally the seller shall upon approval of thebuyers credit deliver to the buyer or mailto him at his address a memorandum settingforth this information

2 The seller or holder of a retail chargeagreement shall promptly supply the buyerwith a statement as of the end of eachmonthly period which need not be a calendar month or other regular period agreedupon in which there is any unpaid balancethereunder which statement shall set forththe following

a The unpaid balance under the retailcharge agreement at the beginning and atthe end of the period

b Unless otherwise furnished by theseller to the buyer by sales slip memorandum or otherwise a description or identification of the goods or services purchasedduring the period the cash sale price and thedate of each purchase

c The payments made by the buyer tothe seller and any other credits to the buyerduring the period

d The amount if any of any servicecharge for such period and

50

SUPERSEDED

RETAIL INSTALMENT CONTRACTS 831140

e A legend to the effect that the buyermay at any time pay his total unpaid balance

1963 c489 12

83090 Service charge to include otherfees The service charge shall be inclusive ofall charges incident to investigating and making the retail instalment contract or chargeagreement and for the privilege of makingthe instalment payments thereunder and noother fee expense or charge whatsoever shallbe taken received reserved or contractedtherefor1963 c489 13

83100 Extra charges prohibited miscellaneous provisions of contract 1 The holder of any retail instalment contract or retailcharge agreement may not collect any delinquency or collection charges including anyattorneys fee and court costs and disbursements unless the contract or charge agreement so provides In such cases the chargesshall be reasonable and no attorneys feemay be recovered unless the contract orcharge agreement is referred for collectionto an attorney not a salaried employe of theholder

2 The contract or charge agreementmay contain other provisions not inconsistentwith the purposes of ORS 83010 to 83190including but not limited to provisions relating to refinancing transfer of the buyersequity construction permits and title reports1963 c489 91

thereof or a copy of the policy or policies ofinsurance or a certificate or certificates ofthe insurance so procured1963 c489 14

83120 Receipts schedule of paymentsA buyer shall be given a written receipt forany payment when made in cash Upon written request of the buyer the holder of a retail instalment contract shall give or forwardto the buyer a written statement of the datesand amounts of payments and the totalamount unpaid under the contract Such astatement shall be given the buyer once without charge If any additional statement isrequested by the buyer it shall be suppliedby the holder at a charge not in excess of 1for each additional statement so supplied1963 c489 10

83130 Voluntary prepayment by buyerrefund Notwithstanding the provisions ofany retail instalment contract to the contrary and if the rights of the purchaser havenot been terminated or forfeited under theterms of the contract any buyer may prepayin full the unpaid time balance thereof atany time before its final due date and ifhe does so and if the contract is not indefault under any term or condition of thecontract more than two months he shall receive a refund credit of the unearned portionof the service charge for such prepaymentThe amount of such refund credit shall becomputed according to the rule of seventyeighths that is it shall represent at least asgreat a porportion of the original servicecharge after deducting therefrom a maximum of 10 where the cash sale price is 100or less 15 where the cash sale price is 250or less 25 where the cash sale price is 500or less or 50 where the cash sale price ismore than 500 as the sum of the monthlyor lesser periodic time balances beginningone month or lesser period after prepaymentis made bears to the sum of all the monthlyor lesser periodic time balances under theschedule of payments in the contract Wherethe amount of such refund credit is less than1 no refund need be made1963 c489 8

83110 Insurance 1 If the cost of anyinsurance is included in the retail instalmentcontract or retail charge agreement

a The contract or agreement shall statethe nature purpose term and amount ofsuch insurance

b The contract or agreement shall statewhether the insurance is to be procured bythe buyer or the seller

c The amount included for such insurance shall not exceed the premiums chargeable in accordance with the rate fixed forsuch insurance by the insurer except wherethe amount is less than 1

2 If the insurance is to be procured by83140 Consolidation of purchases with

the seller or holder he shall within 45 days Prior contract 1 If in a retail instalmentafter delivery of the goods or furnishing of transaction a retail buyer makes any subse

the services under the contract deliver mail quent purchases of goods or services from aor cause to be mailed to the buyer at his ad retail seller from whom he has previously

dress as specified in the contract a notice purchased goods or services under one or651

SUPERSEDED


more retail instalment contracts and theamounts under such previous contract or contracts have not been fully paid the subsequent purchases may at the sellers optionbe included in and consolidated with one ormore of the previous contracts All the provisions of ORS 83010 to 83190 with respectto retail instalment contracts shall be applicable to such subsequent purchases except asotherwise provided in this subsection In theevent of such consolidation in lieu of thebuyers executing a retail instalment contract respecting each subsequent purchaseas provided in this section it shall be sufficient if the seller shall prepare a writtenmemorandum of each such subsequent purchase in which case the provisions of ORS83020 83030 and 83070 shall not be applicable Unless previously furnished in writingto the buyer by the seller by sales slipmemorandum or otherwise such memorandum shall set forth with respect to each subsequent purchase items required in subsections 1 to 7 of ORS 83030 and in addition the amount of the time balance owedby the buyer to the seller for the subsequentpurchase the outstanding balance of the previous contract or contracts the consolidatedtime balance and the revised instalments applicable to the consolidated time balance ifany in accordance with ORS 83030 Theseller shall deliver to the buyer a copy ofsuch memorandum prior to the due date ofthe first instalment of such consolidated contract

83150 Unenforceable contract provisions No provision of a retail instalmentcontract or retail charge agreement shall bevalid by which the buyer agrees not to assertagainst the seller or against an assignee aclaim or defense arising out of the sale1963 c489 15

83160 Waiver of ORS 83010 to 83190invalid No act or agreement of the retailbuyer before or at the time of the making ofa retail instalment contract retail chargeagreement or purchases thereunder shallconstitute a valid waiver of any of the provisions of ORS 83010 to 83190 or of anyremedies granted to the buyer by law1963 c489 16

83170 Effect of violation of ORS 83010to 83190 by seller Any seller who entersinto any contract or agreement which doesnot comply with the provisions of ORS 83010to 83190 or who violates any provision ofORS 83010 to 83190 except as a result of anaccidental or bona fide error shall be barredfrom the recovery of any service charge official fees or any delinquency or collectioncharge under or in connection with the relatedretail instalment contract or purchases undera retail charge agreement but the seller maynevertheless recover from the buyer anamount equal to the cash price of the goodsor services and the cost to the seller of anyinsurance included in the transaction1963 c489 181

2 When such subsequent purchases aremade if the seller has retained title or takena lien or other security interest in any of thegoods purchased under any one of the contracts included in the consolidation

a The entire amount of all paymentsmade prior to such subsequent purchasesshall be deemed to have been applied on theprevious purchases and

b The amount of any down paymenton the subsequent purchase shall be allocatedin its entirety to such subsequent purchase

3 The provisions of subsection 2 ofthis section shall not apply to cases wheresuch previous and subsequent purchases involve equipment parts or other goods attached or affixed to goods previously purchased and not fully paid or to services inconnection therewith rendered by the sellerat the buyers request1963 c489 11

6

83180 Enforcement of ORS 83010 to83190 assurance of compliance 1 TheAttorney General of the State of Oregon ora district attorney may bring an action in thename of the state against any person to restrain and prevent any violation of ORS83010 to 83190

2 In the enforcement of ORS 83010 to83190 the Attorney General of the State ofOregon may accept an assurance of discontinuance of any act or practice deemed inviolation of ORS 83010 to 83190 from anyperson engaging in or who has engaged insuch act or practice Any such assuranceshall be in writing and be filed with and subject to the approval of the circuit court ofthe county in which the alleged violator resides or has his principal place of businessor in Marion County Failure to perform theterms of any such assurance shall constituteprima facie proof of a violation of ORS

5283010 to 83190 for the purpose of securing

SUPERSEDED


any injunction as provided in subsection 1 in the business of holding retail instalmentof this section and for the purpose of ORS contracts acquired from retail buyers The83170 After commencement of any action term does not include the pledgee or other

by a district attorney the Attorney General holder of more than one retail instalment

may not accept an assurance of discontinu contract pledged or otherwise given by aance without the consent of the district retail seller or a transferee from him to aattorney lender as collateral security for a loan made1963 c489 19 20 to the retail seller or his transferee

4 Holder of a retail instalment con83190 Civil penalties Any person who tract means the retail seller of the motor

violates any order or injunction issued pur vehicle covered by the contract or if thesuant to ORS 83010 to 83190 shall forfeit contract is purchased or otherwise acquiredand pay a civil penalty of not more than by a financing agency or other assignee the1000 For the purpose of this section the financing agency or other assigneecircuit court issuing any injunction shall re 5 Motor vehicle or vehicle meanstain jurisdiction and the cause shall be con a A selfpropelled device used fortinued and in such cases the Attorney Gen transportation of person or property upon aeral acting in the name of the state may public highwaypetition for the recovery of civil penalties b A trailer semitrailer or trailer home1963 c489 21 The term does not include tractors power

83200 to 83500 Reserved for expansion shovels road machinery agricultural machinery or other machinery not designed

MOTOR VEHICLES primarily for highway transportation butNote ORS 83510 to 83680 do not apply to any which may be used incidentally to transport

contract executed before January 1 1958 but ORS83510 to 83680 do apply to any renewal or exten publichOrpersons orproperty Ori a P g Y

sion of an existing contract after December 31 1957 devices which move upon or are guided by aand to any new contract executed after January 1 track or travel through the air1958 See 1957 c625 26 29 6 Official fees means the filing or

83510 Definitions for ORS 83510 to other fees required by law to be paid to a83680 As used in ORS 83510 to 83680 ex public officer to perfect the interest or liencept where the context otherwise requires in or on a motor vehicle retained or taken

1 Cash sale price means the price for by a seller under a retail instalment contractand to file or record a release satisfaction

which the seller would sell to the buyer and or discharge of the contractthe buyer would buy from the seller themotor vehicle which is covered by the retail

Person means individual partner

instalment contract if the sale were a sale ship corporation association or other groupfor cash instead of a retail instalment sale however organized

8 Retail buyer or buyer means aThe cash sale price may include any taxesregistration license and other fees and person who buys a motor vehicle from a

retail seller and who executes a retail instalcharges for accessories and their installation ment contract in connection therewithand for delivering servicing repairing or 9 Retail instalment contract or conimproving the motor vehicle Fact means an agreement entered into in

2 Finance charge means that part of this state pursuant to which the title tothe time sale price which exceeds the aggre the property in or a lien upon a motor vegate of the cash sale price the amounts if hicle which is the subject matter of a reany included in a retail instalment sale for tail instalment sale is retained or taken byinsurance and other benefits and official a retail seller from a retail buyer as securityfees in whole or in part for the buyersobligation

3 Financing agency means a person The term includes a chattel mortgage a conengaged in whole or in part in purchasing ditional sales contract and a contract foror otherwise acquiring retail instalment con the bailment or leasing of a motor vehicletracts from one or more retail sellers The by which the bailee or lessee contracts toterm includes but is not limited to a bank pay as compensation for its use a sum subtrust company industrial loan companies or stantially equivalent to or in excess of itsloan associations and consumer credit com value and by which it is agreed that thepanies if so engaged The term also includes bailee or lessee is bound to become or has

a retail seller engaged in whole or in part the option of becoming the owner of the659

SUPERSEDED


motor vehicle upon full compliance with theterms of the contract

10 Retail instalment sale or salemeans a sale of a motor vehicle by a retailseller to a retail buyer for a time sale pricepayable in one or more instalments paymentof which is secured by a retail instalmentcontract The term includes a bailment orleasing as defined in subsection 9 of thissection It does not include a sale of a motorvehicle for resale in the ordinary course ofthe buyers business

11 Retail seller or seller means aperson who sells a motor vehicle to a retailbuyer pursuant to a retail instalment contract

12 Time sale price means the aggregate of the cash sale price of the motor vehicle the amount if any included for insurance and other benefits official fees andthe finance charge1957 c625 1

83520 Form and contents of retail instalment contract for motor vehicle 1 Aretail instalment contract shall be in writingshall contain all the agreements of the parties shall contain the names of the sellerand the buyer the place of business of theseller the residence or place of business ofthe buyer as specified by the buyer and adescription of the motor vehicle including itsmake year model model and identificationnumbers or marks and shall be signed bythe buyer and the seller

2 The printed portion of the contractshall be in at least eightpoint type The contract shall contain in printing or writing of asize equal to at least tenpoint bold type thefollowing

a Both at the top of the contract anddirectly above the space reserved for thesignature of the buyer the words RETAILINSTALMENT CONTRACT

b A specific statement that liabilityinsurance coverage for bodily injury andproperty damage caused to others is not included if that is the case and

c The following notice

NOTICE TO THE BUYER

Do not sign this contract before you readit or if it contains any blank space exceptthat if delivery of the vehicle is to be madeto you after this contract is signed the serialnumber or other identifying information andthe due date of the first instalment may befilled in at the time of delivery

654

You are entitled to a copy of this contract

You have the right to pay off in advancethe full amount due and to obtain a partialrefund of the finance charge

3 The contract shall contain the following items

a The cash sale price of the motor vehicle which is the subject matter of the retail instalment sale

b The amount of the buyersdown payment itemizing the amounts if any paid orcredited in money or in goods and containinga brief description of the goods traded in

c The difference between the items setforth in paragraphs a and b of this subsection

d The amount if any included for insurance and other benefits specifying thecoverages and benefits

e The amount if any of official feesas defined in subsection 6 of ORS 83510f The principal balance which is the

sum of the items set forth in paragraphsc d and e of this subsection

g The amount of the finance chargeh The time balance which is the sum

of the items set forth in paragraphs f andg of this subsection

1 The time sale pricej A plain and concise statement of the

amount in dollars of each instalment or future payment to be made by the buyer thenumber of instalments required and the dateor dates at which or period or periods inwhich the instalments are due

4 The contract may contain additionalitems to explain the calculations involved indetermining the stated time balance to bepaid by the buyer1957c625 2 3 5

83530 Filling blanks No retail instalment contract shall be signed by any partythereto when it contains blank spaces to befilled in after its execution except that ifdelivery of the motor vehicle is not made atthe time of execution the identifying numbers or marks of the motor vehicle or similarinformation and the due date of the firstinstalment may be inserted in the contracton or about the date of delivery1957 c625 8

83540 Delivery of copy of contract tobuyer The seller shall deliver to the buyeror mail to him at his address shown on thecontract a copy of the contract signed by

SUPERSEDED


the seller Until the seller does so a buyerwho has not received delivery of the motorvehicle shall have an unconditional right tocancel the contract and to receive immediaterefund of any amount paid and redeliveryof all goods delivered or traded in to theseller on account of or in contemplation ofthe contract An acknowledgment by thebuyer of delivery of a copy of the contractshall be printed or written in a size equal toat least tenpoint bold type and if contained

charges incident to investigating and makingthe contract and for the extension of thecredit provided for in the contract and nofee expense or other charge whatsoevershall be taken received reserved or contracted for except as provided in ORS 8356083590 83620 and 83630 and except forthose items expressly provided for in theretail instalment contract as set forth in subsections 3 and 4 of ORS 835201957 e625 22

In the contract shall also appear direct1y 83580 Insurance 1 The amount ifabove the legend required above the buyers any included for automobile insurance shallsignature by paragraph a of subsection not exceed the premiums chargeable in ac2 of ORS 83520 cordance with rate filings made by the in1957 c625 41

83550 1957c625 8 repealed by 1961c458 1surer with the State Insurance Commissionerfor such insurance

83560 Finance charge 1 A retail 2 The amount if any included for lifeseller may in a retail instalment contract health and accident or other insurance othercontract for and charge receive and collect than automobile insurance shall not exceeda finance charge of 25 or a finance charge the premiums charged by the insurernot in excess of the following rates which 3 The seller or financing agency if anever is greater amount for automobile or other insurance

a Any new motor vehicle designated on the motor vehicle is included in a retailby the manufacturer by a year model not instalment contract shall within 30 daysearlier than one year prior to the year in after execution of the retail instalment conwhich the sale is made not more than 8 tract send or cause to be sent to the buyerper 100 of principal balance a policy or policies or certificate of insur

b Any new motor vehicle not included ante written by an insurance company auin subsection 1 of this section and any thorized to do business in this state clearlyused motor vehicle designated by the manu setting forth the amount of the premiumfacturer by a year model not earlier than the kind or kinds of insurance and the scopetwo years prior to the year in which the sale of the coverage and all the terms exceptionsis made not more than 10 per 100 of prin limitations restrictions and conditions ofcipal balance the contract or contracts of insurance The

c Any used motor vehicle not included buyer of a motor vehicle under a retail inin subsection 2 of this section not more stalment contract shall have the privilege ofthan 12 per 100 of principal balance purchasing such insurance from an agent of

2 The finance charge allowed by sub his own selection and of selecting an insursection 1 of this section shall apply to con ance company acceptable to the seller protracts payable in 12 successive monthly in vided however that the inclusion of the instalments of substantially equal amounts surance premium in the retail instalmentThe finance charge which may be charged contract when the buyer selects the agentin contracts payable over a period at more or company shall be optional with the selleror less than 12 successive months shall be and in such case the seller or financingdecreased or increased proportionately ac agency shall have no obligation to send orcording to the period over which the pay cause to be sent to the buyer the policy orments are to be made certificate of insurance

3 When a retail instalment contract 4 If an insurance policy or certificateprovides for unequal or irregular instal that was obtained for an amount includedments the finance charge shall be at the in the retail instalment contract is canceledeffective rate provided in subsection 1 of the unearned insurance premium refund rethis section giving due regard to the sched ceived by the holder of the contract shall beule of instalments credited to the last maturing instalments of1957c625 19 20 21 the retail instalment contract except to the

83570 Extra charges prohibited The extent applied toward payment for similarfinance charge shall be inclusive of all insurance protecting the interests of the

65n

SUPERSEDED

83590 COMMERCIA TRANSACTIONS

buyer or of the buyer and the holder of thecontract

1957 c625 6

83590 Delinquency and collection

charges The holder of a retail instalmentcontract may if the contract so providescollect a delinquency charge on each instalment in default for a period of 10 days orlonger The delinquency charge for any instalment shall not exceed five percent of thedelinquent instalment or 5 whichever isless In addition to the delinquency chargethe retail instalment contract may providefor the payment of reasonable collectioncosts which may include the payment ofreasonable attorneys fees where such contract is referred to an attorney not a salaried employe of the holder of the contractfor collection plus the court costs and disbursements1957 c625 7

83600 Statements receipts Upon written request from the buyer the holder of aretail instalment contract shall give or forward to the buyer a written statement of thedates and amounts of payments made andthe total amount unpaid on the contract Abuyer shall be given a written receipt forany payment when made in cash1957 c625 12

83610 Delivery to buyer of instrumentindicating full payment release of securityAfter the payment of all sums for which thebuyer is obligated under a retail instalmentcontract or other security agreement as defined in ORS 791050 and upon written demand made by the buyer the holder of suchcontract or agreement shall mail to the buyerat his last known address good and sufficient instruments to indicate payment in fulland to release all security in the motor vehicle This section is supplementary to and isnot restrictive of ORS 86440 86460 and481410 or of ORS 791010 to 7950701957 c625 23 1961 c726 400

83620 Voluntary prepayment by buyerrefund Notwithstanding the provisions ofa retail instalment contract to the contrarythe buyer may pay in full at any time beforematurity the obligation contained in the retail instalment contract Upon such premature payment the buyer shall receive a refund credit The amount of the refund creditshall not be less than that proportion of thefinance charge after first deducting from

E

such finance charge an acquisition cost ofnot more than 15 as the sum of the periodic time balances after the month in whichprepayment is made bears to the sum of allthe periodic time balances under the schedule of instalments in the original contractWhere the amount of the credit for premature payment is less than 1 no refund needbe made This section does not prohibit theholder of a retail instalment contract fromcollecting any charge cost or fee under ORS835901957 c625 24

83630 Extension of scheduled due datedeferment of scheduled payment The holderof a retail instalment contract may uponagreement with the buyer extend the scheduled due date or defer the scheduled payment of all or part of any instalment or instalments In any such case the holder mayrestate the amount of the instalments andthe time schedule therefor and collect as arefinance charge for such extension or deferment a flat service fee not to exceed 5 anda total additional charge not exceeding anamount equal to one percent per monthsimple interest on the respective descendingbalances computed from the date of suchagreement of extension or deferment1957 c625 25

83640 1957 c625 10 11 repealed by 1961c726 4271

83650 Effect of negotiation of notes onbuyers rights against seller 1 No retailinstalment contract shall require or entailthe execution by the buyer of any note orseries of notes which when separately negotiated will cut off as against third partiesany right of action or defense which thebuyer may have against the seller

2 The rights of a holder in due courseof any negotiable instrument executed contrary to subsection 1 of this section arenot impaired by reason of the violation ofsubsection 1 of this section but the buyermay bring an action against the seller forthe recovery of any loss or expense including attorneys fees in defending an actionon the instrument by the holder incurred byreason of the violation of subsection 1 ofthis section The buyers action may bejoined with any other right of action he hasagainst the seller arising out of the instalment sale

561957 c625 9

SUPERSEDED

RETAIL INSTALMENT CONTRACTS

83660 Acceleration provision No provision in a retail instalment contract bywhich in the absence of the buyers defaultthe holder may arbitrarily and without reasonable cause accelerate the maturity ofany part or all of the time balance is enforceable This section does not prohibit provisions in a retail instalment contract accelerating any part or all of the time balancein the event of sale or transfer or removaloutside the state of the motor vehicle covered by the contract1957 c625 13

83670 Unenforceable contract provisions 1 No provision in a retail instalmentcontract for confession of judgment powerof attorney therefor or wage assignment isenforceable

2 No provision in a retail instalmentcontract which authorizes a seller or holderof the contract or other person acting on hisbehalf to enter upon the buyers premisesunlawfully or to commit any breach of thepeace in the repossession of a motor vehicleis enforceable

3 No provision in a retail instalmentcontract by which the buyer waives any rightof action against the seller or holder of thecontract or other person acting on his behalf for any illegal act committed in thecollection of payments under the contract orin the repossession of the motor vehicle isenforceable

4 No provision in a retail instalmentcontract by which the buyer executes a power of attorney appointing the seller or holderof the contract or other person acting onhis behalf as the buyers agent in collectionof payments under the contract or in therepossession of the motor vehicle is enforceable

5 No provision in a retail instalmentcontract relieving the seller from liability

83990

for any legal remedies which the buyer mayhave had against the seller under the contract or any separate instrument executedin connection therewith is enforceable1957c625 14 15 16 17 18

83680 Waiver of provisions of ORS83510 to 83680 void Any waiver of the provisions of ORS 83510 to 83680 shall be unenforceable and void1957 c625 281


PENALTIES

83990 Penalties 1 Any person whowilfully and intentionally violates any provision of ORS 83510 to 83680 shall uponconviction be punished by a fine not to exceed 500

2 A wilful violation of ORS 83520 to83600 or 83650 to 83670 by any personshall bar his recovery of any finance chargedelinquency or collection charge or refinancing charge on the retail instalment contract involved

3 Notwithstanding the provisions ofsubsections 1 to 3 of this section anyfailure to comply with any provision of ORS83510 to 83680 may be corrected within 10days after the holder is notified thereof inwriting by the buyer and if so correctedneither the seller nor the holder shall be subject to any penalty

4 Any person who wilfully and intentionally violates any provision of ORS 83010to 83190 shall upon conviction be punishedby a fine of not more than 1000 or by imprisonment for not more than six months orboth Violation of any order or injunctionissued pursuant to ORS 83010 to 83190shall constitute prima facie proof of a violation of this subsection1957 c625 27 1961 c725 401 subsection 4 enacted as 1963 c489 17

657

SUPERSEDED

COMMERCIAL TRANSACTIONS

CERTIFICATE OF LEGISLATWE COUNSEL

Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I have comparedeach section printed in this chapter with the original section in the enrolled bill and that the sections inthis chapter are correct copies of the enrolled sections with the exception of the changes in form permittedby ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haleyon December 1 1963 Legislative Counsel

CHAPTERS 84 AND 85Reserved for expansion

658

SUPERSEDED

CHAPTER

RESERVED

FOR

EXPANSIONSUPERSEDED

TITLE 9

MORTGAGES AND LIENS

Chapter 86 Mortgages Trust Deeds87 Statutory Liens88 Foreclosure of Liens Generally

Chapter 86


Mortgages Trust Deeds

86010

86020

86030

86040

86050

REAL PROPERTY MORTGAGES

Nature of mortgageesinterestCovenant to pay money not impliedAbsolute deed as a mortgage

Improvements on mortgaged landsPayment of taxes and other charges by

mortgageeAssignment of mortgageRecord of assignmentRecord of assignment not notice to mort

gagor

Discharge by entry in margin of recordDischarge of record on deed of releaseDischarge of record by owner and holder of

mortgage note who is not the mortgageeof record

Discharge of mortgage on real propertyeffect of discharge

Discharge by foreign executors administrators and guardiansLiability of mortgagee for failure to dis

charge mortgage

INVESTMENTS FEDERAL HOUSINGADMINISTRATOR

86610 Power of banks fiduciaries and others tomake loans secured by property insuredby Federal Housing Administrator

86620 Investment of funds of banks fiduciariesand others in bonds and mortgages accepted by Federal Housing Administrator debentures issued by him and obligations of national mortgage associations

86630 Eligibility of securities described in ORS86620 as security for deposits investmentor reserve of securities

86640 Applicability of other laws requiring security or regulating loans and investments

86060

86070

86080

86090

86100

86110

86120

86130

86140

86405

86440

86460

86470

CHATTEL MORTGAGES

Secretary of State to furnish statement ofmortgages filed before September 1 1963fee

Discharge of mortgage recorded or filedwith county recording officer

Discharge of mortgage filed with SecretaryOf State

Discharge assignment and foreclosure ofmortgages on chattels registered andlicensed by Department of Motor Vehicles

65E

TRUST DEEDS

86705 Definitions for ORS 86705 to 8679586710 Trust deeds authorized to secure perform

ance of an obligation methods of foreclosure after breach

86715 Trust deed deemed to be mortgage on realproperty

86720 Reconveyance upon performance liabilityfor failure to reconvey

86725 Time within which foreclosure must becommenced

86735 Foreclosure by advertisement and sale86740 Notice of sale to be mailed to certain per

sons

86745 Contents of notice of sale86750 Service of notice on occupants of property

or posting notice publication of noticerecording proof of compliance with ORS86740 to 86750

SUPERSEDED


86755 Sale of property86760 Discontinuance of foreclosure proceedings

when entire amount of default paid86765 Disposition of proceeds of sale86770 Effect of sale

86775 Contents of trustees deed to purchaser86780 Recitals in trustees deed and certain affi

davits as prima facie or conclusive evidence

86785 Requests for copies of notice of default ornotice of sale

86790 Qualifications of trustees appointment ofsuccessor trustee

86795 Compensation of trustee

86990 Penalties

PENALTIES

CROSS REFERENCES

Credit accident and health insurance 741415Designation of insurer by lender prohibited 736705

to 736755

Dower in mortgaged lands 113120 to 113150Fees filing and recording Ch 205Foreclosure of liens Ch 88

Fraudulent conveyances Ch 95Gambling debt as consideration for a mortgage

465090

Guardian mortgaging wards property 126265126406 to 126495

Public utility as mortgagor approval of PublicUtility Commissioner 757155

Real property mortgage foreclosure when barred88110 88120

Recording generally Ch 93Recording officers Ch 205Redemption generally 23510 to 23590Redemption mortgagor deceased 116140 to 116165Retail instalment contracts Ch 83

Secured transactions Ch 79State Tax Commission as party in cases involving

state tax liens 305130Torrens system as affects mortgage 94205 94305

94335 to 94365 94835Unit of property under unit ownership effect of lien

by association 91580

86020

Purchase money mortgage no deficiency judgmentpermitted 88070

86040

Fixtures priority of security interests in 793130Priority mortgage and lien for preparing land for

construction or cultivation 87265Priority mortgage and mechanicslien 87025Sale of improvements for mechanics lien 87025

86050

City assessment delinquency sale of mortgagedproperty notice to mortgagee 312390 to 312420

Tax foreclosure list containing mortgaged propertynotice to mortgagee 312140 312150

86060Assignment of chose in action Ch 80Mortgage as security for retail instalment contract

83020

86070

Fee for recording or filing mortgage assignment205320

86120

Attaching creditor as a purchaser in good faith forvalue 29150

Unit of property under unit ownership removalfrom blanket mortgage 91570

86405

Validity of transactions entered into before September 1 1963 under sections amended or repealedby Uniform Commercial Code 1961 c726 427

86440

Fee for filing and recording mortgage discharge205320

Motor vehicle retail instalment contract satisfactionof 83610

86460Motor vehicle retail instalment contract satisfaction

of 8361086610

Insurance companies investment in loans guaranteedby FHA 738238

State Treasurer investing in bonds and mortgagesinsured by FHA 293710

86630

Security for deposit of public funds 295110 29544086705

Trusteesduty to execute trust 128010

is

660

SUPERSEDED

u

MORTGAGES TRUST DEEDS

REAL PROPERTY MORTGAGES

86010 Nature of mortgagees interestA mortgage of real property is not a conveyance so as to enable the owner of themortgage to recover possession of the property without a foreclosure and sale Thissection is not intended as a limitation uponthe right of the owner of real property tomortgage or pledge the rents and profitsthereof nor as prohibiting the mortgageeor pledgee of such rents and profits or anytrustee under a mortgage or trust deed fromentering into possession of any real property other than farm lands or the homestead of the mortgagor or his successor ininterest for the purpose of operating thesame and collecting the rents and profitsthereof for application in accordance withthe provisions of the mortgage or trust deedor other instrument creating the lien noras any limitation upon the power of a courtof equity to appoint a receiver to takecharge of the property and collect the rentsand profits thereof

86020 Covenant to pay money not implied No mortgage shall be construed asimplying a covenant for the payment of thesum thereby secured When there is no express covenant for such payment containedin the mortgage and no bond or other separate instrument to secure such paymentshall have been given the remedies of themortgagee shall be confined to the landsmentioned in the mortgage

86030 Absolute deed as a mortgageWhen a deed purports to be an absoluteconveyance in terms but is made or intended to be made defeasible by a deed of defeasance or other instrument the originalconveyance shall not be thereby defeated oraffected as against any person other thanthe maker of the defeasance or his heirs ordevisees or persons having actual noticethereof unless the instrument of defeasanceis recorded with the recording officer of thecounty where the lands lie

86040 Improvements on mortgagedlands No person shall sell dispose of remove or damage any building or other improvements upon mortgaged lands All suchimprovements are deemed a part of themortgaged property and are subject to themortgage lien When any improvements areremoved from the mortgaged premises inviolation of this section the mortgagee mayfollow and regain possession of such im

86100

provements wherever found or may recoverthe reasonable value thereof from the person removing them

86050 Payment of taxes and othercharges by mortgagee Whenever a mortgagor fails to pay when due any taxes assessments interest on prior mortgages insurance premiums or other charges necessary to be paid for the protection of the lienof a mortgagee the mortgagee may pay thesame and such payments shall be added tothe mortgage debt and secured by the mortgage held by the mortgagee and shall bearinterest at the same rate as specified in themortgage This section applies only to mortgages executed after June 3 1929 and doesnot affect the right of parties to specificallycontract otherwise than as provided in thissection

86060 Assignment of mortgage Mortgages may be assigned by an instrument inwriting executed and acknowledged withthe same formality as required in deeds andmortgages of real property and recordedin the records of mortgages of the countywhere the land is situated

86070 Record of assignment Everyassignment of mortgage shall be recorded atfull length and a reference shall be made tothe book and page containing such assignment upon the margin of record of the mortgage

86080 Record of assignment not noticeto mortgagor The recording of the assignment of a mortgage is not of itself notice ofsuch assignment to the mortgagor his heirsor personal representatives so as to invalidate a payment made by any of them to themortgagee

86090 Discharge by entry in margin ofrecord Any recorded mortgage may be discharged by an entry in the margin of therecord thereof signed by the mortgageehis personal representative or assigneeacknowledging the satisfaction of the mortgage in the presence of the recording officer or his deputy who shall subscribe thesame as a witness Such entry shall have thesame effect as a deed of release duly acknowledged and recorded

86100 Discharge of record on deed ofrelease Any mortgage shall also be discharged upon the record thereof by therecording officer in whose custody it is whenever there is presented to him a certificate

661

SUPERSEDED

86110 MORTGAGES AND LIENS

executed by the mortgagee his personalrepresentatives or assigns acknowledged orproved and certified as prescribed by lawto entitle conveyances to be recorded specifying that such mortgage has been paid orotherwise discharged Every such certificate and the proof or acknowledgmentthereof shall be recorded at full length anda reference shall be made to the book and

page containing such record in the minuteof the discharge of such mortgage made bythe recording officer upon the record thereof

86110 Discharge of record by ownerand holder of mortgage note who is not themortgagee of record 1 Whenever a promissory note secured by mortgage on realproperty is transferred by indorsementwithout a formal assignment of the mortgage and the mortgage is recorded themortgage upon payment of the promissorynote may be discharged of record by theowner and holder of the promissory notemaking and filing with the recording officerin whose custody the record of such mortgage is a certificate verified by his oathdeclaring in substance that he is the ownerand holder of the note secured by said mortgage by indorsement of the mortgagee andthat the note has been fully paid and proving that fact to the satisfaction of therecording officer and delivering the originalnote to such officer

2 Upon receiving the certificate andoriginal note the recording officer shallenter them in full length upon the recordbook of mortgages and a reference shallbe made to the book and page containingsuch record in the minute of discharge ofthe mortgage made upon the record thereofand he shall note in the index of mortgagesthe discharge thereof and such entry shallhave the same effect as a deed of release of

the mortgagee duly acknowledged and recorded

subsequent purchasers and incumbrances forvalue and without notice

86130 Discharge by foreign executorsadministrators and guardians Foreign executors administrators and guardians maydischarge mortgages upon the records ofany county upon recording with the recording officer of the county in which the mortgage is recorded a certified and authenticated copy of their letters testamentary orof administration or of guardianship Thecertificate or authentication shall include astatement that the letters have not beenrevoked and such certificate shall be recorded in the mortgage records

86140 Liability of mortgagee for failure to discharge mortgage If any mortgagee or his personal representative or assignee after full performance of the condition of the mortgage before or after abreach thereof shall within 30 days afterbeing thereto requested and after tender ofhis reasonable charges fail to discharge thesame or to execute and acknowledge a certificate of discharge or release thereof heshall be liable to the mortgagor his heirs orassigns in the sum of 100 damages andalso for all actual damages occasioned bysuch failure to be recovered in an action

at law The owner and holder of the promissory note referred to in ORS 86110 is deemed the personal representative of the mortgagee for the purposes of this s e c t i o nAmended by 1955 c29 1 1955c512 1186150 to 86300 Reserved for expansion

86310 Amended by 1955 c21 1 repealed by1961 c726 427

86315 1953 c700 2 repealed by 1961 c726427

86320 Repealed by 1961 c726 427

86330 Repealed by 1961 c726 42786340 Repealed by 1961 c726 42786120 Discharge of mortgage on real

property effect of discharge No mortgageupon real property shall be discharged except as provided in ORS 86110 or by theperson appearing upon the records of thecounty where the mortgage is recorded tobe the owner thereof A discharge of themortgage by such person shall operate tofree the land described in the mortgagefrom the lien of the mortgage as against all

662

86350 Amended by 1955 c182 1 repealed by1961 c726 427

86360 Repealed by 1961c726 427

86370 Amended by 1957 c404 l repealed by1961 c726 427

86380 Repealed by 1961 c726 427

86390 Repealed by 1961 c726 427

86400 Repealed by 1961 c726 427

SUPERSEDED

MORTGAGES TRUST DEEDS 866

CHATTEL MORTGAGES

86405 Secretary of State to furnishstatement of mortgages filed before September 1 1963 fee Upon the payment of afee of 50 cents for each name to be searchedfor chattel mortgages filed under formerORS 86370 or 86390 prior to September 11963 the Secretary of State shall furnish toany person applying therefor a statement ofany mortgages noted on the indexes createdunder former ORS 86380 or if no mortgages are noted a statement to that effectAll such fees received by the Secretary ofState shall be promptly paid to the StateTreasurer and placed in the General Fund1961 c726 409

86410 Repealed by 1961c726 42786420 Repealed by 1961 c726 427

86430 Repealed by 1961 c726 4271

86440 Discharge of mortgage recordedor filed with county recording officer 1Whenever any mortgage recorded or filedunder the provisions of ORS 86350 is paidor otherwise satisfied it shall be dischargedby the indorsing by the owner of recordupon the original instrument if filed orupon the margin of the record thereof ifrecorded of a notation attested by thecounty recording officer of such dischargeor by the filing with the recording officerof a certificate of such owner executed andacknowledged with the same formalities asare prerequisite to the filing or recording ofany such mortgage showing the date of execution date of filing or recording and filenumber or volume and page of the recordthereof and that such mortgage has beenfully discharged

2 Upon receipt of the fee prescribedby law the recording officer shall preparesuch notation and attest the execution of itor file such certificate in an appropriateplace in his office Upon the making of theentry or the filing of the certificate the recording officer shall deliver the originalmortgage to the mortgagor his personalrepresentatives or assigns if such mortgageshall have been filed and shall enter theword satisfied with the date thereof opposite each entry of the mortgage in theindex

86450 Repealed by 1961 c726 427

86460 Discharge of mortgage filed withSecretary of State In the event of the satis

faction or release of any chattel mortgagea certified copy of which has been filed withthe Secretary of State prior to September 11963 the person so satisfying or releasingthe mortgage shall send a duly executeddischarge or certified copy thereof with afee of 25 cents to the Secretary of Statewho shall note such discharge in an appropriate column of the index kept by him Allsuch fees received by the Secretary of Stateshall be promptly paid to the State Treasurer and placed in the General FundAmended by 1961 c726 407

86470 Discharge assignment and foreclosure of mortgages on chattels registeredand licensed by Department of Motor Vehicles The recording officer of counties having less than 50000 population on the lastday of each calendar month and the recording officer of counties having more than50000 population on the last day of eachcalendar week shall notify the Departmentof Motor Vehicles upon forms to be providedby the department of the partial or full satisfaction assignment or foreclosure duringsuch period of all mortgages theretofore certified to the department prior to September1 1963 as formerly provided in ORS 86390The notice shall completely identify the mortgage so satisfied assigned or foreclosedand the department thereupon shall note oneach index margin such satisfaction assignment or foreclosureAmended by 1961 c726 4081

86480 Repealed by 1961 c726 42786490 Repealed by 1961 c726 42786500 Amended by 1955 c30 l repealed by

1961 c726 427

86510 Repealed by 1961 c726 427

86520 Repealed by 1961e726 427186530 to 86600 Reserved for expansion

INVESTMENTS FEDERALHOUSING ADMINISTRATOR

86610 Power of banks fiduciaries andothers to make loans secured by propertyinsured by Federal Housing AdministratorBanks trust companies insurance companies savings and loan associations trustees guardians executors administratorsother fiduciaries and all other persons associations and corporations subject to thelaws of this state may make such loanssecured by real property or leasehold as theFederal Housing Administrator insures or

663

SUPERSEDED


makes a commitment to insure and mayobtain such insurance

86620 Investment of funds of banksfiduciaries and others in bonds and mortgages accepted by Federal Housing Administrator debentures issued by him and obligations of national mortgage associationsBanks trust companies insurance companies savings and loan associations trustees guardians executors administratorsother fiduciaries and all other persons associations and corporations subject to thelaws of this state may invest their fundsand the moneys in their custody or possession eligible for investment in bonds andmortgages on real property insured by theFederal Housing Administrator in debentures issued by the Federal Housing Administrator and in obligations of national mortgage associations

86630 Eligibility of securities describedIn ORS 86620 as security for deposits investment or reserve of securities Whenever by statute collateral is required assecurity for the deposit of public or otherfunds or deposits are required to be madewith any public official or department or aninvestment of capital or surplus or a reserveor other fund is required to be maintainedconsisting of designated securities the securities described in ORS 86620 shall beeligible for such purposes

86640 Applicability of other laws requiring security or regulating loans and investments No law of this state requiring security upon which loans or investments maybe made or prescribing the nature amountor form of such security or prescribing orlimiting the period for which loans or investments may be made shall apply to loans orinvestments made pursuant to ORS 86610and 86620


TRUST DEEDS

86705 Definitions for ORS 86705 to

86795 As used in ORS 86705 to 86795unless the context requires otherwise

1 Beneficiary means the personnamed or otherwise designated in a trustdeed as the person for whose benefit a trustdeed is given or his successor in interestand who shall not be the trustee

2 Grantor means the person conveying real property by a trust deed as securityfor the performance of an obligation

6

3 Trust deeds means a deed executedin conformity with ORS 86705 to 86795 andconveying real property to a trustee in trustto secure the performance of an obligationowed by the grantor or other person namedin the deed to a beneficiary

4 Trustee means a person to whomthe legal title to real property is conveyedby a trust deed or his successor in interest

5 Three acres means three acres ofland Where the trust deed states that thereal property involved does not exceed threeacres such statement shall be binding uponall parties and conclusive as to compliancewith the provisions of ORS 86705 to 86795relative to the power to make a transfertrust and power of sale If by a bona fidemistake of either party the property slightlyexceeds three acres the mistake shall notmake the trust deed void1959c625 1 1961c616 1

86710 Trust deeds authorized to secureperformance of an obligation methods offoreclosure after breach After August 91961 transfers in trust of any estate in realproperty not exceeding three acres may bemade to secure the performance of angation of a grantor or any other personnamed in the deed to a beneficiary Whereany transfer in trust of any estate in realproperty is made pursuant to the provisionsof ORS 86705 to 86795 to secure the performance of an obligation a power of saleis conferred upon the trustee The power ofsale may be exercised after a breach of theobligation for which the transfer is securityand a trust deed executed in conformity withORS 86705 to 86795 may be foreclosed byadvertisement and sale in the manner provided in ORS 86705 to 86795 or at theoption of the beneficiary by foreclosure asprovided by law for the foreclosure of mortgages on real property1959c625 2 1961c616 2

86715 Trust deed deemed to be mortgage on real property A trust deed is deemedto be a mortgage on real property and is subject to all laws relating to mortgages on realproperty except to the extent that such lawsare inconsistent with the provisions of ORS86705 to 86795 in which event the provisions of ORS 86705 to 86795 shall controlFor the purpose of applying the mortgagelaws the grantor in a trust deed is deemedthe mortgagor and the beneficiary is deemedthe mortgagee

341959 c625 21

is

SUPERSEDED


86720 Reconveyance upon performanceliability for failure to reconvey Upon performance of the obligation secured by thetrust deed the trustee upon written requestof the beneficiary shall reconvey the estateof real property described in the trust deedto the grantor In the event the obligation isperformed and the beneficiary refuses to request reconveyance or the trustee refuses toreconvey the property the beneficiary ortrustee so refusing shall be liable as provided by ORS 86140 in the case of refusalto execute a discharge or satisfaction of amortgage on real property1959 c625 18

86725 Time within which foreclosuremust be commenced The foreclosure of a

trust deed by advertisement and sale or theforeclosure of a trust deed by judicial procedure shall be commenced within the timeincluding extensions provided by ORS 88110and 88120 for the foreclosure of a mortgageon real property1959 c625 2086780 1959 c625 17 22 repealed by 1961

c616 8

86735 Foreclosure by advertisement andsale 1 The trustee may foreclose a trustdeed by advertisement and sale under ORS86705 to 86795 if

a The trust deed any assignments ofthe trust deed by the trustee or the beneficiary and any appointment of a successortrustee are recorded in the mortgage recordsin the counties in which the property described in the deed is situated and

b There is a default by the grantor orother person owing an obligation the performance of which is secured by the trustdeed or by their successors in interest withrespect to any provision in the deed whichauthorizes sale in the event of default ofsuch provision and

c The trustee or beneficiary has filedfor record in the county clerks office in eachcounty where the trust property or somepart of it is situated a notice of defaultcontaining the information required by ORS86745 and containing the trustees or beneficiarys election to sell the property to satisfy the obligation and

d No action suit or proceeding hasbeen instituted to recover the debt or anypart of it then remaining secured by thtrust deed or if such action or proceedinghas been instituted the action or proceedinghas been dismissed

2 A trust deed may be foreclosed inthe manner provided in ORS 86740 to 867601959 c625 4 5

86740 Notice of sale to be mailed to

certain persons 1 Subsequent to recording notice of default as provided in subsection 1 of ORS 86735 and at least 120 daysbefore the day fixed by the trustee for thetrustees sale notice of the sale shall begiven by registered or certified mail to thelast known address of the following personsor their legal representatives if any

a The grantor in the trust deedb Any successor in interest to the

grantor whose interest appears of record orof whose interest the trustee or the bene

ficiary has actual noticec Any lessee or other person in pos

session of or occupying the propertyd Any person having a lien or interest

subsequent to the interest of the trustee inthe trust deed where such lien or interest appears of record or where the trustee or thebeneficiary has actual notice of such lienor interest

e Any person requesting notice as provided in ORS 86785

2 The disability insanity or death ofany person to whom notice of sale must begiven under subsection 1 of this sectionshall not delay or impair in any way thetrustees right under a trust deed to foreclose under the deed If the disability insanity or death occurs prior to the time whennotice to any such person must be mailedthe notice shall be given instead to the legalguardian or the administrator or executor ofthe person as the case may be in the manner and by the time set forth in subsection1 of this section If the disability insanityor death occurs on or after the date the

notice is mailed the trustee shall if andwhen he has knowledge of the disability insanity or death promptly give the legalguardian or the administrator or executor ofthe person as the case may be the noticeprovided in ORS 86745 Such notice shallbe given by registered or certified mail tothe last known address of the legal guardianor administrator or executor1959c625 6 1961c616 3

86745 Contents of notice of sale Thenotice of sale shall set forth

e 1 The names of the grantor trusteeand beneficiary in the trust deed

2 A description of the property covered by the trust deed

665

SUPERSEDED


3 The book and page of the mortgagerecords where the trust deed is recorded

4 The default for which the foreclosureis made

5 The sum owing on the obligation secured by the trust deed

6 The date time and place of the salewhich shall be held at a designated timeafter 9 am and before 4 pm Pacific Standard Time and at a designated place in thecounty or one of the counties where theproperty is situated1959c625 7 1961c616 4

86750 Service of notice on occupants ofproperty or posting notice publication ofnotice recording proof of compliance withORS 86740 to 86750 1 If there be occupants of the property described in the deedthe notice prescribed in ORS 86745 shall bepersonally served upon them in the mannerin which a summons is served if the property be vacant or if after reasonable effortsto do so the notice has not been personallyserved on the occupants of the property thenotice shall be posted in a conspicuous placeon the property

2 A copy of the notice of sale shall bepublished in a newspaper of general circulation in each of the counties in which the

property is situated once a week for foursuccessive weeks The last publication shallbe made at least 20 days prior to the date ofsale

3 Prior to the date of sale an affidavitof mailing notice of sale proof of personalservice if any an affidavit of postingwhen posting is required and an affidavitof publication of notice of sale shall be recorded in the mortgage records in the county or counties in which the property described in the deed is situated1959c625 8 1961c616 5

86755 Sale of property 1 The saleshall be held on the date and at the time andplace designated in the notice of sale Thetrustee may sell the property in one parcelor in separate parcels and shall sell the parcel or parcels at auction to the highest bidder Any person including the beneficiaryunder the trust deed but excluding the trustee may bid at the trustees sale The attorney for the trustee may conduct the saleand act in the sale as the auctioneer of thetrustee

2 The purchaser at the sale shall pathe price bid and upon receipt of paymentthe trustee shall execute and deliver the trus

tees deed to the purchaser In the event thepurchaser refuses to pay the purchase pricethe officer making the sale shall have theright to resell or reject any subsequent bidas provided by law in the case of sales underexecution

3 The trustees deed shall convey tothe purchaser the interest in the propertywhich the grantor had or had the power toconvey at the time of the execution by himof the trust deed together with any interestthe grantor or his successors in interestacquire after the execution of the trust deed

4 The purchaser at the trustees saleshall be entitled to possession of the property on the tenth day following the sale andany persons remaining in possession afterthat day under any interest except one priorto the trust deed shall be deemed to betenants at sufferance1959 c625 9

86760 Discontinuance of foreclosure

proceedings when entire amount of defaultpaid Whenever all or a portion of any obligation secured by a trust deed has becomedue by reason of a default of any part ofthat obligation including taxes assessmentspremiums for insurance or advances madeby a beneficiary in accordance with theterms of the trust deed the grantor or hissuccessor in interest in the trust propertyor any part of it any beneficiary under asubordinate trust deed or any person havinga subordinate lien or encumbrance of recordon the property at any time prior to thetime and date set by the trustee for thetrustees sale if the power of sale therein isto be exercised may pay to the beneficiaryor his successors in interest respectively theentire amount then due under the terms ofthe trust deed and the obligation securedthereby including costs and expenses actually incurred in enforcing the terms of the obligation and trustees and attorneys feesactually incurred not exceeding 50 otherthan such portion of the principal as wouldnot then be due had no default occurredand thereby cure the default After paymentof this amount all proceedings had or instituted to foreclose the trust deed shall be dismissed or discontinued and the obligationand trust deed shall be reinstated and shallremain in force the same as if no acceleration had occurred1959c625 10 1961 c616 6

y 86765 Disposition of proceeds of saleThe trustee shall apply the proceeds of thetrusteessale as follows

666

lu

SUPERSEDED


1 To the expenses of the sale includinga reasonable charge by the trustee

2 To the obligation secured by thetrust deed

3 To all persons having recorded lienssubsequent to the interest of the trustee in thetrust deed as their interests may appear inthe order of their priority

4 The surplus if any to the grantor ofthe trust deed or to his successor in interestentitled to such surplus1959 c625 11

86770 Effect of sale 1 A sale madeby a trustee under ORS 86705 to 86795 shallforeclose and terminate all interest in the

property covered by the trust deed of allpersons to whom notice is given under ORS86740 and of any other person claiming bythrough or under such persons and suchpersons shall have no right to redeem theproperty from the purchaser at the trusteessale The failure to give notice to any ofthese persons shall not affect the validity ofthe sale as to persons so notified

2 When a sale is made by a trusteeunder ORS 86705 to 86795 or under a judicial foreclosure no other or further actionsuit or proceedings shall be taken nor judgment entered for any deficiency against thegrantor or his surety guarantor successorin interest if any on the note bond or otherobligation secured by the trust deed oragainst any other person obligated on suchnote bond or other obligation1959c625 1213

86775 Contents of trustees deed to

purchaser The trustees deed to the purchaser at the trustees sale shall contain inaddition to a description of the property conveyed a recital of the facts concerning thedefault the notice given the conduct of thesale and the receipt of the purchase moneyfrom the purchaser1959 c625 14

86780 Recitals in trustees deed and

certain affidavits as prima facie or conclusive evidence When the trustees deed isrecorded in the deed records of the county orcounties where the property described in thedeed is situated the recitals contained in thedeed and in the affidavits required under subsection 3 of ORS 86750 shall be prima facieevidence in any court of the truth of the matters set forth herein but the recitals shallbe conclusive in favor of a purchaser fovalue in good faith relying upon them1959 c625 15

86785 Requests for copies of notice ofdefault or notice of sale At any time subsequent to the recordation of a trust deed andprior to a recording of notice of default under the deed any person desiring a copy ofany notice of default or any notice of saleunder a trust deed as provided in subsection1 of ORS 86740 may cause to be filed forrecord in the county clerks office of thecounty or counties in which any part orparcel of the real property is situated a dulyacknowledged request for a copy of anynotice of sale or default where service ismade upon the trustee The request shallcontain the name and address of the personrequesting copies of the notice or noticesand shall identify the trust deed by statingthe names of the parties to the deed the dateof recordation of the deed and the book andpage where the deed is recorded The countyclerk shall immediately make a cross reference of the request to the trust deed eitheron the margin of the page where the trustdeed is recorded or in some other suitable

place No request statement or notationplaced on the record pursuant to this sectionshall affect title to the property or be deemednotice to any person that any person sorecording the request has any right titleinterest in lien or charge upon the propertyreferred to in the trust deed1959 c625 16

86790 Qualifications of trustee ap

pointment of successor trustee 1 Thetrustee of a trust deed under ORS 86705 to86795 shall not be required to comply withthe provisions of ORS chapters 707 and 709and shall be

a An attorney who is an active member of the Oregon State Bar or

b A bank trust company or savingsand loan association authorized to do business under the laws of Oregon or the UnitedStates or

c A title insurance company authorizedto insure title to real property under the provisions of ORS chapter 748 its subsidiariesaffiliates agents or branches

2 If at any time after the trust deed isexecuted the trustee by reason of deathdissolution incapacity disability resignationor otherwise ceases to act as trustee thebeneficiary may appoint in writing anotherqualified trustee If the appointment of the

r successor trustee is recorded in the mortgagerecords of the county or counties in whichthe trust deed is recorded the successor

667

SUPERSEDED


trustee shall be vested with all the powersof the original trustee1959 c625 3

86795 Compensation of trustee The

charge of a trustee for the performance ofpowers and duties of foreclosure by advertisement and sale imposed under ORS 86705to 86795 shall not exceed 50 percent of thecompensation allowable to an executor oradministrator under ORS 117680 Such com

pensation shall be based upon the amountdue on the obligation both principal and interest at the time of the trustees sale Ifthe grantor prior to trustees sale pays theentire amount then due including costs and

expenditures actually incurred preliminaryto such sale the trusteesfees and attorneysfees to be charged grantor shall not exceed50 The trustee shall not be entitled to anycompensation prior to commencement offoreclosure

1959c625 19 1961c616 786800 to 86980 Reserved for expansion

PENALTIES

86990 Penalties Violation of ORS

86040 is punishable upon conviction by afine not exceeding 500 or imprisonment inthe county jail not exceeding six months orboth

Amended by 1961 c726 410


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill andthat the sections in this chapter are correct copies of the enrolled sections with the exceptionof the changes in form permitted by ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haleyon December 1 1963 Legislative Counsel

668

SUPERSEDED

Chapter 87


Statutory Liens

LIENS OF MECHANICS AND MATERIALBIEN

87005 Definitions for ORS 87005 to 8707587010 Liens of mechanics and materialmen who is

entitled to Hen

87015 Land and interests therein subject to Henleaseholds

87020 Notice to owners list of materials furnishedand statement of prices notice of intentto foreclose

87025 Priority of Hens right to sell improvementsseparately from land notice to mortgagee

87030 Effect of owner having knowledge of improvement notice of nonresponsibility

87035 Filing of claim for Hen87040 Definitions for ORS 87045

87045 Completion date of improvement substantial completion or abandonment

87050 Recording87055 Duration of Hen87060 Foreclosure

87065 Effect of payment of contractor or subcontractor

87070 Amount of recovery by contractor respective rights of contractor and owner

87075 Exemption of building materials from attachment by third persons

POSSESSORY LIEN FOR LABOR ANDMATERIAL EXPENDED ON CHATTEL

87080 Possessory Hen of makers and repairers ofarticles of personal property sale onnonpayment of charges

NONPOSSESSORY LIEN FOR LABOR ANDMATERIAL EXPENDED ON CHATTEL

87085 Nonpossessory Hen for labor or material expended on a chattel

87090 Filing of notice of Hen87095 Index of Hen notices

87100 Persons regarded as owners and agentspriority of Hen

87105 Discharge of Hen87110 Foreclosure generally foreclosure by adver

tisement and sale

87115 Redelivery bond87120 Costs and attorney fees in foreclosure by

suit

87122 Injury or removal of property subject toHen

LIENS OF LOGGERS AND WOODWORKERS

87125 Loggers Hen87130 WoodworkersHen

87135 Limitation on extent of Hen of loggers andwoodworkers adoption of statute sections

87140 Filing of notice of Hen

MINING LABOR AND MATERIAL LIEN

87145 Mining labor and material Hen87150 Filing claim of Hen87155 inRecording87160 Priority and duration of Hen87165 Foreclosure

LIEN OF FISHERMEN AND FISH WORKERS87170 Fishermensand fish workers lien on fish

ing equipment87175 FishermensHen on fish87180 Priority of Hen87185 Limitation on extent of Hen

87190 Filing notice of claim of Hen87195 Recording notice87200 Duration of Hen87205 Foreclosure

87210 Subjecting whole of property to Hen87215 Joinder of parties plaintiff consolidation of

suits costs87220 Judgment and sale87225 Sale prior to judgment87230 Injury or removal of property subject to Hen

LIEN FOR LABOR AND MATERIALSFURNISHED TO RAILROAD CONTRACTOR

87235 Lien for labor and materials furnished tocontractor to railroad priority

87240 Service of notice of Hen and copy of contract87245 Discharge of Hen by deposit of money re

covery by Hen claimant87250 Suit on nonpayment of claim87255 Suit on failure of contractor to complete

contract

87260 Attorney feeLIEN FOR PREPARING LAND FORCULTIVATION OR CONSTRUCTION

87265 Lien for preparing land for cultivation orconstruction priority

87270 Filing statement of claim87275 Recording87280 Foreclosure attorney fee87285 Duration of Hen87286 Savings clause for rights under certain re

pealed statutesFARM LABOR LIEN

87290 Farm labor Hen87295 Filing of claim of Hen87300 Priority87305 Recording87310 Foreclosure costs attorney fee87315 Duration of Hen87320 Protection from theft and damage of prop

erty subject to HenAGISTERSLIEN

87325 Agisters HenSHEEPHERDERSLIEN

87330 SheepherdersHen87335 Fling of notice of claim priority dis

charge foreclosureHORSESHOERSLIEN

87340 HorseshoersHen priority construction ofORS 87840 to 87365

87345 Fling of notice of Hen87350 Recording87355 Fling of successive Hens on same animal

limitation on extent of lien87360 Discharge87365 Foreclosure

669

SUPERSEDED

CH 87 MORTGAGES AND LIENS

NURSERYMANSLIEN

87370 NurserymansHen nursery stock defined87375 Right to lien priorities notice of nonre

sponsibility87380 Filing of claim of lien87385 Recording87390 Foreclosure attorney fees87395 Duration of lien

CROP LIEN

87400 Crop Hen for furnishing seed fertilizer orweed eradicator

87405 Priority87410 Filing of statement of Hen87415 Recording87420 Foreclosure87425 Duration of lien

ATTORNEYSLIEN

87495 AttorneysHen

POSSESSORY LIEN OF PERSON WHOTRANSPORTS OR STORES PERSONAL

PROPERTY

87500 Possessory Hen of person who transports orstores personal property priority

87505 Filing of notice of lien87510 Limitation on extent of lien special agree

ments discharge87515 Foreclosure disposition of proceeds of

sale notice liability of warehousemanfor improper sale

INNKEEPERSLIEN

87525 InnkeepersHen87530 Foreclosure

LANDLORDSLIEN

87535 Landlordslien priority87540 Foreclosure

87545 Repossession where property removed without landlordsconsent

87551 Posting copy of law

HOSPITAL LIEN

87555 Hospital Hen87560 Limitations on extent of Hen87565 Notice of lien required87570 Form of notice87575 Hospital lien docket87580 Payment to injured person after notice of

lien liability to hospital87585 Foreclosure

VETERINARY HOSPITAL LIEN

87590 Veterinary hospital lien

STABLE KEEPERSLIEN

87595 Stablekeeperslien87600 Foreclosure

LIEN FOR STUD OR ARTIFICIALINSEMINATION SERVICES

87605 Lien for stud or artificial insemination services

87610 Foreclosure

TIMBERLAND OWNERSLIEN

87615 Timberland owners lien87620 Limitation on extent of lien

87625 Priority of liens effect of payment by owner to contractor or subcontractor

87630 Filing of claim of Hen87635 Recording87640 Discharge of Hen on filing of bond87645 Foreclosure

87650 Rights of claimant against timber or lumber involved

87655 Joinder of lien claimants costs87660 Judgment sale after judgment87665 Sale before judgment87670 Duration of lien

87675 Liability of person injuring destroying orimpeding identification of timber

UNIFORM FEDERAL TAX LIENREGISTRATION ACT

87805 Federal tax Hen registration filing of noticeof lien and certificate of discharge

87810 Keeping of index and files87815 Entry of certificate of discharge attach

ment to original notice of Hen87820 Furnishing of books and files87825 Purpose of ORS 87805 to 8783587830 Construction of ORS 87805 to 8783587835 Short title

LIEN FOR CONTRIBUTIONS TO EMPLOYEBENEFIT PLAN

87855 Lien for contributions to employe benefitplan priority

87860 Filing of claim of lien87865 Foreclosure joinder of consolidation costs

limitation

MISCELLANEOUS PROVISIONS AFFECTINGLIENS

87910 Cost of preparation of Hen notice87915 Liens to be filed with county clerk validity

or priority of liens filed in certain countiesbefore August 9 1961

670

SUPERSEDED

CRASS CH 87

CROSS

Boats and vessels liens on Ch 783Burial lots sold by cemetery or crematory corpora

tion exempt from liens 61770Certified mail use of in lieu of registered 174150City assessment notice to lienholder of proposed

sale 312390 to 312420Cooperative corporation lien of on products which

are the subject of a contract between the corporation and a member thereof 62360

Drainage district assessment lien Chs 547 548Executor and administrator perfecting lien of de

ceased 116120Fees for filing recording and making certified

copies of lien claims 205320Felony lien of state on conviction for 137270Foreclosure of liens generally Ch 88Forest fire abatement lien 477068Garagemenslien for storage of motor vehicle un

lawfully parked on private parking lot 98812Homestead exemption inapplicability on death of

owner to laborers and mechanics liens 116590116595

House trailers lien of state for license fees 481490Human remains exempt from liens 97910Indigent injured in motor vehicle accident lien

against award to 445230Inheritance tax lien 118230 118280Irrigation district assessment lien Chs 545 548Log patrol lien 532560Milk poundage fee lien to collect 583056Municipal corporation assessment lien Ch 223Parking lot public operators lien for storage of

motor vehicle unlawfully parked on privateparking lot 98812

Pawnbrokerslien 726380Property tax foreclosure list notice to lienholder

312140 312150Registered land filing claim or notice 94390Sidewalks and curbs in unincorporated areas lien of

county for repairs to 368920State as party defendant in suit to foreclose a

lien 30360 120020State Department of Agriculture lien for services

and materials furnished by 561450State property subject to lien held by acquisition

administration and disposal 88710 to 88730Submerged and tide lands unpaid royalties on oil gas

and sulphur production 274790Tax commission as party to suits involving property

subject to state tax liens 305130Taxes lien on property 305140 311405 311525

314430

Trust deed disposition of proceeds of sale of 86765Unemployment compensation liens for unpaid con

tributions 657525 to 657540Unit ownership liens affecting property subject to

91575 91580Water control district assessment lien Ch 553Water power projects liens 543440 543550Water removal from county road expense of as

lien on land 368120Welfare recipient lien on judgment in favor of

416540

87015

Homestead exemption as inapplicable to mechanicslien 23260

Unit ownership limitation on lien on unit of property subject to 91575

87085

Garagemens lien for storage of motor vehicle unlawfully parked on private parking lot 98812

Parking lot public operators lien for storage ofmotor vehicle unlawfully parked on privateparking lot 98812

87110

Certified mail use of 17415087115

Deposits in lieu of undertaking or bond Ch 2287122

Certified mail use of 17415087170

Lien on boats and vessels Ch 783

87265

Lien against crops for irrigation 54510487400

Lien against crops for irrigation 545104Weeds necessity of eradication of 570505

87495

Controversy between attorney and client over delivery of money or papers on which attorneyclaims lien 9360 9370

87500

Animals being transported lien for feeding andcaring for 770220

Carriers lien 773070Garagemens lien for storage of motor vehicle un

lawfully parked on private parking lot 98812Parking lot public operators lien for storage of

motor vehicle unlawfully parked on privateparking lot 98812

Timber products lien for transportation over private logging road or way 768020

Trailer home removal from trailer park when delinquent in rent 446140

Warehousemanslien 77209087525

Baggage or property left with innkeeper or hotelkeeper right to sell 699050

Removing baggage with intent to defraud 165230Trailer home removal from trailer park when de

linquent in rent 44614087535

Removing baggage with intent to defraud 16523087555

Access to hospital records 44151087575

Lien against judgment in favor of welfare recipientrecording 416550

87640

Deposits in lieu of undertaking or bond Ch 2287825

Act of March41913 see 16USC61587855

Employer failing to make agreed payments to healthand welfare plan 659320

671

SUPERSEDED


LIENS OF MECHANICS ANDMATERIALMEN

87005 Definitions for ORS 87005 t487075 As used in ORS 87005 to 87075

1 Improvement includes any building wharf bridge ditch flume reservoirwell tunnel fence street sidewalk machinery aqueduct and all other structures ancsuperstructures whenever it can be madapplicable thereto

2 Construction includes alterationpartial construction and all repairs done itand upon any improvement

3 Agent of the owner includes an3contractor subcontractor architect buildeor other person having charge of the construction of any improvementAmended by 1957c651 1

87010 Liens of mechanics and material

men who is entitled to lien 1 Any mechanic artisan machinist builder contractor lumber merchant laborer teamster drayman or other person performing labor upon transporting or furnishing any materiato be used in the construction of any improvement shall have a lien upon the improvement for the labor transportation ormaterial furnished at the instance of th

owner of the improvement or his agent2 Any person who shall at the reques

of the owner of a lot grade fill in or otherwise improve the lot or the street adjoiningthe lot shall have a lien upon the lot for suchwork done and materials furnished

Amended by 1957c651 2

87015 Land and interests therein su

jest to lien leaseholds 1 The land upowhich any improvement is constructed together with such space as may be requiredfor the convenient use and occupation thereof to be determined by the court at the timeof the foreclosure of the lien shall alsosubject to the liens created under Oft87010 if at the time the work or the furnishing of the materials was commencedthe land belonged to the person who causedthe improvement to be constructed If suchperson owned less than a fee simple estatein such land then only his interest thereshall be subject to the lien

2 In case such interest is a leaseholdinterest and the holder thereof has forfeitedhis rights thereto the purchaser of the improvement and leasehold term at any saleunder the provisions of ORS 87005 to 87075is deemed to be the assignee of such lease

hold term and may pay the lessor all arrears of rent or other money and costs dueunder the lease unless the lessor has regained possession of the property or obtained judgment for the possession thereofprior to the commencement of the construction of the improvement in which event thepurchaser may only remove the improvement within 30 days after he purchases thesame and the owner of the land shall receive the rent due him payable out of theproceeds of the sale according to the termsof the lease down to the time of such removal

r 87020 Notice to owner list of materialsfurnished and statement of prices notice ofintent to foreclose 1 Any person furnishing any material or supplies to be used inthe construction of an improvement shallnot later than seven days after the date ofthe first delivery to a contractor or agentof the material or supplies deliver in person and evidence the delivery by receipt

1 thereof or mail by registered letter to theowner or reputed owner of the property onor about which the material or supplies areto be used a notice in writing stating in sub

e stance that such person has commenced todeliver material and supplies for use there

t on with the name of the person ordering thesame and that a lien may be claimed forall material and supplies furnished by suchperson for use thereon and no further notice to the owner is necessary No materialmens lien for material or supplies furnishedto the contractor or the agent of any owner

b or reputed owner shall be enforced unlessn such notice is given

2 The sender of the notice upon demand of the owner or reputed owner shallfurnish such owner or reputed owner a listof all material or supplies furnished for such

be improvementS 3 Every plaintiff or cross complainant

in a suit to foreclose alien created under ORS

87010 shall plead and prove that a noticein writing stating that such person or others intends to commence suit to foreclosehis or their lien was mailed or delivered to

m the owner or reputed owner of the propertyupon which the lien is claimed at least sevendays prior to the commencement of the suitto foreclose such lien

4 Where a list of material or supplieshas been furnished as required by subsettion 2 of this section and notice of intention to commence suit to foreclose the

672

SUPERSEDED

STATUTORY LIENS

Hen has been given as provided in subsection 3 of this section the sender of thenotice of intention upon demand of theowner or reputed owner shall furnish suchowner or reputed owner within five daysafter demand a statement of the pricescharged or claimed for such material orsupplies

87025 Priority of liens right to sellimprovements separately from land noticeto mortgagee 1 A lien created under ORS87010 upon any parcel of land shall be preferred to any lien mortgage or other encumbrance which attached to the land after

the improvement was commenced or the materials were commenced to be furnished and

placed upon or adjacent to the land also toany lien mortgage or other encumbrancewhich was unrecorded at the time the im

provement was commenced or the materialsfor the same were commenced to be fur

nished and placed upon or adjacent to theland

2 All liens created under ORS 87010upon any improvement shall be preferredto all prior liens mortgages or other encumbrances upon the land upon whichthe improvement was constructed andenforcing such lien the improvement maybe sold separately from the land andwhen so sold the purchaser may removethe same within a reasonable time thereafter not to exceed 30 days upon thepayment to the owner of the land of a reasonable rent for its use from the date of itspurchase to the time of removal but if suchremoval is prevented by legal proceedingsthe 30 days shall not begin to run until thefinal determination of such proceedings inthe court of first resort or the appellatecourt if appeal is taken

3 No lien for materials or suppliesshall have priority over any recorded mortgage on either the land or building unless theperson furnishing such material or suppliesnot later than seven days after the date ofthe first delivery of material or supplies forwhich a lien may be claimed delivers in person and evidences the delivery by receiptthereof or mails by registered letter to theowner of record of such mortgage recordedat the time of the commencement of the delivery of such material or supplies a noticein the form provided by ORS 87020

87030 Effect of owner having knowledge of improvement notice of nonresponsibility Every improvement except an im

87040

provement made by a person other than thelandowner in drilling or boring for oil orgas constructed upon lands with the knowledge of the owner or person having or claiming any interest therein shall be deemedconstructed at the instance of such owner

or person having or claiming any interesttherein and the interest owned or claimedshall be subject to any lien filed pursuant tothe provisions of ORS 87005 to 87075 unless such owner or person having or claiming an interest therein shall within three daysafter he obtains knowledge of the construction give notice that he will not be responsible for the same by posting a notice in writing to that effect in some conspicuous placeupon the land or the improvement situatedthereon

87035 Filing of claim for lien Everyoriginal contractor within 60 days after thecompletion of his contract and everymechanic artisan machinist builder lumber merchant laborer or other personexcept the original contractor claimingthe benefit of ORS 87005 to 87075 within 45 days after the completion of theconstruction or after he has ceased tolabor thereon from any cause or afterhe has ceased to furnish materials therefor shall file for recording with the recording officer of the county in which theimprovement or some part thereof is situated a claim containing a true statement ofhis demand after deducting all just creditsand offsets the name of the owner or reputed owner if known the name of the person by whom he was employed or to whomhe furnished the materials and a descriptionof the property to be charged with the liensufficient for identification which claimshall be verified by the oath of himself orof some other person having knowledge ofthe factsAmended by 1961c609 187040 Definitions for ORS 87045 As

used in ORS 870451 Owner means any person who has

caused an improvement to be constructedprovided such person owns some interestin the land sought to be charged with theHen

2 Contract purchaser means anyperson who has entered into a contract forthe purchase of any interest in the landsought to be charged with the lien uponwhich any improvement is constructed

3 Mortgagee means any person whohas a valid subsisting mortgage upon any

673

SUPERSEDED


real property sought to be charged withthe lien

87045 Completion date of improvementsubstantial completion or abandonment 1As an alternative method for determiningthe completion date of an improvement theimprovement shall be conclusively deemedcompleted as to all labor performed andmaterials used prior to the date of the notice described in this section when the improvement has been substantially completed or when it has been abandoned Cessation of work for 60 days or more shall constitute such abandonment and either theowner contract purchaser or mortgagee orhis agent shall have posted and recorded anotice in writing stating in substance thefollowing

Notice hereby is given that the buildingor structure on the following described premises insert the legal description of theproperty has been completed

All persons claiming a lien upon the sameunder the mechanics and materialmenslienlaws ORS 87005 to 87075 hereby arenotified to file for recording within the periods of time specified in ORS 87035 with therecording officer of the county of name ofcounty a claim of lien as required by ORS87035

Dated 19

Owner Contract Purchaser or MortgageeP O Address

2 The notice shall be posted on thedate it bears in some conspicuous place uponthe land or upon the improvement situatedthereon Within five days from the date ofposting the notice the party posting sameor his agent shall record with the recordingofficer of the county in which the propertyor some part thereof is situated a copy ofthe notice together with an affidavit indorsed thereon or attached thereto made bythe person posting the notice stating thedate place and manner of posting the notice The recording officer shall indorse upon such notice the date of the filing thereofand record and index the same in specialbooks to be kept by him for such purpose

3 Anyone claiming a lien under ORS87010 on the premises described in the notice for labor performed and materials usedprior to the date of the notice shall file forrecord with the recording officer of the

674

county in which the improvement or somepart thereof is situated a claim of lien in theform and with the information required byORS 87035 and within the periods of timespecified in that section said period of timeto commence from the date of filing the notice with the recording officer otherwisethe claim of lien shall be of no force andeffect

4 Nothing in this section is intendedto divest control or alter any rights liensor priorities that vested prior to July 51947 but the same may be perfected enforced or foreclosed in the manner providedby the law in effect at that time

87050 Recording The recording officershall record the claim described in ORS87035 in a book kept for that purpose whichrecords shall be indexed as deeds and otherconveyances are required by law to be indexed

87055 Duration of lien No lien de

scribed in ORS 87010 shall bind any improvement for a longer period than sixmonths after the lien is filed unless suit isbrought in a proper court within that timeto enforce the lien or if a credit is giventhen six months after the expiration of suchcredit but no lien shall be continued in forcefor a longer time than two years from thetime the work is completed by any agreement to give credit

87060 Foreclosure 1 Suits to enforcethe liens created by ORS 87010 shall bebrought in the circuit courts and the pleadings process practice and other proceedingsshall be the same as in other cases

2 In case the proceeds of any sale under ORS 87005 to 87075 are insufficient topay all lienholders claiming under such statutes the liens of all persons other than theoriginal contractor and subcontractors shallfirst be paid in full or pro rata if the proceeds are insufficient to pay them in fulland out of the remainder if any the subcontractors shall be paid in full or pro rataif the remainder is insufficient to pay themin full and the remainder if any shall bepaid to the original contractor Each claimant is entitled to execution for any balancedue him after such distribution and suchexecution shall be issued by the clerk of thecourt upon demand after the return of thesheriff or other officer making the saleshowing such balance due

3 In all suits under ORS 87005 to is

SUPERSEDED

STATUTORY LIENS

87075 the court shall upon entering judgment for the plaintiff allow as a part of thecosts all moneys paid for the filing and recording of the lien and also a reasonableamount as attorneysfees but no costs disbursements or attorneys fees shall be allowed to any plaintiff or cross complainantwho fails to comply with subsections 2 3and 4 of ORS 87020

4 All suits to enforce any lien createdby ORS 87010 shall have preference on thecalendar of the court over every civil suitexcept suits to which the state is a partyand shall be tried by the court without unnecessary delay In such suits all persons personally liable and all lienholders whoseclaims have been filed for record under the

provisions of ORS 87035 shall and all otherpersons interested in the matter in controversy or in the property sought to becharged with the lien may be made partiesbut persons not made parties are not boundby such proceedings The proceedings uponthe foreclosure of the liens created by ORS87010 shall as nearly as possible conformto the proceedings of a foreclosure of amortgage lien upon real property

87065 Effect of payment of contractoror subcontractor No payment by the owner of the improvement to any original orsubcontractor made before 45 days fromthe completion of the building shall be validfor the purpose of defeating any lien created by ORS 87010 in favor of any workmanlaborer lumber merchant or materialmanunless such payment has been distributedamong the workmen laborers lumber merchant or materialman or if distributed inpart only then the same shall be valid onlyto the extent the same has been so distributedAmended by 1961 c609 2

87070 Amount of recovery by contractor respective rights of contractor and owner Any contractor may recover upon a lienfiled by him only the amount due to him according to the terms of his contract afterdeducting all claims of other parties forwork done and materials furnished for which

alien is created by ORS 87010 Where a lienis filed under ORS 87005 to 87075 for workdone or material furnished to any contractor he shall defend any action brought thereupon at his own expense and during thependency of such action the owner maywithhold from the contractor the amount

of money for which such lien is filed In

87080

case of judgment against the owner or hisproperty upon the lien the owner may deduct from any amount due or to become dueby him to the contractor the amount of suchjudgment and costs and if the amount ofthe judgment and costs exceeds the amountdue by him to the contractor or if the owner has settled with the contractors in fullhe may recover back from the contractorany amount so paid in excess of the contractprice and for which the contractor was originally the party liable

87075 Exemption of building materialsfrom attachment by third persons Whenever any mechanic artisan machinist builder lumber merchant contractor laborer orother person shall have furnished or procured any materials for use in the construction of any improvement such material shallnot be subject to attachment execution orother legal process to enforce any debt dueby the purchaser of such materials excepta debt due for the purchase money thereofso long as in good faith the materials areabout to be applied to the construction ofsuch improvement

POSSESSORY LIEN FOR LABOR ANDMATERIAL EXPENDED ON CHATTEL

87080 Possessory lien of makers andrepairers of articles of personal propertysale on nonpayment of charges 1 Anyperson who makes alters repairs or bestows labor on any article of personal property at the request of the owner or lawfulpossessor thereof shall have a lien on thearticle for his just and reasonable chargesfor the labor he has performed and materialhe has furnished and he may retain possession of the article until such charges arepaid

2 If such charges are not paid withinthree months after the labor or materials

have been performed or bestowed the person having the lien may proceed to sell thearticle at public auction and apply the proceeds of the sale First to the payment ofthe expenses of the sale second to the discharge of the lien and third the balance ifany to the county clerk of the county inwhich the sale is made to be held by thecounty clerk in trust for the owner of thearticle

3 The sale shall be held in the countywhere the article was left to be altered or

repaired and before any sale is made noticethereof shall be given to the debtor by reg

675

SUPERSEDED


istered letter directed to him at his last

known place of residence if his residence isknown and also by posting notice thereofin three public places in the county one ofwhich shall be at or near the front door of

the county courthouse for 10 days priorto the day of sale The notice shall contain aparticular description of the article to besold the name of the owner or reputed owner thereof the amount due on the lien andthe time and place of the sale

4 The provisions of this section shallnot interfere with any special agreement ofthe parties

NONPOSSESSORY LIEN FOR LABORAND MATERIAL EXPENDED

ON CHATTEL

87085 Nonpossessory lien for labor ormaterial expended on a chattel Every person who has expended labor skill or materials including automobile tires upon anychattel or has furnished storage for saidchattel at the request of the owner reputedowner authorized agent of the owner or lawful possessor thereof shall have alien uponthe chattel for the contract price for suchexpenditure or in the absence of a contractprice for the reasonable worth of the expenditure for a period of one year aftersuch expenditure notwithstanding the factthat the possession of the chattel has beensurrendered to the owner or lawful possessorthereof

87090 Filing of notice of lien In orderto make the lien described in ORS 87085effectual the lien claimant shall within 60days from the date of delivery of such chattel to the owner thereof or his agent filea lien notice with the recording officer ofthe county in which the labor skill and materials were expended The notice shall statethe name of the claimant the name of theowner or reputed owner a description of thechattel sufficient for identification uponwhich the claimant has expended labor skilland material the amount for which the lienis claimed and the date upon which such expenditure was completed The notice shallbe verified by the oath of the claimant orby some one in his behalf having personalknowledge of the facts and may be substantially the following form

and on account of labor skill and materialsexpended upon the property that

the name of the owner or reputed owner isthat the labor skill and materials

were expended upon the property betweenthe day of and the day of

and the rendition of the labor skilland materials expended by the claimantabove named was closed on the day of

that 60 days have not elapsed sincethat time that the amount claimant demands for such labor skill and materials is

that no part thereof has been paidexcept and there is now due and re

maining unpaid thereon after deducting alljust credits and offsets the sum ofin which amount he claims alien upon saidpropertyState of Oregon

ss

County ofClaimant

I being first duly sworn on oathsay that I am named in the foregoingclaim that I have heard the same read andknow the contents thereof and believe thesame to be true

Subscribed and sworn to before me thisday of

87095 Index of lien notice Upon presentation of the notice described in ORS87090 to the recording officer of any county he shall file it in his office and index itin a book to be kept by him for that purpose and called index of liens upon chattels

87100 Persons regarded as owners andagents priority of lien Every person whois in possession of a chattel under an agreement for the purchase thereof whether thetitle thereto is in him or his vendor andevery other person who is in lawful possession of a chattel shall for the purposes ofORS 87085 to 87120 be deemed the ownerthereof or authorized agent of the ownerThe lien of every person as provided in OAS87085 shall be superior to the rights of theperson holding the title to the chattel or anyHen thereon antedating the time of the expenditure provided in ORS 87085 by suchlien claimant However the lien filed underthe provisions of ORS 87090 shall only have

Claimant v Defendant such priority over a chattel mortgage dulyNotice is hereby given that claims a recorded prior to the date of the expenditure

lien upon describe the property for claimed under the lien during the period the676

f IJJ

SUPERSEDED

STATUTORY LIENS

lien claimant retains possession of the chattel and no lien for automobile tires shallhave priority over such recorded chattelmortgage

87105 Discharge of lien Any lien described in ORS 87085 may be dischargedby the lien claimant or his agent by an entry of satisfaction of the same under theindex of liens upon chattels

87110 Foreclosure generally foreclosure by advertisement and sale Liens described in ORS 87085 may be foreclosed bya suit in the circuit or district court or theymay be foreclosed by advertisement and salein the following manner

1 The person or claimant desiring toforeclose the lien by advertisement and saleshall deliver to the sheriff or any constableof the county in which the chattel is thensituate a copy of the notice of lien certified by the recording officer of the countywhere it was filed with the request indorsedthereon signed by the claimant or his attorney for the foreclosure of the lien

2 Thereupon the sheriff or constableshall take the property described in the notice into his possession and for that purpose may forcibly if necessary enter anybuilding garage or other inclosure where thechattel may be in the manner provided bylaw under a writ of replevin

3 The sheriff or constable shall atthe time of such taking deliver to the perI on having possession of the chattel andmail to the legal owner of the chattel asappears from the record in the office of theSecretary of State or Department of MotorVehicles and to any mortgagee or his assignee if known having a duly recordedunpaid chattel mortgage upon the chatteldescribed in the lien a copy of the lien notice certified by the lien claimant or his attorneys together with an itemized bill ofparticulars of the lien claimants demandalso certified by the lien claimant or his attorneys

4 The person claiming to own or havean interest in the chattel may within 14 daysafter such service upon him deliver to thesheriff or constable a written and verifieddenial of any allegation contained in the liennotice or bill of particulars and shall alsoforthwith transmit by registered mail acopy of such written and verified denial tothe lien claimant or his attorney of recordin such proceedings

87110

5 If such denial or any allegation ofpayment on the part of such person is somade and served upon the officer then inpossession of the chattel the officer shallretain the possession of the chattel subjectonly to the order of the court having jurisdiction of the parties or the subject matterin a suit to be prosecuted by the lien claimant which suit shall be commenced withinan additional period of 10 days from thetime of service upon the officer of the denialor allegation of payment If the suit is notcommenced within 10 days the sheriff orconstable shall release the chattel from thelevy and deliver it to the person having orclaiming an interest therein If the suit iscommenced within 10 days the sheriff orconstable shall retain the chattel in his possession subject to the final decree of thecourt in the suit

6 If the legal owner or mortgagee orhis assignee or the person claiming to ownthe chattel or have an interest therein orsomeone in his behalf shall not within 14days after the taking and service upon theperson in possession of the chattel and thelegal owner mortgagee or assignee of acopy of the lien and bill of particulars makea written denial of any allegation containedin the lien notice or bill of particulars orallege full or partial payment of the sumdemanded by the lien claimant the sheriffor constable shall advertise the property forsale in the manner provided by law for thesale of personal property on execution fora period of not less than 10 days and aftergiving such notice of sale shall sell the chattel at public auction to the highest bidder forcash to satisfy the lien accrued interestcosts of seizure and storage and costs offiling and recording such lien and certifiedcopies thereof

7 The proceeds derived from such saleshall be applied to the payment of costs andattorneys fees as provided in this sectionand the amount of the lien and accrued interest in the order named and any proceeds remaining shall be paid to the ownerof the chattel When the lien claimant is represented by an attorney in such sheriffsor constables foreclosure and the proceeding reaches actual sale the lien claimantshall be entitled to an item of 5 costs forthe compensation of his attorney and if theproceeding does not reach actual sale byreason of payment prior to actual sale thesum of 250

677

SUPERSEDED


87115 Redelivery bond 1 If any legalowner or mortgagee or his assignee or anyperson claiming an interest in the chattelon which foreclosure by advertisement andsale is sought after making the denial referred to in ORS 87110 of any material allegation in the lien notice or bill of particulars or alleging payment in whole or in partof the lien claimed executes and causes tobe delivered to the sheriff or constable thenhaving possession of the chattel a sufficientundertaking equal to double the amount ofthe lien claimed but not less than 100 andexecuted by one or more sufficient suretiesto redeliver the chattel to such officer inthe same order and condition as it was whenseized upon demand of such officer havingan execution issued upon any judgment orin lieu thereof to pay to the lien claimantany judgment which the lien claimant hispersonal representative or assigns may recover against the defendant in any foreclosure suit brought to foreclose the lienwithin the period prescribed in ORS 87110then the sheriff or constable shall deliver

the chattel to such legal owner mortgageeor his assignee or to the person executingthe undertaking The sheriff or constableshall pass upon the sufficiency of the undertaking and the sureties thereon

2 The court having jurisdiction in anyforeclosure suit shall at the time of rendering the judgment and decree of foreclosuremake and enter an alternative decree di

recting the principal and surety forthwithto surrender the chattel to the sheriff or

constable or in lieu thereof to pay the lienclaimant the amount of the judgment Thejudgment shall thereupon be entered anddocketed against the principal and suretywith the same effect as if they were defendants

3 Any defendant may in lieu of suchundertaking deposit with the sheriff or constable a sum of money equal to the amountof claimantslien together with an additional sum of 50 which moneys shall be heldin lieu of such bond and after execution isissued may be used to pay claimants judg

87130 Woodworkers lien Every person performing labor upon or who shallassist in manufacturing sawlogs or other

is timber into lumber slabwood plywood orother wood products has alien upon suchlumber slabwood plywood or other wood

e products while the same remains at the yardwherein manufactured or while stored atany other place by or for the benefit of the

678

87120 Costs and attorney fees in foreclosure by suit In all cases where suitbrought to foreclose a lien described in ORS87085 the court shall upon entering judgment for the plaintiff allow as a part of thcosts in the suit all moneys paid for the filing and recording of the lien and also a 74

sonable amount of attorneys fees

87122 Injury or removal of propertysubject to lien 1 The person having alienby virtue of ORS 87085 may give notice ofhis lien to the person having possession ofthe chattel the legal owner of the chattelas appears from the records of the Secretary of State or Department of Motor Vehicles and to any mortgagee or other lienholder by serving upon such person personally or by registered mail a copy of the liennotice certified by the lien claimant or hisattorney

2 Any person to whom notice of alienhas been given as provided in subsection1 of this section except a person holdinga valid prior mortgage or lien who dismantles removes from this state or concealsany chattel upon which there is a validHen without the written consent of the lienholder shall be liable to the lienholder fordamages proximately resulting therefromwhich sum may be recovered in an actionat law without instituting foreclosure proceedings as provided in ORS 87110 Thecourt may allow reasonable attorneys feesto the prevailing party1955 c438 1 2

LIENS OF LOGGERS ANDWOODWORKERS

87125 Loggers lien Every person performing labor upon or who shall assist inobtaining or securing sawlogs spars pilescordwood or other timbers has a lien uponthe same for the work or labor done uponor in obtaining or securing the same whether such work or labor was done at the instance of the owner or his agent The cookin a logging or other camp and any and allothers who may assist in or about a loggingor other camp maintained for obtaining orsecuring sawlogs spars piles cordwood orother timber shall be regarded for the purpose of this section as a person who assistsin obtaining or securing sawlogs sparspiles cordwood or other timber

is

1u

SUPERSEDED

lru

STATUTORY LIENS

manufacturer whether their work or laborwas done at the instance of the owner ofthe lumber or his agentAmended by 1961c519 1

87135 Limitation on extent of lien of

loggers and woodworkers adoption of statute sections Persons claiming liens underORS 87125 and 87130 are only entitled toliens for services work or labor performedduring the six months immediately preceding the filing of the notice of claim of lienORS 87625 and 87635 to 87675 apply tothe liens described in ORS 87125 and 87130and proceedings connected therewith

87140 Filing of notice of lien Everyperson within 30 days after the close ofthe rendition of the services or after theclose of the work or labor mentioned inORS 87125 and 87130 claiming a lien thereunder shall file for record with the recording officer of the county in which the sawlogs spars piles and other timber was cutor in which the lumber was manufactureda claim containing a statement of his demand and the amount thereof after deducting as nearly as possible all just creditsand offsets with the name of the person bywhom he was employed with a statementof the terms and conditions of his contract

if any If there is no express contract theclaim shall state what the service work orlabor is reasonably worth The claim shallalso contain a description of the propertyto be charged with the lien sufficient foridentification with reasonable certainty Theclaim shall be verified by the oath of theclaimant or some other person for him tothe effect that the affiant believes the sameto be true The claim shall be substantiallyin the following form

87145

who performed labor upon and assisted incutting or manufacturing for the periodof that said labor and assistance were

so performed and rendered upon the property between the day of and the

day of and the rendition of such

services was closed on the day ofand 30 days have not elapsed since thattime that the amount of claimantsdemandfor the services is that no part thereofhas been paid except and there is

now due and remaining unpaid thereon afterdeducting all just credits and offsets thesum of in which amount he claims a

lien upon such propertyState of Oregon

ssCounty ofI being first duly sworn on oath

say that I am the named in the fore

going claim that I have heard the sameread know the contents thereof and believethe same to be true

Subscribed and sworn to before me this

day of

MINING LABOR AND MATERIAL LIEN

87145 Mining labor and material lien1 Every person who performs labor uponor furnishes provisions supplies or materialfor the working or development of any minelode mining claim or deposit in this sectionhereafter called mine in search of or containing coal metal or mineral of any kindand any person who works upon or furnishesmaterials for any shaft tunnel incline aditdrift or other excavation in this sectionhereafter called excavation designed for theuse working or draining of any such mineand any person who works or furnishes material for any road tramway trail flumeA4u 13 1lr7irr0vn1nfnro nr annar

Claimant v Defendant structure inNotice is hereby given that claims improvement or in any boarding house used

a lien upon describing property being for or in connection with the working orabout more or less which were cut or development of any such mine and any permanufactured in County State of Ore son who performs labor or service in freightgon are marked thus and are now ing or packing any material or supplies forlying in for labor performed upon and the use working or development of any suchassistance rendered in cutting or manu mine or performs labor in transporting ma

the owner or reputed owner is thatfacturing logs or lumber That the name of terial or the product from such mine or im

employed said to perform such provement and any person who furnisheslabor and render such assistance upon the any provisions materials or supplies forfollowing terms and conditions state con the working or operation of any such imtract if any or reasonable value that the provement used or operated in connectioncontract has been faithfully performed and with such mine shall have alien upon such

fully complied with on the part of mine or improvement to secure to him the679

SUPERSEDED


payment for the work or labor done or material furnished The lien shall attach inevery case to such mine improvement orboarding house owned or used in connectionwith the operation and development of thesame

2 When two or more mines are ownedor claimed by the same person and workedthrough a common excavation or over onetram or at one mill or other reductionworks then all the mines so worked andall boarding houses and improvements usedor owned in connection therewith shall forthe purposes of ORS 87145 to 87165 bedeemed one mine

3 When any mine excavation boarding house or improvement shall be workedby lessees or any person other than theowner acting under contract with the owner the lien provided for by this section shallbe limited to the labor performed or the material furnished such lessees or such personduring a period of not more than 40 daysnext preceding the time when the last ofsuch labor was performed or such materialsor supplies were furnished

87150 Filing of claim of lien Any laborer or materiahnan claiming the lien described in ORS 87145 shall within 60 daysafter he has ceased to labor thereon fromany cause or after he has ceased to furnish materials therefor file with the recording officer of the county in which themine lode mining claim or deposit shall besituate a claim containing a true statement of his demand after deducting all justcredits and offsets with the name of theowner or reputed owner if known and alsothe name of the person by whom he was employed or to whom he furnished the materials and also a description of the property to be charged with the lien sufficientfor identification which claim shall be verified by the oath of the lien claimant orsome other person having a knowledge ofthe facts

87155 Recording The recording officershall record the claim described in ORS

87150 in a book kept for that purposewhich shall be indexed as deeds and otherconveyances are required by law to be indexed

87160 Priority and duration of lien Thelien provided for in ORS 87145 shall be preferred to any prior lien mortgage or otherencumbrance and no sale transfer mort

gage or assignment of any mine miningclaim or other property subject to a lien under ORS 87145 shall defeat such lien except as provided in this section No lien provided for in ORS 87145 shall be continued inforce for longer than six months after theclaim is filed unless suit is brought in aproper court within that time to enforce thelien or if a credit is given within six monthsafter the expiration of the credit but nolien shall be continued in force for a longertime than two years from the time the workis completed by any agreement to give credit

87165 Foreclosure Suits to enforce the

liens created by ORS 87145 shall be broughtin the circuit court In case the proceeds ofany sale under ORS 87145 to 87165 shall besufficient to pay all lienholders under it theliens of all persons shall be paid in full orpro rata if the proceeds be insufficient topay them in full and each claimant shall beentitled to execution for any balance duehim after such distribution such executionto be issued by the clerk of the court upondemand after the return of the sheriff orother officer making the sale showing thebalance due In all such suits the court shallupon entering judgment for the plaintiffallow as a part of the costs all moneys paidfor the filing and recording of the lien andalso a reasonable amount as attorneysfeesIn all such suits all persons personally liable and all lienholders whose claims have

been filed for record under the provisionsof ORS 87150 shall and all other personsinterested in the matter in controversy orin the property sought to be charged withthe lien may be made parties but such asare not made parties shall not be bound bythe proceedings The proceedings upon suchforeclosure shall as nearly as possible conform to the proceedings of a foreclosure ofa mortgage lien upon property

LIEN OF FISHERMEN ANDFISH WORKERS

680

87170 Fishermens and fish workers

lien on fishing equipment Every person performing work or furnishing animals forwork in the construction maintenance repair or operation of any fishing boat netgillnet setnet seine fishtrap weir fishwheel scow plunger or other craft geardevice net machine or instrument used forthe purpose of catching holding or transporting fish from upon or within the watersof this state has a lien upon the same for

b

SUPERSEDED

CJ

STATUTORY LIENS

such work whether done at the instance ofthe owner or his agent However no property shall be subject to a lien for any greater sum than the market value of the fish

taken by such property during the periodfor which the lien is claimed and if theproperty is rented the rental shall be firstdeducted from the value of the catch

87175 Fishermens lien on fish Everyperson who catches or transports or whoassists in the catching or transporting ofany fish in this state has alien upon thefish and upon the proceeds of the sale ofthe fish for the price agreed to be paid forhis labor or for the price the labor wouldbe reasonably worth in case there was noexpress agreement fixing the price

87180 Priority of lien The liens provided for in ORS 87170 and 87175 are priorto all other liens and no sale transfer mortgage or assignment of any property subjectto alien under ORS 87170 or 87175 shalldivert the lien thereon

87185 Limitation on extent of lien

Persons claiming liens under ORS 87170 and87175 are only entitled to liens for serviceswork or labor performed during the sixmonths next preceding the filing of the notice of claim of lien

87190 Filing notice of claim of lienEvery person within 30 days after the closeof the rendition of the services or after theclose of the work or labor mentioned in ORS87170 and 87175 claiming a lien thereunder shall file for record with the recordingofficer of the county in which any of theproperty subject to the lien is situated orfound or shall within such 30 days givethe owner or holder of the property a noticeof his claim containing a statement of hisdemand and the amount thereof after deducting as nearly as possible all just creditsand offsets with the name of the person bywhom he was employed with a statement ofthe terms and conditions of his contract ifany and if there is no express contract theclaim shall state what such service work orlabor is reasonably worth and it shall alsocontain a description of the property to becharged with the lien sufficient for identification with reasonable certainty whichclaim must be verified by the oath of theHen claimant his agent or attorney to theeffect that the affiant believes the same tobe true which claim shall be substantiallyin the following form

681

87200

Claimant v Defendant

Notice is hereby given that claims a

lien upon describing property which isnow situate in the County of State of

Oregon for work and labor performed describe nature of services that the name ofthe owner or reputed owner is that

employed to perform such worklabor and services upon the following conditions state contract if any or reasonablevalue that the contract has been faithfullyperformed and fully complied with on thepart of who performed labor upon andassisted in for the period of that

the work labor and services were so performed upon the property between theday of and the day of and

the rendition of the services was closed onthe day of and 30 days have notelapsed since that time that the amount ofclaimantsdemand for services is that

no part thereof has been paid exceptand that there is now due and remaining unpaid thereon after deducting all just creditsand offsets the sum of in which

amount he claims a lien upon said property

State of OregonCounty of

as

I being first duly sworn on oathsay that I am the named in the foregoing claim that I have heard the same readknow the contents thereof and believe thesame to be true

Subscribed and sworn to before me thisday of

87195 Recording notice The recording officer shall record any claim filed underthe provisions of ORS 87190 in a book keptby him for that purpose which record shallbe indexed as deeds and other conveyancesare required by law to be indexed Any person firm or corporation to whom notice hasbeen given of a claim of lien as provided inORS 87190 shall be bound by such noticeas if it had been filed for record

87200 Duration of lien No lien provided for in ORS 87170 shall bind any propertyreferred to in that section for a longer period than six months after the claim has beenfiled or a notice served unless a suit is commenced in the circuit court within that timeto enforce the same

SUPERSEDED


87205 Foreclosure The liens providedfor in ORS 87170 and 87175 shall be enforced by a suit in the circuit court andshall be governed by the laws regulating theproceedings for the foreclosure of liens generally

87210 Subjecting whole of property toHen Any person who brings a suit to enforce the lien provided for in ORS 87170 or87175 or any person having such alien whois made a party to any such suit has theright to demand that the lien be enforcedagainst the whole or any part of the property which is subject to the lien

87215 Joinder of parties plaintiff consolidation of suits costs Any number ofpersons claiming liens under ORS 87170 and87175 may join in the same suit and whenseparate suits are commenced the court mayconsolidate them The court may also allow as part of the costs the money paid forfiling and recording the claim and a reasonable attorneysfee for each person claiming a lien

87220 Judgment and sale In a suit toenforce a lien described in ORS 87170 or87175 judgment shall be rendered in favorof each person having a lien for the amountdue him and the court shall order any property subject to the lien to be sold by thesheriff in the same manner that personalproperty is sold on execution and the courtshall apportion the proceeds of the sale tothe payment of each judgment pro rataaccording to the amount of the judgment

87225 Sale prior to judgment Thecounty judge of any county or the circuitjudge may in vacation upon motion and byaffidavit showing that property subject to alien described in ORS 87170 and 87175 isliable to loss or damage order such propertysold by the sheriff as personal property issold on execution before the judgment isrendered The proceeds of such sale shall bepaid into court to be applied as prescribedin ORS 87220

87230 Injury or removal of propertysubject to lien Any person who injures impairs or renders difficult or impossible ofidentification or removes or causes to be removed from this state any of the propertymentioned in ORS 87170 upon which thereis a lien without the express consent of theHen holder shall be liable to the lien holderfor the damages to the amount secured byhis lien which sum may be recovered by an

action against such person without bringingthe suit described in ORS 87205 in suchaction the principal debtor shall be made acodefendant

LIEN FOR LABOR AND MATERIALSFURNISHED TO RAILROAD

CONTRACTOR

87235 Lien for labor and materials fur

nished to contractor to railroad priorityAny subcontractor materialman or laborerwho furnishes to a contractor to any railroad corporation any fuel ties materials supplies or other articles or things or who performs any labor for such contractor in conformity with the terms of any contract express or implied which the contractor haswith any railroad corporation shall have aHen upon all the property of the railroadcorporation upon compliance with ORS

87240 However the aggregate of all suchHens shall not exceed the price agreed uponin the original contract to be paid by the railroad corporation to the original contractornor shall the railroad corporation be liablefor any greater sum than the amount thenactually due from it to the original contractor Such liens shall not take priority overexisting liens

87240 Service of notice of lien and copyof contract 1 The person performing labor described in ORS 87235 shall cause anotice in writing to be served on the officerof the railroad corporation on whom theservice of summons may be made at theplace where the principal office of the corporation is located The notice may be inthe following or any similar formTo the name of company

You are hereby notified that I am orhave been employed by as a laborer

or have furnished supplies as the case maybe on or for the of the value of

which sum said contractor or railroad company as the case may be agreed to payme therefor and upon which there is nowdue to me the sum of and that I shall

hold all property of said railroad companyto secure my pay

2 If there is a contractor and subcontractor materialman or laborer a copy ofthe original contract shall be served withthe notice and attached thereto which noticeshall be served at any time within 20 daysafter the completion of the subcontract orthe labor

682

is

SUPERSEDED

STATUTORY LIENS

87245 Discharge of lien by deposit ofmoney recovery by lien claimant The railroad corporation may at any time dischargeitself from any liability for the liens described in ORS 87235 by depositing withthe clerk of the circuit court of the countywhere its principal office is located themoneys due by it to the original contractorand publishing notice thereof in some newspaper of general circulation in the countyfor two weeks Such deposit shall also operate to release the railroad corporation fromthe claim of the original contractor Thereupon any person interested in such moneysmay commence suit in the proper circuitcourt against the railroad corporation andthe contractor setting forth the nature ofhis claim and the amount due as near asmay be and the fact that the contractorhas failed to complete his contract and thatsuch moneys have been deposited in courtThe clerk of the court shall thereupon issuea citation directed to all persons interestedin the matter set forth in the petition and insuch moneys to be published in some newspaper published printed and of general circulation in the county for four successiveweeks setting forth that such complainthas been filed and the nature thereof and

that all persons interested may appear andfile such claims as they may have at a timestated in the citation The court on application of any person interested shall causeall persons interested in such moneys to bebrought in and may render such decreeagainst the railroad corporation as may bedue to the plaintiff and such persons as interplead The decree shall have the effect asother decrees against the original contractor and against the railroad corporation

87265

in ORS 87235 may commence suit in theproper circuit court against the railroadcorporation and the contractors settingforth the nature of his claim and the amount

due as near as may be and the fact thatthe contractor has failed to complete his contract The clerk of the court shall thereuponissue a citation directed to all persons interested in the matter set forth in the com

plaint to be published in some newspaperprinted in and of general circulation in thecounty for four successive weeks settingforth that the suit has been commenced andthe nature thereof and that all persons interested may appear and file such claim asthey have at a time to be stated in the citation The court on the hearing of the suitand the claims of such persons as interpleadmay render such a decree against the railroad corporation as may be due to the plaintiff and such persons as interplead The decree shall have the effect as other decrees

against the original contractor and againstthe railroad corporation and execution mayissue upon the same to enforce the decreeagainst either

87260 Attorney fee Whenever any suitbrought under ORS 87235 to 87255 is determined in favor of the plaintiff or petitioner the court shall allow reasonable attorneys fees to be taxed as costs

LIEN FOR PREPARING LAND FOR

CULTIVATION OR CONSTRUCTION

87265 Lien for preparing land for cultivation or construction priority Every person who is employed to or contracts to survey clear ditch dike tile level checkborder excavate grade pave or otherwise

87250 Suit on nonpayment of claim Ifprepare any land for irrigation cultivation

the money due the person giving notice asconstruction or for any other purpose or to

described in ORS 87240 is not paid withindemolish any buildings thereon or who fur

10 days after the money becomes due and rashes any materials powder explosive or

within 10 days after such notice is served equipment for use in connection with such

such person may commence suit therefor inwork thereon at the request of the owner

any court having jurisdiction of the amountor with his knowledge or consent shall have

claimed to be due against the railroad cora lien on the land so worked upon for wages

poration with which the original contractand charges for such work and for all ma

was made or he may commence suit against terials powder explosive or equipment so

the railroad corporation and original confurnished or used in connection therewith

tractor jointly and execution may issueunless such owner or person having or claim

thereon as in other cases ing an interest therein other than those atwhose instance the materials were furnished

87255 Suit on failure of contractor to shall within three days after he obtainscomplete contract Should the original con knowledge of such work give notice thattractor in any case fail to complete his con he will not be responsible for the same bytract any person entitled to a lien described posting a notice in writing to that effect in

683

SUPERSEDED


some conspicuous place on the land or bymailing the notice by registered mail to theperson performing such services Such lienshall be preferred to every other lien or encumbrance of a subsequent date

87270 Filing statement of claim Everyperson claiming a lien under ORS 87265shall file with the recording officer of thecounty where the land is situated within 60days after the completion of the contract forthe work on the lands or the furnishing of materials therefor or after the completion of anycontract to perform the work or servicesthereon a claim verified by oath containing astatement for the unpaid wages and chargestogether with offsets and counter claimsdue such claimant for such services or forsuch materials so furnished or used thesubstance of the contract and the name of

the contractor if any a sufficient description of the land by metes and bounds or legalsubdivisions and a statement that theamount claimed is a true and bona fide existing debt

87275 Recording The recording officershall record the claim filed under ORS87270 in a book kept for that purpose whichrecords shall be indexed as the record of

deeds and mortgages is kept and indexed87280 Foreclosure attorney fee The

lien described in ORS 87265 may be foreclosed in the manner provided by law for theforeclosure of real property mortgages butin all cases of foreclosure of the lien described in ORS 87265 the court shall allowa reasonable attorney fee

87285 Duration of lien Every lien described in ORS 87265 shall cease to existunless a complaint to foreclose the lien isfiled and a summons issued within sixmonths from the date of the filing of thestatement of claim

87286 Savings clause for rights undercertain repealed statutes Any right securedprior to August 2 1951 under chapter 2 title67 of OCLA and amendments theretowhich chapter was repealed by section 6chapter 561 Oregon Laws 1951 shall continue in effect as provided in those repealedstatutes

FARM LABOR LIEN

87290 Farm labor lien 1 Any person who by his own labor or that of hislivestock or by using machinery whetheras owner or lessee thereof or otherwise performs for another any labor or service upon

any farm land or orchard in tilling the sameor in pruning or spraying any orchard or insowing harvesting heading or threshing anygrain or other crop or in gathering anyberries fruit or other products of the soilor in securing or housing any crop sownraised headed harvested threshed or gathered thereon or therefrom during the yearin which the labor or service was performedor in cooking for any person doing any ofsaid work during such time shall have alien upon all such crops raised upon all orany of such land or in any such orchard forthe contract price for such labor or serviceor for the reasonable value thereof if thereis no contract The lien shall attach to the

crop from the date of the commencement ofthe labor or service

2 If the crop or any part thereof issold prior to the filing of the lien or possession delivered to an agent broker cooperative agency or other person to be sold orotherwise disposed of and its identity lostor the crop commingled with other propertyso that it cannot be segregated and if thepurchaser agent broker cooperative agencyor other person was notified of the filing ofthe lien by being served with a certified copythereof the lien shall attach to the proceedsof the sale of the crop or part thereof remaining in the possession of the purchaseragent broker cooperative agency or otherperson at the time of the notice and to anyproceeds of the sale that may thereaftercome into the possession of any of such persons and the lien shall be as effectiveagainst such proceeds as against the cropitself

87295 Filing of claim of lien Any person claiming alien described in ORS 87290shall within 30 days after the close of suchlabor or service file for record with the recording officer of the county where the labor or service was performed a claim in writing verified by his oath containing a truestatement of his demand after deductingall just credits and offsets with the name ofthe owner or reputed owner of the propertyto be charged with the lien if known andalso the name of the person by whom hewas employed and also a description of theproperty to be charged with the lien andthe land upon which it was grown sufficientfor identification Unless the person entitledto such lien files the statement within suchtime he shall be deemed to have waived hisright thereto

84

1u

SUPERSEDED

STATUTORY LIENS

87300 Priority The lien described inORS 87290 has priority over all other liensor encumbrances upon such crops exceptthat the interest or share of any lessor inany portion of the crops raised while thepremises are leased in consideration of ashare of the crops raised to the extent ofnot over 50 percent of such crops shall notbe subject to such lien

87305 Recording The recording officershall record the claim of lien and index itin the same book and in the same manner as

the recording and indexing of the liens described in ORS 87010

87310 Foreclosure costs attorney feeA lien created by ORS 87290 shall beforeclosed and the lien and claim satisfiedin the same manner and with like effect as

the liens created by ORS 87010 In all suits toforeclose the lien described by ORS 87290the court shall upon entering judgment forthe plaintiff allow as part of the costs allmoneys paid for the making filing and recording of the lien and also reasonable attorneys fees

87315 Duration of lien No lien created

by ORS 87290 shall bind any property for alonger period than 12 months after the claimof lien is filed unless suit is commenced ina proper court within that time to enforcethe lien

87320 Protection from theft and dam

age of property subject to lien If the property covered by any lien created by ORS87290 is in danger of being stolen or damaged the circuit court for the county inwhich the lien is filed upon application ofthe holder of such lien shall appoint thesheriff of such county receiver of the property covered by the lien and the sheriffshall immediately take all such property intohis custody and protect care for and accountfor it and dispose of it according to the further order of the court The sheriff shall bepaid his actual expenses of receivershipfrom the proceeds of the sale of the propertybut shall be allowed no remuneration for hisservices

AGISTERSLIEN

87325 Agisters lien Any person whodepastures or feeds any horses cattle hogssheep or other livestock or bestows any labor care or attention upon the same at therequest of the owner or lawful possessor

E

87340

thereof shall have a lien upon such propertyfor his just and reasonable charges for thelabor care and attention he has bestowedand the food he has furnished and he mayretain possession of the property until suchcharges are paid The lien created by thissection shall have preference over all otherliens or encumbrances except a lien forherding animals ORS 87505 to 87515 applyto the lien created by this section

SHEEPHERDERSLIEN

87330 Sheepherders lien Any herderof sheep or any one to whom sheep are entrusted for their care or attention or anyone who hires out to any owner of sheepeither by the day month or year withinthe state who has entered into a contractfor such care attention or labor with theowner of the sheep shall have a lien uponall such animals for the amount due for atime not exceeding seven months precedingthe date upon which the care attention orlabor was terminated The lien shall not apply to animals proven to have been loststrayed or stolen

87335 Filing of notice of claim priority discharge foreclosure Any personclaiming a lien under ORS 87330 shall within 60 days after the close of the care attention or labor file with the recording officerof the county in which the animals are located a notice of his intention to claim suchHen Such notice shall be filed in the recordsof liens The notice shall state the name ofthe person claiming the lien the name of theowner or reputed owner of the animalssought to be charged with the lien a description of such animals sufficient for identification and the amount for which the lienis claimed The notice of lien shall be verified by the oath of the person claiming theHen to the effect that he believes the sameto be true and when the notice of lien is sofiled the lien shall have priority over allother encumbrances or liens upon such animals The lien shall be discharged and foreclosed in the manner provided by ORS87360 and 87365

HORSESHOERSLIEN

87340 Horseshoerslien priority construction of ORS 87340 to 87365 Everyperson who shoes any horse mule ox orother animal shall have a lien upon the animal shod for his reasonable charges for shoe

8n

SUPERSEDED


ing the same The lien conferred by this section shall be superior to the lien of anychattel mortgage bill of sale conditional contract or other security upon such animalORS 87340 to 87365 shall be liberally construed

87345 Filing of notice of lien Any person claiming a lien under ORS 87340 shallwithin 60 days after the shoeing of the animal or in case he has shod such animalmore than once within 60 days after thelast shoeing file with the recording officerof the county in which such animal is a notice of his intention to claim such lien The

notice shall state the name of the personclaiming the lien the name of the owneror reputed owner of the animal sought tobe charged with the lien a description of theanimal sufficient for identification and theamount for which the lien is claimed The

notice shall be verified by the oath of theperson claiming the lien or his agent to theeffect that he believes the same to be true

87350 Recording The recording officershall upon presentation to him of the notice described in ORS 87345 file it in his office and index it in a book to be kept by himfor that purpose called Index of Horseshoers Liens

87355 Filing of successive liens on sameanimal limitation on extent of lien Anyperson may file successive liens upon thesame animal or different charges for shoeing the same and he may include in any oneclaim of lien his charges for any number oftimes of shoeing such animal but no lienshall be had for any shoeing done more thansix months prior to the filing of the noticeof lien

87360 Discharge Any lien claimedder ORS 87340 may be discharged byHen claimant or his agent by an entrysatisfaction of the same in the indexhorseshoers liens

un

the

of0

session and hold the same and shall advertise the same for sale to satisfy the lien oncea week for two successive weeks in a dailyor weekly newspaper published in the

county and after giving such notice shallsell the animal at public auction to the highest bidder for cash to satisfy the lien accrued interest and costs of taking possession and holding and selling the animaldelivering the overplus of money arisingupon such sale if any to the owner of theanimal or his authorized agent

NURSERYMANSLIEN

87370 Nurserymans lien nurserystock defined For the purposes of ORS87370 to 87395 nursery stock meansfruit trees fruittree stock nut trees grapevines fruit bushes rose bushes rose stockforest and ornamental trees and shrubsboth deciduous and evergreen floristsstock and cuttings scions and seedlings offruit or ornamental trees and shrubs andall other fruit bearing plants and partsthereof and plant products for propagationor planting

87375 Right to lien priorities noticeof nonresponsibility Any person who furnishes nursery stock of the value or agreedprice of 25 or more for planting on anyland at the request of the owner or withhis knowledge shall have a lien on the landupon which such nursery stock is set outand planted which lien shall be preferred toevery other lien or encumbrance of a subsequent date unless such owner or personhaving or claiming an interest therein withinthree days after obtaining knowledge ofsuch planting and setting out of nurserystock gives notice that he will not be responsible for the same by mail to the person furnishing the nursery stock

f 87380 Filing of claim of lien Everyperson claiming a lien under ORS 87375shall file with the recording officer of the

r county where the land is situated within sixr months after furnishing the nursery stock

statement verified by his oath containingbill for the nursery stock the substance

of the contract the name of the contractoris a description by metes and bounds of the

land for which the stock was furnished ther total amount of the demand of such claimante after deducting all setoffs and counterclaims

and a statement that the amount claimed isa true and bona fide existing debt

686

87365 Foreclosure Liens created unde

ORS 87340 may be foreclosed by suit othey may be foreclosed by advertisement andsale in the following manner The lien claimant shall deliver to the sheriff or any constable of the county in which such animalsituated a certified copy of the notice oflien with the request indorsed thereon fothe foreclosure of such lien thereupon thsheriff or constable shall take the anima

described in such notice of lien into his pos

J

SUPERSEDED

STATUTORY LIENS

87385 Recording The recording officershall record the claims in a book kept forthe purpose which record shall be indexedfor that purpose as the record of deeds andmortgages is kept and indexed

87390 Foreclosure attorney fees Thelien described in ORS 87375 may be foreclosed in the manner provided by law for theforeclosure of real property mortgages butin all cases of foreclosure of the lien described in ORS 87375 the court shall allow

a reasonable attorneysfee

87395 Duration of lien Every lien described in ORS 87375 shall cease to exist

unless a complaint to foreclose it is filed anda summons issued within six months from

the date of the filing of the claim of lien

CROP LIEN

87400 Crop lien for furnishing seedfertilizer or weed eradicator 1 Any person who furnishes seed commercial fertilizeror chemical weed eradicator to another to be

sown or planted or applied on the landsowned contracted to be purchased used orrented by him shall upon filing the statement provided for in ORS 87410 have alienupon all the crop produced from such seedor the first crop benefited by such commercial fertilizer or chemical weed eradicator tosecure the payment of the purchase pricethereof However before any person hassuch lien upon the entire crop grown fromseed sold or benefited by such commercialfertilizer or chemical weed eradicator anytenant farmer such person shall notify andobtain the written consent of the owner of

the premises and if such consent is notobtained the lien shall apply only to thetenant farmersinterest therein

87425

agency or other person at the time of thenotice and to any proceeds of such sale thatmay thereafter come into the possession ofany of such persons and the lien shall be aseffective against such proceeds as againstthe crop itselfAmended by 1959c340 1

87405 Priority The lien described inORS 87400 shall have priority over all otherliens and encumbrances except liens described in ORS 87290

87410 Filing of statement of lien Anyperson entitled to a lien under ORS 87400shall within 30 days after the seed is sownor planted or such commercial fertilizer orchemical weed eradicator is applied file withthe recording officer of the county in whichthe seed is sown or planted or such commercial fertilizer or chemical weed eradicator is

applied a statement in writing verified byoath showing the kind and quantity of seedcommercial fertilizer or chemical weed erad

icator its value the amount due thereonafter deducting all charges credits and offsets the name of the person to whom furnished and a description of the land uponwhich the same has been planted or sown orapplied Unless the person entitled to the lienfiles such statement within such time he

waives his right theretoAmended by 1959c340 2

87415 Recording The recording officershall record the claim of lien and index it inthe book and manner described in ORS

87095

87420 Foreclosure The lien described

in ORS 87400 shall be foreclosed as provided in ORS 87110 and 87115 and the lienand claim satisfied as therein provided Inall suits to foreclose the lien described in

ORS 87400 the court shall upon enteringjudgment for the plaintiff allow as part ofthe costs all moneys paid for the makingfiling and recording of the lien and alsoreasonable attorneysfees

k


scribed in ORS 87400 shall bind any property for a longer period than 12 monthsafter it is filed unless suit is commenced ina proper court within the time to enforcethe lien

2 If the crop or any part thereof issold subsequent to the filing of the lien orpossession delivered to an agent broker cooperative agency or other person to be soldor otherwise disposed of and its identitylost or the crop commingled with otherproperty so that it cannot be segregatedand if the purchaser agent broker cooperative agency or other person is notified ofthe filing of the lien by being served with acertified copy thereof the lien shall attachto the proceeds of the sale of the crop orpart thereof remaining in the possession ofthe purchaser agent broker cooperative


SUPERSEDED


ATTORNEYSLIEN

87495 Attorneyslien An attorney hasa lien for his compensation whether specially agreed upon or implied as providedin this section

1 Upon all papers personal propertyand money of his client in his possession forservices rendered to such client and he mayretain such papers until the lien and claimbased thereon is satisfied and may applysuch money to the satisfaction of the lienand claim

2 Upon action suits and proceedingsafter the commencement thereof and judgments decrees orders and awards enteredtherein in his clientsfavor and the proceedsthereof in whosesoever hands they are to theextent of the fees and compensation speciallyagreed upon with his client if there is suchan agreement and if not for the reasonablevalue of his services Such lien shall not be

affected by any settlement between theparties to the action suit or proceedingbefore or after judgment decree order oraward The lien shall be superior to all otherliens except tax liens and no party to theaction suit or proceeding or other personshall have the right to satisfy such lien orany judgment decree order or award entered therein until the lien and claim of theattorney for his fees based thereon is satisfied in full However a judgment debtormay pay the full amount of a judgment ordecree into court and the clerk of the court

shall thereupon fully satisfy the judgmentor decree on the record and the judgmentdebtor shall thereby be released from anyfurther claims thereunder Attorneys shallhave the same right and power over suchactions suits proceedings judgments decrees orders and awards to enforce theirliens as their clients have for the amount duethereon to them If more than one attorneyappears of record for a litigant the satisfaction of the lien provided for in this section by any one of the attorneys is conclusive evidence that the lien is fully satisfied

or who at the request of the owner or lawful possessor of any personal propertytransports the same from one place to another and any person who stores any grainmerchandise or personal property at the request of the owner or lawful possessorthereof shall have a lien upon such property for his just and reasonable charges forsuch transportation or storage and he mayretain possession of the property until suchcharges are paid The lien created by thissection shall have preference over all otherliens or encumbrances except a lien forherding animals

POSSESSORY LIEN OF PERSON WHOTRANSPORTS OR STORES

PERSONAL PROPERTY

87500 Possessory lien of person whotransports or stores personal property priority Any person who is a common carrier

87505 Filing of notice of lien Any person claiming a lien under the provisions ofORS 87325 or 87500 shall within 30 daysafter accrual of the claim upon which thelien is founded file with the recording officer of the county in which the propertyupon which the lien is claimed is located anotice of his intention to claim such lien

The notice shall state the name of the person claiming the lien the name of the owneror reputed owner of the property sought tobe charged with the lien a description ofsuch property sufficient for identificationand the amount for which the lien is

claimed Such notice must be verified by theoath of the person claiming the lien to theeffect that he believes the same to be trueThe notice of lien shall be filed in the records

of liens of the county in which such property is located


special agreements discharge No right ofHen claimed under ORS 87325 or 87500

shall cover a period exceeding five monthsfrom the date the claim upon which suchHen is based first began to accrue The liendescribed in such sections does not apply toanimals proven to be lost strayed or stolenAny such lien may be discharged by the lienclaimant or his agent by an entry of satisfaction of the lien in the record of liens ofthe county in which it is filed The provisions of ORS 87325 and 87500 to 87515shall not interfere with any special agreement of the parties

87515 Foreclosure disposition of proceeds of sale notice liability of warehouseman for improper sale 1 Liens described in ORS 87325 and 87500 may beforeclosed by suit or they may be foreclosed by the following proceedings If the

sF

1u

SUPERSEDED

STATUTORY LIENS

reasonable value of the property does notexceed 100 the person having the lien mayproceed to sell the property at public auctionand apply the proceeds of the sale First tothe payment of the expenses of the salesecond to the discharge of the lien andthird the balance if any to the county clerkof the county in which the sale is made to beheld by the county clerk in trust for theowner of the property The sale shall be heldin the county where the property was storedor transported and before any sale is madenotice thereof shall be given to the owner orperson entitled to possession by certified maildirected to him at his lastknown place of residence if his residence is known and also byposting notice thereof in two public places inthe county one of which shall be at or near thefront door of the county court house for10 days prior to the day of sale The noticeshall contain a particular description of theproperty to be sold the name of the owneror reputed owner the amount due on the lienand the time and place of the sale or theymay be foreclosed by advertisement and salein the following manner The person desiringto foreclose shall deliver to the sheriff or anyconstable of the county in which the property upon which the lien is claimed is located a certified copy of the notice of lienwith a request indorsed thereon for the foreclosure of such lien Thereupon the sheriffor constable shall take the property described in the notice into his possession andhold it and shall advertise it for sale tosatisfy the lien once a week for two successive weeks in a daily or weekly newspaperpublished in such county and after such advertisement shall sell the property or suchpart thereof as may be necessary at publicauction to the highest bidder for cash tosatisfy the lien accrued interest and the costof taking possession holding and selling theproperty delivering the overplus of moneyif any to the owner of the property or hisauthorized agent

2 This section is not intended to authorize any warehouseman to sell more of anywool wheat oats or other grain than issufficient to pay charges due the warehouseman on such grain and if any warehouseman sells loans or disposes of in anymanner without consent of the owner thereof except as provided in this section anysuch grain he shall for each such offenseforfeit to the owner of such grain a aequal to the market value thereof and 50

87530

percent of the market value in addition as apenalty such value and penalty to be recovered by an action at law The marketvalue is the price such grain has at thetime the owner thereof determines to sellthe same

Amended by 1957c420 1 1959c521 1

87520 Reserved for expansion

INNKEEPERSLIEN

87525 Innkeepers lien The keeper ofany inn or hotel shall have a lien on thebaggage clothing jewelry and other property brought in to such inn or hotel belonging to or under control of his guest orboarder for the proper charges due thekeeper from the guest or boarder for accommodation board and lodging whetheron a daily weekly or monthly payment basisand for any extras furnished at the requestof the guest or boarder by the keeper andfor all money paid for or advanced to theguest or boarder by the keeper The keepermay retain such property until the amountof such charges extras and moneys advanced is paid and such property is exemptfrom attachment or execution until the innkeepers lien and the cost of satisfying itare satisfied

87530 Foreclosure 1 The innkeeperor hotelkeeper shall retain the baggageclothing jewelry and other property uponwhich he has a lien for a period of 60 daysat the expiration of which time if such lienis not satisfied he may proceed to sell suchproperty or a part thereof at private saleeither 10 days after one publication of noticeof the time and place of sale in a newspaperof general circulation in the county wherethe inn or hotel is situated or 10 days afterposting notice of the time and place of salein three public places in the city where theinn or hotel is situated and also by mailinga copy of such notice addressed to the guestor boarder at the place of residence registered by him in the register of the inn orhotel

2 After satisfying the lien and anyexpenses of selling the property that mayaccrue any residue remaining shall on demand within six months be paid to the guestor boarder and if not so demanded within six months from the date of the sale the

um residue shall be deposited by the innkeeperor hotelkeeper with the treasurer of the

689

SUPERSEDED


county in which the inn or hotel is situatedtogether with a statement of the innkeepersclaim and the cost of enforcing the samea copy of the published or posted noticeand of the amounts received for the goodssold at said sale The county treasurer shallcredit the residue to the general revenuefund of the county subject to a right of theguest or boarder or his representative toreclaim at any time within three years ofthe date of deposit with the treasurer Ifthe residue is not demanded and claimed

within such period it shall become the property of the county

3 The notice provided for in subsection 1 of this section shall be substantially in the following form

I name of the owner manager or otherproper person hereby claim a lien upon thebaggage clothing and other property broughtinto name of hotel or inn by name of theowner or other person who brought theproperty into the hotel or inn on the dateand more than 60 days having elapsed sincethe expiration of the time accommodationsboard or lodging were furnished and theamount of is now due on account

of the aforesaid accommodations board andextras not having been paid by the abovenamed person and the lien of the undersigned not having been satisfied now

therefore notice is given that the undersigned will proceed to sell the clothing baggage and other property no other description is necessary of the abovenamed person at private sale at name of hotel or innor other place where sale shall take placeon the day of 19

Dated this day of 19

SignedOwner manager or other proper per

son

LANDLORDSLIEN

87535 Landlordslien priority Exceptas provided in ORS 87525 and 87530 everylandlord shall have a lien upon all personalproperty except wearing apparel as definedin subsection 2 of ORS 23160 owned bya tenant or occupant legally responsible forrent brought upon the leased premises tosecure the payment of rent and such advances as are made on behalf of the tenant

The landlord may retain all such propertyduring the existence of the lien The lienshall have priority over all other liens andclaims except taxes recorded chattel mort

e

gages claims of merchants in ordinarycourse of business for the balance of the purchase price and conditional sales contractsexisting before the property sought to besubjected to the lien is brought upon theleased premises No writing recording norfiling shall be necessary to create such lienThe selling removing or encumbering of suchproperty shall not defeat this lien except asale or encumbrance in favor of a bona fide

purchaser or a bona fide lien holder whoacquires his rights to or interest in suchproperty after the removal of same from theleased premisesAmended by 1957c684 1

87540 Foreclosure If the rent or advances referred to in ORS 87535 are not

paid within 20 days after the same accrueor such advances are made or if the tenantor occupant attempts to remove the property from the premises while there are suchunpaid rents or advances the landlord mayin either case immediately or at any timethereafter take such property into his possession and shall at any time after 90 daysof such taking proceed to sell the propertyor any portion thereof at public auctionafter giving 10 days notice of the time andplace of the sale to the sheriff of the countyand by publication in a newspaper of generalcirculation in the county where the leasedpremises are situated and mailing to thetenant at his lastknown place of residencea copy of the notice Upon such sale theproceeds shall be applied to the expensethereof to satisfy the lien and the residueif any paid to the treasurer of the countyfor the benefit of the tenant or whomsoever

may be entitled thereto If the residue is notclaimed within three years after being deposited with the county treasurer it shallrevert to the general revenue fund of thecountyAmended by 1957c684 2

87545 Repossession where property removed without landlords consent In the

event any property subject to the lien described in ORS 87535 is removed from the

leased premises without the consent of thelandlord the landlord may take the samewherever found except when it is in thepossession of a bona fide purchaser or abona fide encumbrancer and may then proceed to the sale as provided in ORS 87540and the period of time for such sale shall betolled during the period of such unlawfulremoval

90

is

SUPERSEDED

C

STATUTORY LIENS

87550 Repealed by 1957 c684 3 ORS 87551enacted in lieu of ORS 87550

87551 Posting copy of law Every landlord entitled to a lien under the provisionsof ORS 87535 shall keep a copy of ORS87535 to 87550 posted in a conspicuousplace on the leased premises1957 c684 4 enacted in lieu of ORS 87550

HOSPITAL LIEN

87555 Hospital lien 1 Except asotherwise provided by law whenever anyperson receives hospitalization on accountof any injury and he or his personal representative after his death claims damagesfrom the person causing the injury thehospital shall have a lien upon any sumawarded the injured person or his personalrepresentative by judgment or obtained bya settlement or compromise to the extent ofthe amount due the hospital for the reasonable value of such hospitalization renderedprior to the date of judgment settlement orcompromise However no such lien shall bevalid against anyone coming under theWorkmensCompensation Act

2 When the person receiving hospitalization has a contract providing for indemnity or compensation for the sum incurred for such hospitalization the hospitalshall have a lien upon the amount payableunder such contract The party obligated tomake reimbursement under the contract

may pay the sum due thereunder directlyto the hospital and such payment shallconstitute a full release of the party makingthe payment under such contract to theamount of the payment

87560 Limitations on extent of lienNo lien under ORS 87555 shall be allowed

for hospitalization rendered after a settlement has been effected by or on behalf ofthe party causing the injury No lien shallbe allowed against any sum for necessaryattorney fees costs and expenses incurredby the injured party in securing a settlement compromise or judgment

87570

an itemized statement of the amount

claimed with the recording officer of thecounty wherein such hospital is located andalso with the recording officer of the countywherein the injury was suffered and shallprior to the date of judgment settlementor compromise serve a certified copy of thenotice of lien by registered mail upon theperson alleged to be responsible for causingthe injury and from whom damages areclaimed and upon his insurance carrierwhich has insured against such liability ifsuch insurance carrier is known

87570 Form of notice The form of the

notice required by ORS 87565 shall be substantially as follows

Notice is hereby given thathas rendered services in hospitalization for

a person who was injured onthe day of in the city ofcounty of State of on or

about the day of and the

name of claimant hereby claimsa lien upon any money due or owing or anyclaim for compensation damages contribution settlement or judgment fromalleged to have caused said injuries and anyother person liable for the injury or obligated to compensate the injured person onaccount of said injuries The hospitalizationwas rendered to the injured person betweenthe day of and the day of

ITEMIZED STATEMENT

that 15 days have not elapsed since thattime that the claimants demands for saidcare and service is in the sum ofand that no part thereof has been paid except and that there is now due and

owing and remaining unpaid therof afterdeducting all credits and offsets the sum of

in which amount lien is herebyclaimed

Claimant


ss

I being first duly sworn onoath say That I am named in

the foregoing claim of lien that I have readthe same and know the contents thereofand believe the same to be true

87565 Notice of lien required In orderto perfect the lien described in ORS 87555the hospital or the owner or operator thereofshall not later than 15 days after the discharge of the injured person from the hospital file a notice of lien substantially in theform prescribed in ORS 87570 containing

691

SUPERSEDED


Subscribed and sworn to before me this

day of in the year of our Lord

Notary Public

87575 Hospital lien docket Each recording officer shall maintain a hospitallien docket in which upon the filing of anotice of lien he shall enter the name of theinjured person the approximate date of theinjury the name and address of the hospitalfiling the notice and the amount claimedand he shall make an index thereto in the

names of the injured persons

87580 Payment to injured person after notice of lien liability to hospital Anyperson or insurer who after the receipt ofa certified copy of notice of lien in compliance with ORS 87565 shall make anypayment to the injured person his heirspersonal representatives or the attorney forany of them as compensation for the injurysuffered without paying the hospital thereasonable value of hospitalization renderedsuch injured person and claimed in its noticeof lien or so much thereof as can be satisfied

out of the moneys due under any judgmentsettlement or compromise after paying theattorney fees costs and expenses incurredin connection therewith and any prior liensshall for a period of 180 days after the dateof such payment be liable to the hospital forthe amount which the hospital was entitledto receive The hospital shall within suchperiod have a cause of action against theperson making any such payment whichmay be prosecuted in any county whereinnotice of lien has been filed

87585 Foreclosure The lien described

in ORS 87555 may be foreclosed by a suitin the district or circuit court In any suitbrought pursuant to the provisions of ORS87580 or this section upon entering a decreefor the plaintiff the court shall allow aspart of the costs and disbursements allmoneys paid for the filing and recording ofthe notice of lien and reasonable attorneysfees

VETERINARY HOSPITAL LIEN

87590 Veterinary hospital lien 1Any veterinary hospital which at the request of the owner or lawful possessor ofany animal bestows any care food or service upon the same shall have a lien uponthe animal for the just and reasonable

e

charges therefor and may retain the animaluntil the charges are paid This lien shallhave preference over all other liens or encumbrances

2 If such charges are not paid within30 days after the owner or lawful possessorof an animal leaves the animal in the veteri

nary hospital for the purpose of board andkeep only or within 30 days after the owneror lawful possessor of such animal left atsaid veterinary hospital for medical or surgical services is notified that the requestedservices have been performed and the animal is ready for release the person havingsuch lien may proceed to sell the animal atpublic auction

3 The proceeds of such sale shall beapplied first to the payment of the expensesof the sale which includes the food andkeep of the animal during foreclosure second to the discharge of the lien and thirdthe balance if any to the county clerk ofthe county in which the sale is made to beheld by him in trust for the owner of theanimal

4 The sale shall be held in the countywhere the animal was left for care food orservice and before such sale is made noticethereof shall be given to the debtor by registered mail addressed to him at his last

known place of residence and also by posting notice thereof in three public places in thecounty one of which shall be at or near thefront door of the county courthouse for 10days prior to the date of sale The noticeshall contain a particular description of theanimal to be sold the name of the owner orreputed owner thereof the amount due onsuch lien and the time and place of sale

STABLE KEEPERSLIEN

87595 Stablekeepers lien Stable keepers shall have a lien on animals carriageswagons sleighs and harness left with themfor board storage sale or exchange for theamount of the bill due the stable keeper forthe board and storage and may withoutprocess of law retain the same until suchindebtedness is discharged

87600 Foreclosure Allproperty retainedby any stable keeper pursuant to ORS 87595may after the expiration of 30 days fromthe date of such retention be sold at publicauction by first giving notice of such salefor a period of two weeks in some newspaper

92

is

SUPERSEDED

STATUTORY LIENS

of general circulation published in the cityin which such stable is situated and also byfive days notice posted in five of the mostpublic places in the city or place where thesale is to be had provided if no newspaperis published in such city the notice shall begiven in some newspaper of general circulation published within the county The proceeds of the sale shall be applied first tothe payment of the lien and the expense ofthe sale and the balance if any to theowner of the property or his authorized representative

LIEN FOR STUD OR ARTIFICIALINSEMINATION SERVICES

87605 Lien for stud or artificial insem

ination services The owner of any stallionor jack which is kept and licensed for thebreeding of mares not owned by the ownerof the stallion or jack and any person whoartificially inseminates any female domesticanimal shall have alien upon any femaleanimal to which such male is let or which

has been artificially inseminated and heroffspring for the sum contracted thereforwhich lien shall attach at the time of service

of the male or of artificial insemination andshall not be lost by reason of any sale exchange or removal from the county or otherdisposition of the female animal or her offspring without consent of the p e r s o nholding the lienAmended by 1955c136 1

87610 Foreclosure At any time within20 months after his right of action accruesthe holder of the lien described in ORS

87605 may file with any justice of thepeace in the county a written statementduly verified setting forth the amount ofhis claim his cause of action and a description of the animal upon which he has a lienand the justice shall thereupon issue summons as in other cases and embody thereina description of the animal and an order tothe constable to take the animal and her

offspring if any and hold them subject tothe order of the court If upon trial judgment is rendered for the plaintiff the courtshall order a sale of the animals as on exe

cution to pay the judgment

87640

such timber for the price agreed to be paidfor such privilege or for the price suchprivilege or the stumpage thereon would bereasonably worth in case there is no expressagreement fixing the price


Only those sawlogs spars piles and othertimber cut during the six months next preceding the filing of the claim of lien aresubject to the lien described in ORS 87615

87625 Priority of liens effect of payment by owner to contractor or subcontractor The liens described in ORS 8712587130 and 87615 are prior to all other liensand no sale transfer mortgage or assignment of timber or lumber shall divert the

lien thereon No payment by the owner ofsuch timber or lumber to any original orsubcontractor made before 30 days fromthe completion of the work by the lienclaimant shall discharge any such lien unless such payment has been distributedamong the persons assisting in obtainingsecuring or manufacturing such timber andlumber or if distributed in part only thenthe payment shall discharge the liens onlyto the extent that the payment has been sodistributed

87630 Filing of claim of lien Everyperson claiming a lien under ORS 87615 shallfile for record with the recording officer ofthe county in which timber was cut a claim insubstance the same as provided in ORS87140 and verified as therein provided

87635 Recording The recording officershall record any claim filed under the provisions of ORS 87140 or 87630 in a bookkept by him for that purpose which recordshall be indexed as deeds and other conveyances are required by law to be indexed

87640 Discharge of lien on filing ofbond If at any time the owner of timber orlumber subject to the lien described in ORS87125 87130 or 87615 or any person inhis behalf files with the recording officerof the county wherein the claim of lien isrecorded a bond in a sum double theamount claimed in the lien executed by asurety company licensed to do business inOregon or by two freeholders of the Stateof Oregon having the qualifications of bailupon arrest to be approved by the circuitjudge of the district in which the lien is

TIMBERLAND OWNERSLIEN

87615 Timberland owners lien Anyperson who permits another to go upon histimberland and cut sawlogs spars pilescordwood or other timber has a lien upon

693

SUPERSEDED


filed or in the event of his absence from thecounty in which the lien is filed by thecounty judge of that county running to thelien claimant and conditioned for the payment of all damages costs charges anddisbursements that may be recovered by theclaimant against the owner or that may befound to be alien upon the property described in the lien claim the recording officer shall issue to the owner a certificate

stating that the bond is substituted for theproperty and that the lien on the property isdischarged and a marginal entry of the discharge and bond shall be made in the liendocket containing the original record ofclaim of lien If the lien claimant establishes

the validity of his lien by a suit to enforcethe same he shall be entitled to judgmentor decree against the sureties upon the bondNothing in this section shall deprive anyperson of any defense which he would havehad if such bond had not been filed and thefiling of the bond shall in no way affect thetime within which the foreclosure suit shallbe commenced

87645 Foreclosure The liens described

in ORS 87125 87130 and 87615 shall beenforced by a suit in the circuit court andshall be governed by the laws regulating theproceedings for the foreclosure of liens generally

87650 Rights of claimant against timber or lumber involved Any person whobrings a suit to enforce the lien describedin ORS 87125 87130 or 87615 or any person having such alien who is made a partyto any such suit has the right to demandthat the lien be enforced against the wholeor any part of the property which is subjectto the lien

87655 Joinder of lien claimants costsAny number of persons claiming liens underORS 87125 87130 or 87615 may join inthe same suit and when separate suits arecommenced the court may consolidate themThe court may also allow as part of thecosts the moneys paid for filing and recording the claim and a reasonable attorneys fee for each person claiming a lien

87660 Judgment sale after judgmentIn the suit described in ORS 87645 judgment must be rendered in favor of each per

in the same manner that personal propertyis sold on execution and the court shallapportion the proceeds of the sale to thepayment of each judgment pro rata according to the amount of the judgment

87665 Sale before judgment The judgemay in vacation upon motion and by affidavit showing that the property is liable toloss or destruction order any property subject to a lien described in ORS 8712587130 or 87615 to be sold by the sheriffas personal property is sold on executionbefore the judgment referred to in ORS87660 is rendered and the proceeds of suchsale shall be paid into court to be appliedas in that section directed


scribed in ORS 87125 87130 or 87615 shallbind any timber or lumber for a longerperiod than six months after the claim hasbeen filed unless a suit is commenced in thecircuit court within that time to enforce thelien

87675 Liability of person injuring destroying or impeding identification of timber Any person who injures impairs destroys or renders difficult or impossible ofidentification any property upon which thereis alien described in ORS 87125 87130 or87615 without the express consent of thelienholder shall be liable to the lienholderfor the damages to the amount secured byhis lien which sum may be recovered by anaction against such person without bringingthe suit as provided for in ORS 87645provided in such action the principal debtorshall be made a codefendant


UNIFORM FEDERAL TAX LIENREGISTRATION ACT

87805 Federal tax lien registration filing of notice of lien and certificate of discharge Notices of liens for taxes payable tothe United States of America and certifi

cates discharging such liens shall be filed inthe offices of the recorder of conveyancesin counties which have a recorder of conveyances and in other counties in the offices ofthe county clerks for the county or countiesin this state within which the property subject to such lien is situated

son having a hen for the amount due himand the court shall order any property sub 87810 Keeping of index and files Whenject to such lien to be sold by the sheriff a notice of such tax lien is filed the record

694

SUPERSEDED

STATUTORY LIENS

ing officer shall forthwith enter the same inan alphabetical federal tax lien index showing on one line the name and residence of thetaxpayer named in such notice the collectors serial number of such notice the dateand hour of filing and the amount of taxwith the interest penalties and costs Heshall file and keep all original notices so filedin numerical order in a file or files anddesignated Federal Tax Lien Notices

87815 Entry of certificate of discharge attachment to original notice of lienWhen a certificate of discharge of any taxHen issued by the Collector of Internal Revenue or other proper officer is filed in theoffice of the recording officer where theoriginal notice of lien is filed said recordingofficer shall enter the same with date offiling in said federal tax lien index on theline where notice of the lien so discharged isentered and permanently attach the original certificate of discharge to the originalnotice of lien

87820 Furnishing of books and filesSaid federal tax lien index and file or filesfor said federal tax lien notices shall befurnished to the recording officer of eachcounty in this state in the manner now provided by law for the furnishing of books inwhich deeds are recorded

87825 Purpose of ORS 87805 to 87835ORS 87805 to 87835 are passed for thepurpose of authorizing the filing of noticesof liens in accordance with the provisions ofsection 3186 of the Revised Statutes of theUnited States as amended by the Act ofMarch 4 1913 37 Statutes at Large page1016 and any Acts or parts of Acts amendatory thereof

87830 Construction of ORS 87805 to87835 ORS 87805 to 87835 shall be so interpreted and construed as to effectuatetheir general purpose to make uniform thelaw of those states which enact the UniformFederal Tax Lien Registration Act

87835 Short title ORS 87805 to 87835may be cited as the Uniform Federal TaxLien Registration Act


87860

who is required to pay contributions byagreement or otherwise into a fund of anyemploye benefit plan in order that his employe may participate therein shall pay suchcontributions in the required amounts and atthe stipulated time or each employe affectedthereby shall have a lien on the earnings andon all property used in the operation of theemployers business to the extent of themoneys plus any penalties due to be paid by oron his behalf in order to qualify him for participation therein and for any moneys expended or obligations incurred for medicalhospital or other expenses to which he wouldhave been entitled had such required contributions been paid

2 The lien described in this sectionshall have priority over all other liens andencumbrances which may attach after suchlien is filed pursuant to subsection 1 ofORS 87860 and also shall have priority overall other liens and encumbrances which mayhave attached previous to that time butwhich were not filed or recorded so as to cre

ate constructive notice thereof prior to thattime and of which the lien claimant has nonotice However the lien described in thissection shall not have priority over liens forlabor performed or wages1963 c604 1 5

87860 Filing of claim of lien 1 Thelien claimant under subsection 1 of ORS87855 or his representative or the trusteesof the employe benefit plan fund on the claimants behalf within 60 days after such payment becomes due shall file for record with

the recording officer of the county whereinthe claimant is or was employed by such employer a notice of claim containing a statement of the demand the name of the employer and the name of the person employingthe claimant if known with a statement ofthe pertinent terms and conditions of the employe benefit plan and the time when suchcontributions are due and were to have been

paid and shall deliver in person or mail byregistered mail to the employer a copy thereof within such time

2 The recording officer shall uponpresentation to him of the notice describedin subsection 1 of this section file it in his

LIEN FOR CONTRIBUTIONS TO office and index it in a book to be kept byEMPLOYE BENEFIT PLAN

him for that purpose called Index of Em87855 Lien for contributions to employe ploye Benefit Plan Liens

benefit plan priority 1 Every employer 1963 c604 2 3695

SUPERSEDED


87865 Foreclosure joinder or consolidation costs limitation 1 The lien described in ORS 87855 may be enforced bya suit in the circuit court and shall be governed by the laws regulating the proceedingsfor the foreclosure of liens generally

2 Any number of persons claimingliens under ORS 87855 may join in the samesuit and when separate suits are commencedthe court may consolidate them The courtmay also allow as part of the costs the moneys paid for filing and recording the claimand a reasonable attorneysfee for each person claiming a lien

3 Every lien described in ORS 87855shall cease to exist unless a complaint to foreclose it is filed and a summons issued within

six months from the date of filing of theclaim of lien1963c604 4 61

87905 Repealed by 1961 c726 427

MISCELLANEOUS PROVISIONSAFFECTING LIENS

87910 Cost of preparation of lien

notice Whenever any person files a noticeor claim of lien under ORS 87005 to 8714087170 to 87365 87500 to 87515 87595

87600 and 87615 to 87675 he may add tothe amount of his claim as contained in thenotice 5 as costs for the preparation of thelien notice and such amount thereuponshall become part of the lien against theproperty described in the notice Howeverthis section shall not apply to any lienclaim paid in full prior to the expiration ofthe time allowed by law for the filing ofthe notice thereof notwithstanding thenotice was filed before such expiration date

87915 Liens to be filed with countyclerk validity or priority of liens filed incertain counties before August 9 1961 1Whenever any lien is required to be filedwith the recording officer of the countyunder ORS 87035 87090 87140 8715087190 87240 87270 87295 87335 8734587380 87410 87505 87565 87630 or subsection 1 of ORS 87860 it shall be filedwith the county clerk of the county

2 The validity or priority of any lienfiled prior to August 9 1961 shall not beaffected in any way by the fact that it wasfiled with either the county clerk or therecorder of conveyances in counties havinga recorder of conveyances1961 c518 1 3 1963 c604 7



is

696

SUPERSEDED

Chapter 88


Foreclosure of Liens Generally

88010 Foreclosure of liens by suit decree for 88090 Decree when debt payable in instalmentsamount of debt 88100 Payment of amount due before foreclosure

88020 Joinder of foreclosure suit involving realty sale decree for payment of instalmentwith suit to quiet title not due

88030 Other lien holders and debtors as defendants S8110 Duration of real property mortgage lien88040 Foreclosure suit during and after action for suit for foreclosure barred when

debt 88120 Foreclosure not barred by ORS 88110 when88050 Decree where more than one lien on same 88710 Definitions for ORS 88710 to 88730

88060property

Enforcement of decree 88720 Acquisition administration and disposal bystate of property subject to lien held by88070 Decree foreclosing purchase money mort

88080gage on real property

Sale and redemption effect of sheriffs deed 88730 Appropriation disposition of receipts

CROSS REFERENCES

Chattel mortgage lien foreclosure of Ch 86Entry on record when realproperty mortgage is

foreclosed 93720Foreclosure of specific liens Ch 87 and cross ref

erences of Ch 87Foreclosure of tax liens by county effects stability

of title 312214 to 312230Indigent injured in motor vehicle accident foreclos

ing lien on award to 445260Lis pendens filing notice of effect of 93740Lis pendens filing of notice and effect on registered

land 94515Registered land foreclosure of mortgage on 94365Release of state tax liens by tax commission

305140 321455State Tax Commission as party in cases involving

state tax liens 305130Trust deed foreclosure of 86710Unit ownership foreclosure of liens on property sub

ject to 91580Watermasters foreclosing lien for expenses of

540410

Welfare recipient lien against judgment in favorof 416540

88030

State as defendant when it claims an interest inthe realty 30360

State as defendant where owner of property subjectto lien dies intestate without heirs 120020

Tenants in common joinder as defendants 13150Unknown claimants of realty as parties 13070

88080

Manager of property subject to unit ownership maybid at sale of unit 91585

Redemption of mining claims 517090 517100Water power project property foreclosure sale of

543550

88110

Suspension of statute of limitation during a warwhen mortgagor is enlisted man on active servicein the war 408440

697

SUPERSEDED


88010 Foreclosure of liens by suit decree for amount of debt Except as otherwise provided by law a lien upon real or personal property other than that of a judgmentor decree whether created by mortgage orotherwise shall be foreclosed and the property adjudged to be sold to satisfy the debt secured thereby by a suit Except as providedin ORS 88070 in addition to the decree offoreclosure and sale if a promissory noteor other personal obligation for the paymentof the debt has been given by the lien debtoror any other person as principal or otherwise the court also shall decree a recoveryof the amount of the debt against such person or persons as the case may be as inthe case of an ordinary decree for the recovery of money The provisions of this chapteras to liens upon personal property are notintended to exclude a person having such lienfrom any other remedy or right in regardto such property

88020 Joinder of foreclosure suit involving realty with suit to quiet title Anycause of suit involving real property provided for in ORS 88010 may be joined withany cause of suit provided for in ORS105605 in the same complaint or crosscomplaint if both causes of suit involve thesame real property or some part thereofand are separately stated Any person maybe joined as a party who is a proper partyto either cause of suit The court in eventof such joinder may render a decree whichwill among other things determine theparamount title to the real property involvedor any part thereof

88030 Other lien holders and debtorsas defendants Any person having a lien subsequent to the plaintiff upon the same property or any part thereof or who has givena promissory note or other personal obligation for the payment of the debt or anypart thereof secured by the mortgage orother lien which is the subject of the suitshall be made a defendant in the suit andany person having a prior lien may be madedefendant at the option of the plaintiff orby the order of the court when deemed necessary

88040 Foreclosure suit during a n d

after action for debt During the pendencyof an action for the recovery of a debt secured by any lien mentioned in ORS 88010a suit cannot be maintained for the foreclosure of the lien nor thereafter unless

698

judgment is given in such action that theplaintiff recover the debt or some part thereof and an execution thereon against theproperty of the defendant is returned unsatisfied in whole or in part

88050 Decree where more than oneHen on same property When it is adjudgedthat any of the defendants have alien uponthe property the court shall make a likedecree in relation thereto and the debt secured thereby as if such defendant were aplaintiff in the suit When a decree is givenforeclosing two or more liens upon the sameproperty or any portion thereof in favor ofdifferent persons not united in interest thedecree shall specify the order according totheir priority in which the debts securedby such liens shall be satisfied out of theproceeds of the sale of the property

88060 Enforcement of decree The decree may be enforced by execution as anordinary decree for the recovery of moneyexcept as in this section otherwise provided

1 When a decree of foreclosure andsale is given an execution may issue thereonagainst the property adjudged to be soldIf the decree is in favor of the plaintiff onlythe execution may issue as in ordinary casesbut if it is in favor of different persons notunited in interest it shall issue upon thejoint request of such persons or upon theorder of the court or judge thereof on themotion of any of them

2 When the decree is also against thedefendants or any one of them in personand the proceeds of the sale of the propertyupon which the lien is foreclosed are notsufficient to satisfy the decree as to thesum remaining unsatisfied the decree maybe enforced by execution as in ordinarycases When in such case the decree is infavor of different persons not united in interest it shall be deemed a separate decreeas to such persons and may be enforcedaccordingly

88070 Decree foreclosing purchasemoney mortgage on real property When adecree is given for the foreclosure of anymortgage given to secure payment of thebalance of the purchase price of real property the decree shall provide for the saleof the real property covered by such mortgage for the satisfaction of the decree given therein but the mortgagee shall not beentitled to a deficiency judgment on account

SUPERSEDED

FORECLOSURE OF DENS GENERAL

of the mortgage or note or obligation secured by the same

88080 Sale and redemption effect ofsheriffs deed A decree of foreclosure shallorder the mortgaged property sold Property sold on execution issued upon a decreemay be redeemed in like manner and withlike effect as property sold on an executionissued on a judgment and not otherwise Asheriffs deed for property sold on executionissued upon a decree shall have the sameforce and effect as a sheriffsdeed issued forproperty sold on an execution issued on ajudgment

88090 Decree when debt payable in instalments When a suit is commenced toforeclose a lien securing a debt payable ininstalments either of interest or principaland any of such instalments is not then duethe court shall decree a foreclosure of thelien and may also decree a sale of the property for the satisfaction of the whole debtor so much thereof as may be necessary tosatisfy the instalment then due with costsof suit In the latter case the decree offoreclosure as to the remainder of the property may be enforced by an order of salein whole or in part whenever default occurs in the payment of the instalments notthen due

88100 Payment of amount due beforeforeclosure sale decree for payment of instalment not due If before a decree is given the amount then due with the costs ofsuit is brought into court and paid to theclerk the suit shall be dismissed If thesame is done after decree and before salethe effect of the decree as to the amountthen due and paid shall be terminated andthe execution if any has issued shall be recalled by the clerk When an instalment notdue is adjudged to be paid the court shalldetermine and specify in the decree whatsum shall be received in satisfaction thereofwhich sum may be equal to such instalmentor otherwise according to the present valuethereof

88720

record and after such 10 years the mortgage shall be conclusively presumed paidand discharged and no suit shall be maintainable for its foreclosure If the date ofmaturity of the debt is not disclosed by themortgage itself then the date of the execution of the mortgage shall be deemed thedate of maturity of such debt

88120 Foreclosure not barred by ORS88110 when Foreclosure of a mortgage onreal property is not barred by ORS 88110when all the following facts exist at the timethe foreclosure suit is commenced

1 Any portion of the mortgage debtor any interest thereon has been voluntarily paid within the 10 years immediately preceding commencement of the suit

2 The original mortgagor still ownsthe mortgaged property

3 No lien or right of a third personhas attached to the property after the expiration of the 10 year period referred toin ORS 88110


88710 Definitions for ORS 88710 to88730 As used in ORS 88710 to 88730

1 Director means the Director ofVeterans Affairs

2 Lien means any charge upon property for the payment or discharge of a debttax or duty due the State of Oregon or anyagency of the state including judgmentliens docketed warrants or any notice orclaim of amount due given by the state oran agency thereof pursuant to law and carried forward on the lien book or judgmentroll of the county wherein property is locatedto which a lien of the state attaches1959 c499 1 1963 c578 2

88720 Acquisition administration anddisposal by state of property subject to lienheld by state Whenever in the discretion ofthe director such a procedure would appearbeneficial to the state and on advice of thestate agency charged with collection of a taxduty debt or any sum owing the state forwhich a lien securing such debt tax or duty

88110 Duration of real property mortgage lien suit for foreclosure barred whenExcept as provided in ORS 88120 no mortgage upon real property shall be a lien uponsuch property after the expiration of 10 yearsfrom the date of maturity of the mortgagedebt or from the date to which the paymentthereof has been extended by agreement of

is being foreclosed by the state agency or bythird parties the director after notifyingthe Department of Finance and Administration of the proposed action under this section may bid in or redeem either in his ownname or as agent of the lien holding agencyreal or personal property ordered sold underforeclosure where such property is subject to

i99

SUPERSEDED

88730 MORTGAGEES AND LIENS

any lien held by the state at a price limitedto the sum of the amount of the state lienand all other prior liens plus costs but in noevent to exceed the appraised value acquiretitle to real property for and in behalf of thestate as a result of such foreclosure acceptdeeds from debtors taxpayers or other persons owing a debt tax or duty to the state inlieu of foreclosure make repairs improvements or alterations insure against loss ordamage pay taxes liens and charges ofevery kind superior to the lien of the stateand sell transfer lease or assign such property for and in behalf of the state or otherwise administer such property in such manner as he deems for the best interest of thestate in the same manner the director manages and conveys property pursuant to ORS407080 the director shall undertake to sellproperty within 90 days after acquiring marketable title thereto and while holding suchproperty shall not engage in any enterprisecompetitive with privat a enterprise otherthan the renting or leasing of such property

or interests therein The control of such property while title remains vested in the stateshall be exercised by the director1959 c499 2 1963 c578 3

88730 Appropriations disposition of receipts 1 Out of the moneys in the General Fund there is continuously appropriatedto the director such money as is necessary tocarry out the provisions of ORS 88710 to88730

2 All moneys received by the directorfrom the sale lease or other disposition ofany property shall be paid over to the StateTreasurer and deposited in the General Fundas miscellaneous receipts available for general governmental purposes

3 The disbursements and expendituresby the state pursuant to ORS 88710 to 88730shall be made upon order of the directorfrom the General Fund including the necessary expenses of the director in administering ORS 88710 to 887301959 c499 3 1963 c578 4


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I have comparedeach section printed in this chapter with the original section in the enrolled bill and that the sections inthis chapter are correct copies of the enrolled sections with the exception of the changes in form permittedby ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon

Sam R Haleyon December 1 1963Legislative Counsel

CHAPTERS 89 AND 90

Reserved for expansion

700

SUPERSEDED

CHAPTER

RESERVED

FOR

EXPANSIONSUPERSEDED

TITLE 10

PROPERTY RIGHTS ANDTRANSACTIONS

Chapter 91 Landlord and Tenant Unit Ownership92 Plats and Subdivisions93 Conveyancing and Recording94 Registration of Titles Torrens Law95 Fraudulent Conveyances96 Line and Partition Fences97 Cemetery Lots Property Rights in Human Bodies98 Lost Abandoned and Unclaimed Property Unordered Publications99 Property Removed by High Water

105 Actions and Suits Involving Property Rights


Landlord and Tenant Unit Ownership

CREATION AND TERMINATION OFTENANCIES

91010 Tenancy when deemed to exist91020 Tenancies classified91030 Tenancy by curtesy entirety or for life91040 Tenancy at sufferance91050 Tenancy at will91060 Tenancy from year to year91070 Tenancy from month to month91080 Termination when expiration of tenancy

fixed by terms of lease91090 Termination of tenancy by failure to pay

rent reinstatement91100 Waiver of notice

91110 Notices to be in writing how servedRENT

91210 Rents payable in advance unless otherwiseagreed demand unnecessary

91220 Tenant in possession liable for rent remedies for recovery

EMBLEMENTS

91310 Farm tenants right to emblements

MATTERS RELATING TO GAMBLING LEASES91410 Gambling leases prohibited status of rental

contracts termination recovery of possession

91420 Penalty for letting or renting a place foigambling purposes

UNIT OWNERSHIPGeneral Provisions

91505 Definitions for ORS 91505 to 9167591510 Short title

Creation of Unit Ownership91525 Property submitted to unit ownership by

declaration

91530 Contents of declaration name of property91535 Approval of declaration91540 Recording declaration and floor plans

Management of Property EncumbrancesConveyances

91555 Adoption of bylaws recording amendment91560 Contents of bylaws91565 Unit deeds

91570 Removal of unit from blanket mortgage91575 Liens against property removal from lien

effect of part payment91580 Lien of association against unit recording

foreclosure

91585 Receiver for unit power of property manager to bid at foreclosure sale

91590 Liability for unpaid share of common expenses

91595 Records of receipts and expenditures affecting common elements insurance

Attributes and Duties of Ownership91605 Status and ownership of units91610 Interest of unit owners in common elements

701

SUPERSEDED


Removal of Property from Unit Ownership91655 Removal by unit owners consent of lien

holders

91660 Agreement by unit owners that property isobsolete damage or destruction

91665 Common ownership of property removedfrom unit ownership

91670 Action for partition division of sale proceeds91675 Removal no bar to resubmission

91615 Apportionment of common profits and expenses liability of unit owner

91620 Maintenance and improvement of units91625 Use and maintenance of common elements91630 Compliance with bylaws and other restric

tions

91635 Actions by and against unit owners91640 Taxation of units exemptions uniform ap

praisal and assessment

CROSS REFERENCES

Challenge of juror for implied bias on ground oflandlordtenant relationship 136220

Discrimination in selling leasing or renting realproperty prohibited 659033

Landlords title not to be denied by tenant at commencement of relation presumption 413505

Lease of wards property 126421 126426Methods of creating and transferring estate or an

interest in realty 93020Recordation of certain instruments effect 93710Trailer house removal from trailer park when rent

due 446140Writing essential for certain leases 415805

UNIT OWNERSIHP

Conveyancing and recording Ch 9391530

Doing business under assumed name Ch 648

91540

Certain plans to carry stamp of architect 67102591560

Emergency repairs to common elements 9162591570

Discharge of mortgage on real property effect86120

91580

Security interests Ch 7991640

Exemptions from execution 23160 to 2327091670

Action for partition 105205 to 105405

702

SUPERSEDED

1u

LANDLORD AND TENANT UNIT OWNERSHIP 91110

CREATION AND TERMINATION OFTENANCIES

91010 Tenancy when deemed to existA tenancy is deemed to exist under thischapter and ORS 105115 and 105120 whenone has let real estate to another to hold ofhim as a landlord

91020 Tenancies classified Tenancies

are as follows Tenancy at sufferance tenancy at will tenancy for years tenancyfrom year to year tenancy from month tomonth tenancy by curtesy tenancy by entirety and tenancy for life The times andconditions of the holdings shall determinethe nature and character of the tenancy

91030 Tenancy by curtesy entirety orfor life A tenancy by curtesy a tenancy byentirety and a tenancy for life shall besuch as now fixed and defined by the lawsof the State of Oregon

91040 Tenancy at sufferance One whocomes into possession of the real estate ofanother lawfully but who holds over bywrong after the termination of his term isconsidered as a tenant at sufferance No no

tice is required to terminate a tenancy atsufferance

91050 Tenancy at will One who entersinto the possession of real estate with theconsent of the owners under circumstancesnot showing an intention to create a freehold interest is considered a tenant at willWhen the rent reserved in the lease at willis payable at periods of less than threemonths a notice to terminate the tenancyis sufficient if it is equal to the interval between the times of payment of rent The notice to terminate a tenancy at will is sufficient if given for the prescribed periodprior to the expiration of the period forwhich by the terms of the lease and holdingrents are to be paid

91060 Tenancy from year to year Onewho enters into the possession of real estate with the consent of the owner and nocertain time is mentioned but an annualrent is reserved is considered a tenant fromyear to year A notice to terminate a tenancy from year to year is sufficient if it isgiven 60 days prior to the expiration of theperiod for which by the terms of the leaseand holding rents are to be paid

91070 Tenancy from month to monthOne who holds the lands or tenements of an

other under the demise of the other and nocertain time has been mentioned but amonthly rental has been reserved is considered a tenant from month to month Ex

cept as otherwise provided by statute oragreement such tenancy may only be terminated by either the landlord or tenant givingthe other at any time during the tenancynot less than 30 days notice in writingprior to the date designated in the notice forthe termination of the tenancy The tenancyshall terminate on the date designated andwithout regard to the expiration of the period for which by the terms of the tenancyand holding rents are to be paid

91080 Termination when expiration oftenancy fixed by terms of lease A tenantentering into the possession of real estatemay by the terms of his lease fix the dateof expiration of his tenancy and when sofixed no notice is required to render theholding of the tenant wrongful and by forceafter the expiration of his term as fixed byhis lease

91090 Termination of tenancy by failure to pay rent reinstatement The failureof a tenant to pay the rent reserved by theterms of his lease for the period of 10 daysunless a different period is stipulated in thelease after it becomes due and payableoperates to terminate his tenancy No noticeto quit or pay the rent is required to renderthe holding of such tenant thereafter wrongful however if the landlord after such default in payment of rent accepts paymentthereof the lease is reinstated for the fullperiod fixed by its terms subject to termination by subsequent defaults in payment ofrent

91100 Waiver of notice Any person entering into the possession of real estate under written lease as the tenant of anothermay by the terms of his lease waive thegiving of any notice prescribed by ORS91050 to 91070

91110 Notices to be in writing howserved All notices required by ORS 91050to 91070 and by ORS 105120 must be inwriting and must be served upon the tenantby being delivered to him in person or bybeing posted in a conspicuous place on theleased premises in case of his absence or bybeing left at his residence or place of abode


SUPERSEDED

91210 PROPERTY RIGHTS AND TRANSACTIONS

1i4wzyy

91210 Rents payable in advance unlessotherwise agreed demand unnecessary Unless otherwise expressly provided by thelease or terms of holding all rents reservedunder the lease or terms of holding are dueand payable in advance The tenant shall payor tender payment thereof on or prior tothe first day of the rent paying period provided in his lease or by the terms of hisholding and no demand therefor is necessary to render a tenant in default

91220 Tenant in possession liable forrent remedies for recovery 1 Every person in possession of land out of which anyrent is due whether it was originally demised in fee or for any other estate of freehold or for any term of years is liable forthe amount or proportion of rent due fromthe land in his possession although it isonly a part of what was originally demised

2 Such rent may be recovered in anaction at law and the deed of demise orother instrument in writing if there is anyshowing the provisions of the lease may beused in evidence by either party to provethe amount due from the defendant

3 This section shall not deprive landlords of any other legal remedy for the recovery of their rents whether secured tothem by their leases or provided by law


EMBLEMENTS

91310 Farm tenants right to emblements When the leasing or occupation is forthe purpose of farming or agriculture thetenant or person in possession shall afterthe termination of the lease or occupancyhave free access to the premises to cultivate and harvest or gather any crop or produce of the soil planted or sown by him before the service of notice to quit 4 Common expenses means

a Expenses of administration maintenance repair or replacement of the commonelements

b Expenses agreed upon as common byall the unit owners and

c Expenses declared common by subsection 1 of ORS 91590 and subsection2 of ORS 91595 or by the declaration orthe bylaws of the particular condominium

5 Declaration means the instrumentby which the property is submitted to theprovisions of ORS 91505 to 91675

704


MATTERS RELATING TO GAMBLING

LEASES

91410 Gambling leases prohibited statas of rental contracts termination recovery of possession 1 No person shall letor rent any house room shop or otherbuilding or any boat booth garden or otherplace knowing or having reason to believeit will be used for gambling purposes

2 All contracts for the rent of a roombuilding or place in violation of subsection1 of this section are void between theparties

3 Any person letting or renting anyroom building or place mentioned in subsection 1 of this section which is at anytime used by the lessee or occupant thereofor any other person with his knowledge orconsent for gambling purposes upon discovery thereof may avoid and terminatesuch lease or contract of occupancy andrecover immediate possession of such building or other place by an action at law forthat purpose to be brought before any justice of the peace of the county in which theuse is permitted

91420 Penalty for letting or renting aplace for gambling purposes Violation ofsubsection 1 of ORS 91410 results in aforfeiture of twice the amount of the rent

of such building or other place for sixmonths to be recovered by action at law instituted by the district attorney in the nameof the state


UNIT OWNERSHIP

General Provisions

91505 Definitions for ORS 91505 to

91675 As used in ORS 91505 to 91675unless the context requires otherwise

1 Association of unit owners meansall the unit owners acting as a group in accordance with the declaration and bylaws

2 Building means a multipleunitbuilding or singleunit buildings or any combination thereof comprising a part of theproperty

3 Common elements means the general common elements and the limited common elements

is

SUPERSEDED


6 General common elements unlessotherwise provided in a declaration or byconsent of all the unit owners means

a The land on which a building is located except any portion thereof included ina unit or made a limited common element bythe declaration

b The foundations columns girdersbeams supports main walls roofs hallscorridors lobbies stairs fire escapes entrances and exits of a building

c The basements yards gardens parking areas and outside storage spaces

d Installations of central services suchas power light gas hot and cold waterheating refrigeration air conditioning wastedisposal and incinerating

e The elevators tanks pumps motorsfans compressors ducts and in general allapparatus and installations existing for common use

f The premises for the lodging of janitors or caretakers of the property and

g All other elements of a building necessary or convenient to its existence maintenance and safety or normally in commonuse

7 Limited common elements meansthose common elements designated in thedeclaration or by agreement of all the unitowners as reserved for the use of a certainunit or number of units to the exclusion ofthe other units

8 Majority or majority of the unitowners unless otherwise provided in thedeclaration means the owners of more than50 percent in the aggregate of the undividedownership interests in the general commonelements as the percentage of interest in suchelement appertaining to each unit is expressed in the declaration Whenever a percentage of the unit owners is specified percentage means such percentage in the aggregate of such undivided ownership

9 Manager means the managerboard of managers or other person in chargeof the administration of or managing theproperty

10 Property means the land allbuildings improvements and structuresthereon and all easements rights and appurtenances belonging thereto which are submitted to the provisions of ORS 91505 to91675

11 Recording Officer means thecounty officer charged with the duty of filingand recording deeds and mortgages or any

other instruments or documents affectingthe title to real property

12 Unit means a part of the propertyincluding a building or one or more rooms occupying one or more floors of a building or apart or parts thereof intended for any typeof independent use and with a direct exit toa public street or highway or to a commonarea or areas leading to a public street orhighway

13 Unit designation means the number letter or combination thereof designating a unit in the declaration

14 Unit owner means the personowning a unit in fee simple absolute individually or as coowner in any real estate tenancy relationship recognized under the laws ofthis state

1963 c541 2

91510 Short title ORS 91505 to

91675 may be cited as the Unit OwnershipLaw

1963 c541 1

91515 and 91520 Reserved for expansion

Creation of Unit Ownership91525 Property submitted to unit

ownership by declaration 1 In order to

submit any property to the provisions ofORS 91505 to 91675 the owner thereofshall record a declaration in the office of therecording officer of the county in which suchproperty is located The declaration shall beexecuted in accordance with ORS 91530 andacknowledged by the owner of the property

2 A preliminary declaration settingforth as many of the particulars required byORS 91530 as may then be practicable maybe recorded before construction of a buildingdescribed in the declaration is completed Thepreliminary declaration shall not relieve theowner from the necessity of filing the declaration as required by ORS 915301963 c541 3 15

91530 Contents of declaration name ofproperty 1 A declaration shall contain

a A description ofthe landb The name by which the property

shall be known and a general description ofeach unit and the building or buildings including the number of stories and basementsof each building the number of units and theprincipal materials of which they are constructed

c The unit designation location approximate area of each unit and any other

705

SUPERSEDED


data necessary for proper identificationd A description of the general common

elements and the percentage of the interestof each unit owner therein

e A description of the limited commonelements if any stating to which units theiruse is reserved and in what percentagef A statement of the use for which the

building or buildings and each of the units isintended

g The name of a person to receive service of process in the cases provided in subsection 1 of ORS 91635 and the residenceor place of business of such person whichshall be within the county in which the property is located

h Any other details regarding theproperty that the person executing the declaration considers desirable

2 No property shall bear a name usinga word which is the same as similar to orpronounced the same as a word in the nameof any other property or subdivision in thesame county except for the words apartment motel building court placeor similar words

1963 c541 14 16

91535 Approval of declaration Be

fore a declaration may be recorded it mustbe approved by the county assessor and thetax collector of the county in which the property is located No declaration shall be approved unless

1 The name is proper so as to complywith subsection 2 of ORS 91530 and

2 All taxes and assessments due andpayable have been paid1963c541 17

91540 Recording declaration and floorplans 1 When a declaration is made and

approved as required it shall upon the payment of the fees provided by law be recorded by the recording officer The fact of re

be attached to the floor plans a statement ofthe registered architect or registered professional ongineer who prepared the floor planscertifying that the plans fully and accuratelydepict the layout of the units and floors ofthe building and the date construction ofthe building was completed1963 c541 18 1991545 and 91550 Reserved for expansion

Management of Property EncumbrancesConveyances

91555 Adoption of bylaws recordingamendment 1 The unit owners of eachproperty shall adopt bylaws to govern theadministration of the property

2 A copy of the bylaws certified bythe chairman and secretary of the association shall be recorded simultaneously withthe declaration of the property to which thebylaws relate

3 An amendment of the bylaws shallnot be effective unless approved by 75 percent of the unit owners and until a copy ofthe bylaws as amended certified by thechairman and secretary of the association ofunit owners is recorded1963 x541 201

91560 Contents of bylaws The bylaws shall provide for

1 The election from among the unitowners of a board of directors the numberof persons constituting the board and thatthe terms of at least onethird of the directors shall expire annually the powers andduties of the board the compensation ifany of the directors the method of removal from office of directors and whether ornot the board may engage the services of amanager or managing agent

2 The method of calling meetings ofthe unit owners and the percentage if otherthan a majority as defined by subsection 8of ORS 91505 that shall constitute a quor

cording and the date thereof shall be entered um

thereon At the time of recording a declaration the person offering it for record shallalso file an exact copy certified by the recording officer to be a true copy thereofwith the county assessor

2 Floor plans of a building described ina declaration shall be recorded simultaneously with the declaration The floor plans shallshow the layout of each unit in a building including the unit designation location and dimensions of each unit and the common ele

3 The election of a chairman a secretary and a treasurer

4 The maintenance upkeep and repairof the common elements and payment for theexpense thereof including the method of approving payment vouchers

5 The employment of personnel necessary for the maintenance upkeep and repairof the common elements

6 The manner of collecting from theunit owners their share of the common ex

ments to which each has access There shall penses706

J

SUPERSEDED


7 The method of adopting and ofamending administrative rules and regulations governing the details of the operationand use of the common elements

8 Such restrictions on and requirements respecting the use and maintenance ofthe units and the use of the common ele

ments not included in the declaration as aredesigned to prevent unreasonable interference with the use of their respective unitsand of the common elements by the severalunit owners

9 The method of amending the bylawssubject to subsection 3 of ORS 915551963 c541 21

91565 Unit deeds The deed of a unit

shall contain

1 A description of the land the nameof the property and the recording indexnumbers and date of recording of the declaration

2 The unit designation of the unit3 The use for which the unit is in

tended

4 The percentages of undivided interest in the common elements appertaining tothe unit

5 Any further details the grantor andgrantee may consider desirable1963 c541 22

91570 Removal of unit from blanket

mortgage At the time of the first conveyance of each unit following the recording ofthe declaration every mortgage and otherlien affecting such unit including the undivided interest of the unit in the common

elements shall be paid and satisfied of record or the unit being conveyed and its interest in the common elements shall be released therefrom by partial release duly recorded

1963 c541 23

91575 Liens against property removalfrom lien effect of part payment 1 Subsequent to recording a declaration and whilethe property remains subject to ORS 91505to 91675 no lien shall arise or be effectiveagainst the property During such periodliens or encumbrances shall arise or be cre

ated only against each unit and the undivided interest in the common elements appertaining thereto in the same manner anunder the same conditions as liens or encum

brances may arise or be created upon oagainst any other separate parcel of realproperty subject to individual ownership

2 No labor performed or materials furnished with the consent or at the request ofa unit owner his agent contractor or subcontractor shall be the basis for the filingof a mechanicsor materialmanslien againstthe unit of any other unit owner not consenting to or requesting the labor to be performed or the materials to be furnished except that consent shall be considered givenby the owner of any unit in the case of emergency repairs thereto performed or furnished with the consent or at the request ofthe manager

3 If a lien becomes effective againsttwo or more units the owner of each unitsubject to such a lien shall have the right tohave his unit released from the lien by payment of the amount of the lien attributableto his unit The amount of the lien attribut

able to a unit and the payment required tosatisfy such a lien in the absence of agreement shall be determined by application ofthe percentage established in the declarationSuch partial payment satisfaction or discharge shall not prevent the lienor from proceeding to enforce his rights against any unitand the undivided interest in the common

elements appertaining thereto not so releasedby payment satisfaction or discharge1963 c541 24

91580 Lien of association against unitrecording foreclosure 1 Whenever anassociation of unit owners acting throughits manager furnishes to a unit any serviceslabor or material lawfully chargeable as common expenses the association of unit owners upon complying with subsection 2 ofthis section shall have a lien upon the individual unit and the undivided interest in thecommon elements appertaining to such unitfor the reasonable value of such common ex

penses and the lien shall be prior to all otherliens or encumbrances upon the unit except

a Tax and assessment liens andb A first mortgage or trust deed of

record

2 An association of unit owners claiming the benefits of subsection 1 of this section shall record in the county in which theunit or some part thereof is located a claimcontaining a true statement of the account

d due for such common expenses after deducting all just credits and offsets the name of

r the owner of the unit or reputed owner ifknown a description of the property wherethe common expenses were furnished and the

707

SUPERSEDED


designation of the unit sufficient for identification

3 The claim shall be verified by theoath of some person having knowledge of thefacts and shall be filed with and recorded bythe recording officer in the book kept for thepurpose of recording liens filed under ORS87035 The record shall be indexed as deeds

and other conveyances are required by lawto be indexed

4 The proceedings to foreclose lienscreated by this section shall conform as nearly as possible to the proceedings to forecloseliens created by ORS 87010 The lien may beenforced by the manager acting on behalf ofthe association of unit owners An action to

recover a money judgment for unpaid common expenses may be maintained withoutforeclosing or waiving the lien securing theclaim for common expenses1963c541 26 27

91585 Receiver for unit power of property manager to bid at foreclosure sale In

any foreclosure suit against a unit the unitowner shall be required to pay a reasonablerental for the unit if so provided in the bylaws and the plaintiff in such foreclosureshall be entitled to the appointment of a receiver to collect the rent The manager acting on behalf of the unit owners shall havepower unless prohibited by the declarationto bid in the unit at the foreclosure sale andto acquire and hold lease mortgage and convey the same1963 c541 28

91590 Liability for unpaid share ofcommon expenses 1 Where the purchaser of a unit obtains title to the unit as a result of foreclosure of the first mortgage ortrust deed such purchaser his successorsand assigns shall not be liable for any of thecommon expenses chargeable to such unitwhich became due prior to the acquisition oftitle to such unit by such purchaser Suchunpaid share of common expenses shall be acommon expense of all the unit owners including such purchaser his successors andassigns

2 In a voluntary conveyance of a unitthe grantee shall be jointly and severally liable with the grantor for all unpaid chargesagainst the latter for his proportionate shareof the common expenses up to the time of thegrant or conveyance without prejudice tothe grantees right to recover from the grantor the amounts paid by the grantee there

for However upon request of a prospectivepurchaser the manager shall make and deliver a statement of the unpaid chargesagainst the prospective grantor and thegrantee in that case shall not be liable fornor shall the unit when conveyed be subjectto a lien filed thereafter for any unpaidcharges against the grantor in excess of theamount therein set forth1963 c541 29 30

91595 Records of receipts and expenditures affecting common elements insurance1 The manager shall keep detailed accurate records in chronological order of thereceipts and expenditures affecting the common elements itemizing the maintenance andrepair expenses of the common elements andany other expenses incurred Such recordsand the vouchers authorizing the paymentsshall be available for examination by theunit owners at convenient hours of weekdays

2 The manager as trustee for the unitowners shall if required by the declarationthe bylaws or by a majority of the unit owners insure the building against loss or damage by fire and such other hazards as shallbe required without prejudice to the right ofeach unit owner to insure his own unit forhis own benefit The premiums for such insurance on the building are common expenses1963c541 25 3191600 Reserved for expansion

Attributes and Duties of Ownership91605 Status and ownership of units

1 While the property is submitted to theprovisions of ORS 91505 to 91675 a unitmay be individually conveyed and encumbered and may be the subject of ownershippossession or sale and of all types of juridicacts inter vivos or mortis causa as if it weresole and entirely independent of the otherunits of which they form a part and the corresponding individual titles and interestsshall be recordable

2 Each unit owner shall be entitled tothe exclusive ownership and possession of hisunit

1963 c541 4 5

708

mo

be

co

pre

91610 Interest of unit owners in comn elements 1 Each unit owner shallentitled to an undivided interest in the

mmon elements in the percentage exssed in the declaration Such percentage

SUPERSEDED


r

shall be in the approximate relation that thevalue of the unit at the date of the declaration bears to the then combined value of allthe units having an interest in the particularcommon elements Value need not conform tomarket value The percentage of undividedinterest of each unit owner in the commonelements as expressed in a declaration shallnot be altered unless all unit owners havingan interest in the particular common elementagree thereto and record an amendment tothe declaration setting forth the altered percentage of each unit owner having an interest

2 The undivided interest in the common elements shall not be separated fromthe unit to which it appertains and shall beconveyed or encumbered with the unit eventhough such interest is not expressly mentioned or described in the conveyance orother instrument

3 The common elements shall remainundivided and no unit owner shall bring anyaction for partition or division of any partthereof except as proveded in ORS 91670Any covenant to the contrary is void1963 c541 6 7

91615 Apportionment of common profits and expenses liability of unit owner1 The common profits of the propertyshall be distributed among and the commonexpenses shall be charged to the unit ownersaccording to the percentage of undivided interest of each in the common elements

2 No unit owner may exempt himselffrom liability for his contribution towardsthe common expenses by waiver of the use orenjoyment of any of the common elements orby abandonment of his unit1963 c541 8 12

91620 Maintenance and improvement ofunits A unit owner shall make no repair oralteration or perform any other work on hisunit which would jeopardize the soundness orsafety of the property reduce the valuethereof or impair any easement or hereditament unless the consent of all the other unitowners affected is first obtained1963 c541 9

91625 Use and maintenance of commonelements 1 Each unit owner may usethe common elements in accordance with the

purposes for which they are intended butmay not hinder or encroach upon the lawfulrights of the other unit owners

2 The necessary work of maintenancerepair and replacement of the common elements and additions or improvements to thecommon elements shall be carried out only as

provided in the bylaws3 The association of unit owners shall

have the right to be exercised by the manager to have access to each unit as may benecessary for the maintenance repair or replacement of the common elements or tomake emergency repairs therein necessaryfor the public safety or to prevent damage tothe common elements or to another unit1963 c541 10 11

91630 Compliance with bylaws andother restrictions Each unit owner shall

comply with the bylaws and with the administrative rules and regulations adopted pursuant thereto and with the covenants conditions and restrictions in the declaration orin the deed to his unit Failure to complytherewith shall be grounds for an actionmaintainable by the association of unit owners or by an aggrieved unit owner1963 c541 13

91635 Actions by and against unit owners 1 Actions may be brought on behalfof two or more of the unit owners as theirrespective interests may appear by the manager with respect to any cause of action relating to the common elements or more thanone unit Service of process on two or moreunit owners in any action relating to thecommon elements or more than one unit

may be made on the person designated in thedeclaration to receive service of process or induplicate on the recording officer of thecounty in which the declaration is filed Therecording officer shall promptly send a copyof the document served by certified or registered mail to the person designated in thedeclaration to receive service of process Atthe time of service on the recording officerthe serving party shall pay to the recordingofficer a fee of 10 which shall be a taxabledisbursement

2 If the association of unit ownerswishes to designate a person other than theone named in the declaration to receive ser

vice of process in the cases provided in subsection 1 of this section it shall record anamendment to the declaration The amendment shall be certified by the chairman andthe secretary of the association of unit owners and shall state the name of the successor

709

SUPERSEDED

91640 PROPERT RIGHTS AND TRANSACTIONS

with his residence or place of business as required by paragraph g of subsection 1 ofORS 91530 and that the person named inthe amendment was designated by resolutionduly adopted by the association of unit owners

1963 c541 38 39

91640 Taxation of units exemptionsuniform appraisal and assessment 1Each unit with its percentage of undividedinterest in the common elements shall be con

sidered a parcel of real property subject toseparate assessment and taxation by anytaxing unit in like manner as other parcelsof real property Neither the building theproperty nor any of the common elementsshall be considered a parcel for purposes oftaxation

2 In determining the true cash value ofa unit with its undivided interest in the com

mon elements the county assessor may usethe percentage of undivided interest in thecommon elements appertaining to a unit asexpressed in the declaration

3 Exemptions from executions and realproperty taxes apply to the owner of eachunit or to the individual units as the casemay be

4 The State Tax Commission shall

have the authority to make rules and regulations prescribing methods best calculated tosecure uniformity according to law in the appraisal and assessment of units constitutingpart of a property submitted to the provisions of ORS 91505 to 916751963 c541 40 41 42

91645 and 91650 Reserved for expansion

Removal of Property from Unit Ownership91670 Action for partition division of

sale proceeds If the property is removedfrom the provisions of ORS 91505 to 91675s

as provided in ORS 91655 and 91660 it shallbe subject to an action for partition at the

s suit of any unit owner The net proceeds ofsale together with the net proceeds of theinsurance on the property if any shall be

e considered as one fund and shall be dividedamong the unit owners in proportion to theirrespective undivided interests after first paying out of the respective shares of the unitowners to the extent sufficient for the purpose all liens on the undivided interest in theproperty owned by each unit owner

7101963 c541 36

91655 Removal by unit owners consentof lienholders 1 All of the unit ownersmay remove a property from the provisionof ORS 91505 to 91675 by executing and recording an instrument to that effect if theholders of all liens affecting any of the unitconsent thereto or agree in either case byinstruments duly recorded that their liens betransferred to the undivided interest of thunit owner in the property after removalfrom the provisions of ORS 91505 to 91675

2 The tax collector for any taxing unithaving a lien for taxes or assessments shallhave authority to consent to such a transferof any tax or assessment lien1963 c541 32

91660 Agreement by unit owners thatproperty is obsolete damage or destruction1 Ninety percent of the unit owners mayagree that the property is obsolete in wholeor in part and whether or not it shall be renewed and restored or sold and the proceedsof sale distributed If 90 percent of the unitowners agree to renew and restore the property the expense thereof shall be paid by allthe unit owners as common expenses If 90percent of the unit owners agree to sell theproperty the property shall be considered removed from the provisions of ORS 91505 to91675

2 If within 60 days after the date ofthe damage to or destruction of all or part ofthe property the association of unit ownersdoes not decide to repair reconstruct or rebuild the property shall be considered removed from the provisions of ORS 91505 to91675

1963 c541 33 34

91665 Common ownership of propertyremoved from unit ownership If the property is removed from the provisions of ORS91505 to 91675 as provided by ORS 91655and 91660 the property shall be consideredowned in common by all the unit ownersThe percentage of undivided interest of eachunit owner in the property owned in commonshall be the same as the percentage of undivided interest previously owned by suchowner in the common elements Liens affecting any unit shall be liens in accordance withthe then existing priorities against the undivided interest of the unit owner in the property owned in common1963 c541 35

ru

SUPERSEDED


91675 Removal no bar to resubmission sions of ORS 91505 to 91675 shall in no wayThe removal of the property from the provi bar its resubmission

1963 c541 37



711

SUPERSEDED

712

SUPERSEDED

J Chapter 92


Plats and Subdivisions

J

APPROVAL OF PLAN PLATS

92010 Definitions92014 Approval of planning commission or gov

erning body of city or county requiredbefore creating street or way to partition land

92016 Sales or transfers of lots when approvalrequired under regulations adopted underORS 92046 prohibited until approval obtained

92025 Prohibition of sales or transfers of lots priorto recordation of plat

92040 Application to planning commission or governing body of city or county for approval of subdivision plan before recording

92042 Planning commission or governing bodyhaving jurisdiction to approve plans orplats

92044 Adoption of standards governing approvalof plats and of partitioning of land bycreation of street or way

92046 Adoption of regulations requiring approvalof partitioning of land not otherwisesubject to approval

92048 Procedure for adoption of regulations underORS 92046

92050 Requirements of survey and plat of subdivision

92060 Marking certaln points of plats with monuments specifications of monuments

92070 Surveyors affidavit necessary to recordplat contents of affidavit

92080 Preparation of plat92090 Requisites for approval of plat92100 Approval of plat by city engineer or sur

veyor or by county surveyor approvalby county assessor and county governing body

CROSS

I

J1J

City planning commissions Ch 227County planning commissions Ch 215Land use planning assistance 351260Recording plats 205190Reforestation land effect of inclusion in plat 321295School districts compliance with city zoning regu

lations required of 227285Subdivision plans submission to city planning com

mission 227100Unit ownership of real property condominium Ch

91

Vacation of plats Ch 271

92042

Authority to approve subdivision plats in unincorporated area 215170 227110

92050

Field notes and maps of survey to be filed withcounty surveyor 209250

92110 Land in irrigation districts approval ofplat appeal from refusal to approve

92120 Filing and recording plats copies92130 Additional tracings transferred to county

surveyor replacing lost or destroyedrecords

92140 Indexing of plat records92150 Construction of donations marked on plat

CONTROL OF SALES AND LEASES

92210 Definitions for ORS 92210 to 9239092220 Legislative findings construction short title92230 Compliance with ORS 92210 to 92390 re

quired exceptions92240 Preliminary notice of intention92250 Request for further information reply fee92260 Subdivider to keep information current and

consent to service of process92270 Examination of subdivision92280 Waiver of certain requirements of ORS

92210 to 92390

92290 Public report92300 Reimbursement for cost of outofstate ex

amination

92310 Conditions precedent to sales of parcelsalternate requirements

92320 Records of subdivider92330 Prohibited acts

92340 Water and sewage facilities92350 False or misleading advertising prohibited92360 Waiver of rights by purchaser or lessee void92370 Order to desist from unlawful acts

92380 Enjoining violations of ORS 92210 to 92390appointment of receiver or conservator

92390 Disposition of receipts

PENALTIES

92990 Penalties

92060

Monuments established by county surveyor 209070Monuments marking proposed county road 68530

92100

City planning commission approval of plats bynecessity for 227100 227110

92120

Cemetery or crematory corporation recordation ofplans of grounds 61775

Cemetery plats recordation of 97310 to 9733092150

Lands dedicated to or acquired by cities for publicuse not extinguished by adverse possession221750

92210

Real Estate Division of Department of Commerce696375

92310

Mortgages generally Ch 86713

SUPERSEDED

92010 PROPERT RIGHTS AND TRANSACTIONS

APPROVAL OF PLAN PLATS92010 Definitions As used in ORS

92020 to 921501 Plat includes a final map dia

gram drawing replat or other writing containing all the descriptions locations specifications dedications provisions and information concerning a subdivision

2 Subdivide land means to partitiona parcel of land into four or more parcelsof less than five acres each for the purposeof transfer of ownership or building development whether immediate or future whensuch parcel exists as a unit or contiguousunits under a single ownership as shown onthe tax roll for the year preceding the partitioning

3 Subdivision means either an actof subdividing land or a tract of land subdivided as defined in this sectionAmended by 1955 c756 11

92014 Approval of planning commission or governing body of city or county required before creating street or way to partition land No person shall create a street orway for the purpose of partitioning a parcelof land without the approval of the agencyor body authorized to give approval of plansfor subdivision under ORS 92040 with respect to the area in which the parcel is situated1955 c756 3

92016 Sales or transfers of lots whenapproval required under regulations adoptedunder ORS 92046 prohibited until approvalobtained No person shall dispose of transfer sell or agree offer or negotiate to sellany lot or parcel of land in any subdivisionor division of land with respect to which approval is required by any ordinance or regulation adopted under ORS 92046 and 92048until such approval is obtained1955 c756 241

92020 Repealed by 1955 c756 5 ORS 92025enacted in lieu of ORS 92020 and 92030

92025 Prohibition of sales or transfersof lots prior to recordation of plat 1 Noperson shall dispose of transfer sell oragree offer or negotiate to sell any lot oparcel of land in any subdivision until theplat thereof has been acknowledged and recorded with the recording officer of thecounty in which the lot is situated

2 No person shall dispose of trans

fer sell or agree offer or negotiate to sellany lot or parcel of land in any subdivisionby reference to or exhibition or other useof a plat or plan of such subdivision beforethe plat for such subdivision has been sorecorded1955 c756 6 enacted in lieu of ORS 92020 and92030

92030 Repealed by 1955 c756 5 ORS 92025enacted in lieu of ORS 92020 and 92630

92040 Application to planning commission or governing body of city or county forapproval of subdivision plan before recording Before a plat of any subdivision ofland may be made and recorded the subdivider or his authorized agent or representative shall make an application in writingto the planning commission of the countyor city having jurisdiction under ORS 92042or if there is no such commission in such

county or city to the governing body of suchcounty or city for approval of a plan of subdivision and at the same time shall submit atentative map showing the general design ofthe proposed subdivision Approval of thetentative map shall not constitute final acceptance of a subdivision plat for recordingAmended by 1955 c756 7

92042 Planning commission or governing body having jurisdiction to approve plansor plats 1 Land within six miles outsideof the corporate limits of a city is under thejurisdiction of the city for the purpose ofgiving approval of plans or plats of subdivisions under ORS 92040 and 227110However when the governing body of acounty has appointed a county planning commission and has adopted regulations for subdivision c o n t r o l as authorized by ORS215150 land in such county within such sixmile limit shall be under the jurisdiction ofthe county for such purpose

2 Land over six miles from the cor

porate limits of a city is under the jurisdiction of the county for the purpose of givingapproval of plans for subdivisions underORS 920401955 c756 4

r 92044 Adoption of standards governingapproval of plats and of partitioning of landby creation of street or way 1 The Boverning body of a county or a city may byregulation or ordinance adopt standards in

714addition to those otherwise provided by law

SUPERSEDED

PLATS AND SUBDIVISIONS

governing in the area over which the countyor the city has jurisdiction under ORS92042 the approval of plats of subdivisionsand of partitioning of land by creation of astreet or way where the additional standardsare considered necessary to carry out development patterns or plans and to promote thepublic health safety or general welfare Suchstandards may include taking into consideration the location and surrounding area ofthe proposed subdivisions requirements forplacement of utilities for the width andlocation of streets or for minimum lot sizes

and such other requirements as the governing body considers necessary for lesseningcongestion in the streets for securing safetyfrom fire flood pollution or other dangersfor providing adequate light and air forpreventing overcrowding of land or for facilitating adequate provision of transportation water supply sewerage drainage education recreation or other needs

2 Such governing body may also prescribe procedures to be followed in submitting plans and plats of subdivisions for approval1955 c756 9

92046 Adoption of regulations requiring approval of partitioning of land nototherwise subject to approval The governing body of a county or a city may as provided in ORS 92048 When reasonably necessary to accomplish the orderly developmentof the land within the jurisdiction of suchcounty or city under ORS 92042 and to promote the public health safety and generalwelfare of the county or city adopt regulations or ordinances requiring approval bythe agency or body of the county or citywhich is authorized to approve plans forsubdivisions under ORS 92040 of the partitioning of land not otherwise subject to approval under ORS 92010 to 92150 or ORS227100 and 227110 Such regulations orordinances may be applicable throughout thearea over which the county or city has jurisdiction under ORS 92042 or over any portion thereof Such ordinances or regulationsmay specify the classifications of land partitioning which require approval under thissection and may establish standards governing the approval of plats or plans for suchpartitioning The standards may include allor less than all of the same requirementas are provided or authorized for subdi

92050

visions under ORS 92010 to 92150 and mayprovide for different standards for differentclassifications of land partitioning so longas the standards are no more stringent thanare imposed in connection with subdivisions1955 c756 221

92048 Procedure for adoption of regulations under ORS 92046 The procedure foradoption of any ordinance or regulation under ORS 92046 is as follows

1 The planning commission of thecounty or the city shall hold a public hearingon the proposed ordinance or regulationafter publishing notice of the hearing once aweek for two successive weeks prior to thehearing in a newspaper of general circulation published in the area in which land tobe subject to such ordinance or regulation issituated or if there is no such newspaper anewspaper of general circulation published inthe county The notice shall contain the timeplace and purpose of the hearing and a description of the land to be subject to theordinance or regulation

2 After such hearing the planningcommission may recommend to the governing body of the county or city as the casemay be the adoption of such ordinance orregulation

3 Prior to the adoption of such ordinance or regulation the governing body ofthe county or the city shall hold a hearingthereon after giving notice of the hearing inthe same manner provided in subsection 1of this section

4 A copy of any regulation or ordinance adopted by the governing body of acounty or a city under this section togetherwith a map of the area subject to the regulation or ordinance shall be filed with therecording officer of the county in which theland subject to the ordinance or regulationis situated Such ordinance or regulationshall not be effective until so filed

5 The ordinance or regulation may beamended from time to time by following theprocedure prescribed in this section1955c756 23

92050 Requirements of survey and platof subdivision 1 No subdivider shall submit a plat of a subdivision for record until

s all the requirements for the survey and theplat of the subdivision have been met

715

SUPERSEDED


2 The survey for the plat of thesubdivision shall be of such accuracy thatthe error of closure shall not exceed one footin 4000 feet

3 The survey and plat of the subdivision shall be made by a surveyor who isa registered engineer or a licensed land surveyor

4 The plat of a subdivision shall beof such scale that all survey and mathematical information and all other details may beclearly and legibly shown thereon Each lotshall be numbered and each block shall belettered or numbered The lengths of allboundaries of each lot shall be shown Eachstreet shall be named

5 The locations and descriptions of allmonuments shall be carefully recorded uponall plats and the proper courses and distances of all boundary lines shall be shownAmended by 1955 c756 101

92060 Marking certain points of platewith monuments specifications of monuments 1 The initial point of all subdivisionplats shall be marked with a monumenteither of stone concrete or galvanized ironpipe If stone or concrete is used it shall notbe less than 6 inches by 6 inches by 24inches If galvanized iron pipe is used it shallnot be less than two inches in diameter andthree feet long The monument shall be setor driven six inches below the surface of theground The location of the monument shallbe with reference to some known corner established by the United States survey

2 The intersections of all streets avenues and public highways and all points onthe exterior boundary where the boundaryline changes direction shall be marked witbmonuments either of stone concrete galvanized iron pipe or iron or steel rods Ifstone or concrete is used it shall not be lessthan 6 inches by 6 inches by 24 inches Ifgalvanized iron pipe is used it shall not beless than one inch in diameter and 30 incheslong and if iron or steel rods are usethey shall not be less than five eighths ofan inch in least dimension and 30 inches long

3 All lot corners except lot corners ofcemetery lots shall be marked with monuments of either galvanized iron pipe not lethan onehalf inch in diameter or iron osteel rods not less than onehalf inchleast dimension and two feet long

4 Points shall be plainly and permanently marked upon monuments so thatmeasurements may be taken to them towithin onetenth of a footAmended by 1955c756 11

92070 Surveyors affidavit necessaryto record plat contents of affidavit Allplats or diagrams designating the locationof land in any county in the State of Oregonoffered for record shall have attached thereon an affidavit of the surveyor having surveyed the land represented on the plat tothe effect that he has correctly surveyedand marked with proper monuments thelands as represented that he planted a proper monument as provided in ORS 92060 indicating the initial point of such survey andgiving the dimensions and kind of suchmonument and its location with referenceto some known corner established by theUnited States survey or giving two or moreobjects for identifying its location and accurately describing the tract of land uponwhich the lots and blocks are laid out

92080 Preparation of plat All platssubdividing any tracts of land in any countyin this state and dedications of streets alleys avenues or roads or public parks andsquares and other writings made a part ofsuch plats offered for record in any county in this state shall be made in black Indiaink upon a good quality of white coldpressed double mounted drawing paper 18inches by 24 inches in size with the muslinextending three inches at one end for binding purposes The plat shall be of such ascale and the lettering of the approvalsthereof and of the dedication and affidavitof the surveyor shall be of such a size ortype as will permit the whole thereof to beplaced upon one single sheet of paper but nopart shall come nearer any edge of the sheetthan one inch All of the plat shall be on oneside of the sheet but the dedication or otherwritten matter may be on the other sideAmended by 1955 c756 12

d 92090 Requisites for approval of plat1 No plat of a subdivision shall be approved which bears a name using a word whichis the same as similar to or pronounced thesame as a word in the name of any othersubdivision in the same county except for

r e words town city placey

courtin addition or similar words unless the land

platted is contiguous to and platted by the716

1u

SUPERSEDED


same party that platted the subdivision bearing that name or unless the party files andrecords the consent of the party that plattedthe subdivision bearing that name All platsmust continue the block numbers of the platof the same name last filed

2 No plat shall be approved unlessa The streets and alleys are laid out so

as to conform to the plats of adjoining property already filed as to width general direction and in all other respects unless the planning commission or governing body authorized to give approval of plans of subdivisionsunder ORS 92040 determines it is in the

public interest to modify the street patternb Streets and alleys are dedicated to

the public use without any reservation orrestriction whatever

c The name is proper so as to complywith this section

d All taxes and assessments have beenpaidAmended by 1955 c31 l 1955 c756 131

92100 Approval of plat by city engineer or surveyor or by county surveyor approval by county assessor and county governing body 1 Before any plat can be recorded covering land within the corporatelimits of any city it must be approved by thecity engineer or city surveyor if any otherwise by a county surveyor However thegoverning body of the city may designateany county surveyor to serve in lieu of thecity engineer Except as provided in subsection 3 of this section if the land is outsidethe corporate limits of any city the plat shallbe approved by the county surveyor beforeit is recorded All plats must also be approved by the county assessor and the governing body of the county in which the property is located before recording

2 Before approving the plat as requiredby this section the city engineer city surveyor or the county surveyor as the casemay be shall sufficiently check it and thecomputations for making it to determinethat all distances angles bearings and otherdata shown within the plat are correctlycalculated and to determine if the plat andcomputations comply with the provisions ofORS 92050 and with the subdivision re

quirements in effect in the areaforming such service the county

92120

shall collect from the subdivider a fee not toexceed 25

3 Any plat prepared by the county surveyor in his private capacity shall be approved in accordance with subsection 2 ofthis section by the surveyor of a county otherthan the county where the land is locatedThe county governing body shall refer sucha plat to the county surveyor of anothercounty by indorsement on the plat The county governing body in accordance with ORS204401 may provide allowances for traveland other expenses of the surveyor to whomthe plat is referredAmended by 1955 c31 2 1955 c756 14 1957 c688l 1963 c285 1

92110 Land in irrigation districts approval of plat appeal from refusal to approve All subdivision plats located withinthe boundaries of an irrigation district andall plans or plats for vacating laying outwidening extending parking or locatingstreets or alleys in irrigation districts shallbe submitted to the board of directors of theirrigation district and a report thereon shallbe secured from the board in writing beforeapproval by the governing body of thecounty No such plan plat or replat or deedshall be received or recorded in any publicoffice unless the approval of the board ofdirectors of the irrigation district is indorsedthereon in writing An appeal from the action of the board to the circuit court of thecounty in which the land is situated may betaken perfected and prosecuted in the samemanner as an appeal from the justice courtOn appeal the matter shall be tried de novoAmended by 1955 c756 15

92120 Filing a n d recording platscopies 1 The plat of a subdivision described in ORS 92050 when made and approvedas required and offered for record in therecords of the county where the describedland is situated shall upon the payment ofthe fees provided by law be filed by thecounty recording officer The fact of filingand the date thereof shall be entered there

on and it shall then be securely bound withother plats of like character in a book especially prepared for that purpose and designated as Record of Town Plats

2 At the time of filing such plat theoffering it for filing shall also file

county recording officer and withFor per person

surveyor with the717

SUPERSEDED


the county surveyor if requested by him anexact copy thereof made with black Indiaink or photocopy upon a good quality oflinen tracing cloth to the same scale and degree of legibility as the plat The engineer orsurveyor who made the plat shall make anaffidavit to indicate that the tracing clothcopy is an exact copy of the plat The copyfiled with the county recording officer shallbe certified by him to be an exact copy andthen shall be filed in the archives of the

county and be preserved by filing withoutfolding The subdivider shall provide withoutcost one print each from such copy for thecounty assessor the county surveyor and thecity or c o u n t y planning commissionAmended by 1955 c756 16

92130 Additional tracings transferredto county surveyor replacing lost or destroyed records Any additional tracings ofPlats as mentioned in ORS 92120 other thanthe one copy filed with the county recordingofficer shall be transferred to the countysurveyor if requested by him who then shallkeep them well bound and safeguarded asrequired by law If such plat or copy thereofis lost destroyed mutilated or missing fromthe county records the county surveyorshall make a copy thereof and file it in theproper office of record Each such copy madeby the county surveyor pursuant to this section shall bear a certificate of the surveyorthat it was made in compliance with this section and that it is a true copy of the originalrecord


92140 Indexing of plat records Thebooks entitled Record of Town Plats shallbe provided in the front part with indicesin which shall be entered in alphabetical order all plats recorded therein The dedications to such plats shall also be indexed in theindices of Records of Deeds for the countyWhen the plats are so filed bound and M

eral warranty to the donee or grantee forhis use for the purposes intended by thedonor or grantorAmended by 1955c756 19


CONTROL OF SALES AND LEASES

92210 Definitions for ORS 92210 to92390 As used in ORS 92210 to 92390

1 Blanket encumbrance means atrust deed or mortgage or any other lien orencumbrance mechanics lien or otherwisesecuring or evidencing the payment of moneyand affecting more than one lot or parcel ofsubdivided land or an agreement affectingmore than one such lot or parcel by whichthe subdivider holds such subdivision underan option contract to sell or trust agreementTaxes and assessments levied by publicauthority shall not be considered a blanketencumbrance

2 Commissioner means the Real Estate Commissioner

3 Person includes a natural persona domestic or foreign corporation a partnership an association a joint stock company atrust and any unincorporated organizationAs used in ORS 92210 to 92390 the termtrust includes a common law or businesstrust but does not include a private trust ora trust created or appointed under or by virtue of any last will and testament or by acourt of law or equity

4 Real property sales contract meansan agreement wherein one party agrees tolease or to convey title to real property toanother party upon the satisfaction of specified conditions set forth in the contract

5 Sale or lease includes every disposition transfer or offer or attempt to dispose of or transfer land in a subdivision oran interest or estate therein by a subdivideror his agent including the offering of suchproperty as a prize or gift when a monetarycharge or consideration for whatever purpose is required by the subdivider or his

dexed they shall be the legal record of all agentplatsAmended by 1955 c756 181 6 Subdivided lands and subdivision

92150 Construction of donations marked on plat Every donation or grant to thepublic including streets and alleys or to anyindividual religious society corporation obody politic marked or noted as such on thplat of the subdivision wherein the donationor grant was made shall be considered a gen

mean improved or unimproved land or landsdivided or proposed to be divided for thepurpose of sale or lease whether immediateor future into four or more lots or parcels

r 7 Subdivider means any person whoe causes land to be subdivided into a subdivi

sion for himself or for others or who undertakes to develop a subdivision but does not

718

SUPERSEDED

PLATS AND SUBDIVISIONS 92250

include a public agency or officer authorizedby law to make subdivisions1963 c624 3

92220 Legislative findings construction short title 1 The Legislative Assembly finds that vast tracts of marginal orsubmarginal lands in this and other stateshave been and are now being subdivided andoffered to the public as investments and potential residential and commercial propertythat the development of new subdivisions andthe promotion of sales and leases of suchproperty are now largely uncontrolled andunregulated in this state and that a needexists to protect the public from fraud deceitand misrepresentation

2 The provisions of ORS 92210 to92390 are in addition to and not in lieu ofthe existing provisions of ORS 92010 to92150

3 ORS 92210 to 92390 may be cited asthe Oregon Subdivision Control Law 92250 Request for further information1963 c624 1 2 25 reply fee 1 The commissioner may re

quire the subdivider to furnish such addition92230 Compliance with ORS 92210 to

92390 required exceptions 1 No personshall offer any subdivided lands for sale orlease after September 2 1963 without having complied with all the applicable provisions of ORS 92210 to 92390

2 ORS 92210 to 92390 do not apply tothe sale or leasing of apartments officesstores or similar space within an apartmentbuilding industrial building or commercialbuilding or cooperative apartments and condominiums

1963 c624 4 19

certified copy of the subdivision plat recorded in the city or county records and a mapshowing the proposed layout and its relationto existing streets or roads and utilities

4 A brief but comprehensive statementdescribing the land on and the locality inwhich the subdivision is located

5 A statement of the condition of thetitle to the land

6 A statement of the provisions ifany that have been made for legal accesssewage disposal and public utilities in theproposed subdivision including water electricity gas and telephone facilities

7 A statement of the use or uses forwhich the proposed subdivision will be offered and

8 A statement of the provisions if anylimiting the use or occupancy of the parcelsin the subdivision

1963 c624 5

92240 Preliminary notice of intentionPrior to the time when subdivided lands ianother state are to be offered for sale o

lease within this state or when any sudivided lands located within this state are t

be offered for sale or lease the subdivider ohis agent shall by a Preliminary NoticeIntention notify the commissioner in writing of his intention to sell or lease A preliminary notice of intention shall contain truinformation as follows

1 The name and the business and resdence address of the subdivider

2 The names and the business addresses of all licensees of the commissioner and

all other persons selling or leasing withithis state lots or parcels in the subdivisio

3 The legal description and area of thlands the proposed plat or if applicable

al information in a Request for FurtherInformation as the commissioner determines

to be necessary in the administration and enforcement of ORS 92210 to 92390 includingbut not limited to

a A statement of the terms and conditions on which it is intended to transfer or

dispose of the land or interest therein together with copies of any contract conveyance lease assignment or other instrumentintended to be used

b Copies of all sales pamphlets andliterature to be used in connection with the

proposed subdivision andn c Any other information that the subr divider may desire to present

b 2 The subdividersreply to the first reo quest for further information required by ther commissioner under subsection 1 of this

of section shall be accompanied by proof of thefinancial ability of the subdivider to completeimprovements and facilities which are

e a Required by the appropriate statecity and county authorities and

i b Promised to prospective purchasers3 The subdividersreply to the first re

quest for further information requested byof the commissioner under subsection 1 ofn this section shall be accompanied by a fee as

n follows

e a For subidivisions containing 10 lotsa or parcels or less 10

719

SUPERSEDED


b For subdivisions containing over 10but not more than 25 lots or parcels 25

c For subdivisions containing over 25but not more than 50 lots or parcels 50

d For subdivisions containing over 50but not more than 100 lots or parcels 75

e For subdivisions containing over 100lots or parcels 75 and 50 cents for eachadditional lot or parcel over 100 up to a totalmaximum of 2501963 c624 6

92260 Subdivider to keep informationcurrent and consent to service of process1 The information required under ORS92240 and 92250 shall be kept current bythe subdivider Any material change in theinformation furnished to the commissioner in

the preliminary notice of intention shall bereported by the subdivider within 10 daysafter the change occurs Any material changein the information furnished to the commis

sioner in the subdividersreply to a requestfor further information shall be reported bythe subdivider at least 10 days before thechange occurs

2 Every nonresident subdivider at thetime of filing the preliminary notice of intention and information required by ORS92240 and 92250 shall also file with thecommissioner an irrevocable consent that ifin any suit or action commenced against himin this state personal service of summons orprocess upon him cannot be made in thisstate after the exercise of due diligence avalid service may thereupon be made uponhim by delivering the summons or process tothe Secretary of State1963 c624 7 17

92270 Examination of subdivision

1 The commissioner may make an examination of any subdivision subject to ORS92210 to 92390 to be offered for sale or

lease The commissioner may at any timemake a public report of his findings

2 The commissioner may waive an examination of a real estate subdivision located

in another state when that state has an exist

ing subdivision law which provides for theexamination of and a public report on thereal estate subdivision and where that state

will waive investigation of a real estate subdivision located within this state and will ac

cept in lieu thereof a report prepared by thecommissioner under subsection 1 of thissection

1963 ce624 8

92280 Waiver of certain requirementsof ORS 92210 to 92390 With respect to anysubdivision within this state if after examination of the preliminary notice of intentionrequired by ORS 92240 the commissionerconcludes that the sale or lease of any portion of such subdivision would be reasonablycertain not to involve any misrepresentationdeceit or fraud he shall waive all of the provisions of ORS 92210 to 92390 except ORS92350 to 92380 and subsection 2 of ORS92990 which he considers unnecessary forthe protection of the public from fraud deceit or misrepresentation The commissionershall notify the subdivider within 15 days ofreceipt of the preliminary notice of intention of his approval or disapproval of any requested waiver However the commissionermay for good and sufficient cause revokesuch waiver at any time upon 10 days noticeand a hearing held for such purpose1963 c624 9

92290 Public report 1 No personshall sell or lease any lot or parcel in a subdivision prior to the issuance of the commissionerspublic report

2 If required by the commissioner thesubdivider or agent shall take a receipt fromsuch prospective purchaser or lessee upon delivery of a copy of the commissionerspublicreport and such receipts shall be kept on filewithin this state in the possession of thesubdivider subject to inspection by the commissioner for a period of three years fromthe date the receipt is taken

3 The commissionerspublic reportshall not be used for advertising purposesunless the report is used in its entirety Noportion of the report shall be underscoreditalicized or printed in larger or heavier typethan the balance of the report unless thetrue copy of the report so emphasizes suchportion

4 The commissioner may furnish atcost copies of his public report for the use ofsubdividers

1963 c624 10 11

92300 Reimbursement for cost of outofstate examination When an examinationis to be made of subdivided lands situated inthe State of Oregon or situated outside thestate for sale or lease within this state thecommissioner in addition to the filing feeprovided in ORS 92250 may require thesubdivider to advance payment of an amountequivalent to 10 cents a mile for each mile

720

J

SUPERSEDED


estimated by the commissioner to be traveled in going to and returning from the location of the project and an amount estimatedto be necessary to cover the additional expense of such inspection not to exceed 50 aday for each day consumed in the inspectionof the project1963 c624 12

92310 Conditions precedent to sales ofparcels alternate requirements 1 Noson shall sell or offer to sell any lot or parcelwithin a subdivision unless all of the follow

ing conditions are complied witha A copy of the title report or abstract

as it relates to the property being sold shallbe placed in escrow with a bank an attorneyat law a trust company a title insurancecompany or any other person or firm authorized to receive escrows under the laws of thisstate

b The original sales contract relating tothe purchase of real property in such subdivision clearly setting forth the legal description of the property being purchased theprincipal amount of the encumbrance outstanding at the date of the sales contract andthe terms of the contract shall be includedin such escrow deposit

c A partial release of the lot or parcelbeing sold from the terms and provisions ofany blanket encumbrance as described in subsection 1 of ORS 92210 shall be includedin such escrow deposit

d A release of any other lien or encumbrance existing against such lot or parcel being sold as revealed by such title reportshall be included in such escrow deposit

e A warranty or bargain and sale deedin good and sufficient form conveying merchantable and marketable title to the purchaser of such lot or parcel shall be includedin such escrow deposit

2 Unless the legal owner of the lot orparcel being sold shall acknowledge execution of the contract of sale in the manner

provided for acknowledgement of deeds andconsent to recording of the contract by thepurchaser the legal owner shall executeacknowledge and deliver a good and sufficient deed conveying title to such lot or parcel to a trustee under an agreement of trustin form acceptable to the commissioner Thetrustee shall record the deed as provided inORS chapter 93 The agreement of trustshall provide generally for conveyance by thetrustee to the purchaser if and when thepurchaser becomes entitled to delivery ofthe

92330

deed described in paragraph e of subsection 1 of this section and shall furtherprovide generally for reconveyance by thetrustee to the trusteesgrantor upon requestof the trusteesgrantor if and when the purchaser shall be in default under the terms ofthe contract of sale

3 Only a bank attorney at law trustcompany title insurance company or otherfirm or person authorized to receive escrowsunder the laws of this state and located with

in this state may act as trustee under subsection 2 of this section

4 In lieu of the procedures provided insubsections 1 and 2 of this section thesubdivider shall conform to such alternative

requirement or method which the commissioner may deem acceptable to carry into effect the intent and provisions of this section1963 c624 13

92320 Records of subdivider Recordsof the sale or lease of real property withina subdivision shall be subject to inspectionby the commissioner No subdivider or agentshall make any change of address affectingthe location of the subdividers or agentsrecords without first obtaining the approvalof the commissioner in writing of such intended change1963 c624 14

92330 Prohibited acts No person shallin connection with the offer sale or lease ofany lot or parcel in a real estate subdivisiondirectly or indirectly

1 Employ any device scheme or artifice to defraud

2 Make any untrue statement of a material fact or fail to state a material factnecessary to make the statement made inthe light of the circumstances under which itis made not misleading

3 Engage in any act practice or courseof business which operates or would operateas a fraud or deception upon any person

4 Issue circulate or publish any prospectus circular advertisement printed matter document pamphlet leaflet or other literature which contains an untrue statementof a material fact or fails to state a material

fact necessary in order to make the statements therein made in the light of the circumstances under which they are made notmisleading

5 Issue circulate or publish any advertising matter or make any written represen

f21

SUPERSEDED


tation unless the name of the person issuing circulating or publishing the matter ormaking the representation is clearly indicated

6 Make any statement or representation or issue circulate or publish any advertising matter containing any statement tothe effect that the real estate subdivision has

been in any way approved or indorsed by thecommissioner

1963 c624 15

92340 Water and sewage facilities Nosubdivider of a real estate subdivision shallsell or enter into any contract for the saleor lease of any lot or parcel in such subdivision until preliminary plans for providingsuch lot or parcel with domestic water supply and sewage disposal facilities have beensubmitted to the State Health Officer or hisdesignated county representative The provisions of this section shall not apply to thosesubdivisions which have been approved bythe proper authority for the purpose of building homes to be financed by the FederalHousing Administration insured loans orVeterans Administration guaranteed loans1963 c624 16

92350 False or misleading advertisingprohibited It shall be unlawful for any owner subdivider agent or employe of such subdivision or other person with intent directlyor indirectly to sell or lease subdivided landsor lots or parcels therein to authorize usedirect or aid in the publication distributionor circularization of any advertisement radiobroadcast or telecast concerning subdividedlands which contains any statement pictorial representation or sketch which is falseor misleading Nothing in this section shallbe construed to hold the publisher or employeof any newspaper any job printer broadcaster or telecaster liable for any publicationreferred to in ORS 92210 to 92390 unlessthe publisher employe printer broadcasteror telecaster has actual knowledge of thefalsity thereof or has an interest in the subdivided lands advertised or the sale thereof1963 c624 18

92360 Waiver of rights by purchaser orlessee void Any condition stipulation or provision in any sales contract or lease or inany other legal document binding any purchaser or lessee to waive any legal rightsagainst the subdivider shall be deemed to becontrary to public policy and void1963 c624 21

722

92370 Order to desist from unlawfulacts Whenever the commissioner finds thatany owner subdivider or other person is violating any of the provisions of ORS 92210 to92390 or of the regulations pertaining thereto or that the further sale or lease of lotsor parcels in a subdivision would constitutegrounds for the denial of the issuance of a

public report the commissioner may orderthe person to desist and refrain from violating the provisions of ORS 92210 to 92390or of the regulations pertaining thereto orfrom the further sale or lease of lots or parcels within the subdivision1963 c624 22

92380 Enjoining violations of ORS92210 to 92390 appointment of receiver orconservator Whenever the commissioner

finds that any subdivider or other person isviolating or has violated or is about to violate any of the provisions of ORS 92210 to92390 he may request the Attorney Generalto bring proceedings in the circuit courtwithin the county in which the violation orthreatened violation has occurred or is aboutto occur or in the county where such personfirm or corporation resides or carries on business in the name of and on behalf of thepeople of the State of Oregon against suchperson firm or corporation and any otherperson or persons concerned in or in any wayparticipating or about to participate in suchviolation to enjoin such person firm or corporation or any other person from continuing such violation or engaging therein or doing any act or acts in furtherance thereofand to apply for the appointment of a receiver or conservator of the assets of the de

fendant where such appointment is appropriate1963 c624 23

92390 Disposition of receipts The moneys received under ORS 92210 to 92390 shall

be paid into the State Treasury and placedto the credit of the General Fund in theOregon Real Estate Department AccountSuch moneys hereby are appropriated continuously and shall be used only for the administration and enforcement of ORS 92210to 92390

1963 c624 24

Note The provisions of Chapter 580 Oregon Laws1963 establishing the Real Estate Division of the Department of Commerce are operative not later thanJuly 1 1964 and stand repealed on July 1 1967

92400 to 92980 Reserved for expansionCJ

SUPERSEDED

PLATS AND SUBDIVISIONS 929

PENALTIES

92990 Penalties 1 Violation of any

provision of ORS 92010 to 92150 or of anyregulation or ordinance adopted thereunderis punishable upon conviction by a fine ofnot less than 50 nor more than 500 orimprisonment in the county jail for not lessthan 25 days nor more than 50 days or both

2 Any person who violates any of the

provisions of subsection 1 of ORS 92230ORS 92240 to 92260 subsections 1 2and 3 of 92290 and ORS 92310 to 92350shall be punished by a fine not exceeding10000 or by imprisonment in the penitentiary for a period not exceeding three yearsor in the county jail not exceeding one yearor by both such fine and imprisonmentAmended by 1955 c756 20 subsection 2 enactedas 1963 c624 20


11


723

SUPERSEDED

lu

724

SUPERSEDED

Chapter 93


Conveyancing and Recording

1

GENERAL REQUIREMENTS FOR DISPOSITIONOF REALTY

93010 Conveyances how made93020 Creating transferring or declaring estates

or interests in realty

SPECIAL MATTERS IN PARTICULARCONVEYANCES

93110 Quitclaim deed sufficient to pass estate93120 Words of inheritance unnecessary to convey

fee conveyances deemed to convey allgrantors estate

93130 Conveyance of land in adverse possession ofanother

93140 No implied covenants93150 Conveyance by tenant of greater estate than

that possessed93160 Conveyance by reversioners and remainder

men to life tenant vests fee

93170 Conveyance by spouse of insane person93180 Tenancy in common when created joint

tenancy abolished93190 Trustees or executors as joint tenants fill

ing vacancies in office93200 Trustees or executors now hold as joint

tenants

93210 Presumption respecting deed from trusteeof undisclosed beneficiary

93220 Release limitation or restriction of powerof appointment

93230 Copy of State Land Board deed or patentgiven when original lost

93240 Rights of sellers to deferred or unpaid balance of purchase price where two or morepersons join as sellers in contract of saleof real property

UNIFORM VENDOR AND PURCHASERRISK ACT

93290 Risk of loss after contract to sell realty hasbeen executed

93295 Construction of ORS 93290 to 9330093300 Short title

DESCRIPTIONS INCLUDING THE OREGONCOORDINATE SYSTEM

93310 Rules for construing description of realro e

93320 Oregon Coordinate System zones93330 Definition93340 Use of terms in land description93350 Plane coordinates93360 Coordinates exempted from recordation93570 Description as supplemental conflict in de

scription93380 Purchaser or mortgagee not required to

rely on description

EXECUTION ACKNOWLEDGMENT ANDPROOF OF INSTRUMENTS

93410 Execution and acknowledgment of deeds93415 Acknowledgment by married woman

93420 Execution of deed where personal representative is unable or refuses to act

93430 Officer taking acknowledgment must knowgrantor

93440 Proof of execution by subscribing witness93450 Proof where witnesses are dead or absent93460 Subpena to compel witness to testify to exe

cution of deed93470 Indorsement of certificate of proof93480 Deed acknowledged or proved as evidence

recordabiltty93490 Form of acknowledgments93500 Execution and acknowledgment of deed In

other states

93510 Necessity for certificate acknowledging officers authority in another state

93520 Execution and acknowledgment of deeds inforeign countries

93530 Execution acknowledgment and recordationof assignments of sheriffs certificates ofsale

RECORDATION AND ITS EFFECTS

93610 Separate books for recording deeds andmortgages

93620 Time and place of receipt for record certification

93630 Index of records of deeds and mortgages93640 Unrecorded conveyance or assignment of

sheriffs certificate of sale void as tosubsequent purchaser

93650 Effect of record or certified transcript inevidence

93660 Effect of abstract of title as evidence93670 Power of attorney and executory contract

for sale or purchase of lands recordability effect as evidence revocation

93680 Patents decrees in equity and officialgrants recordability evidence

93690 Recording of instruments evidencing passage of title to land from United Statesto the State of Oregon

93710 Instruments creating certain interests inrealty effect of recording

93720 Certificates of foreclosure entry of record93730 Recordation of decrees in other counties93740 Notice of lis pendens contents recordation

effect discharge93750 Recordability of telegraphic copies of pow

ers of attorney and other acknowledgedinstruments

93760 Recwdebility of documents orders and decrees of the United States District Court

93170 Recordability of petitions orders and decrees under National Bankruptcy Act

VALIDATING AND CURATIVE ACTS

93810 Validating and curative Acts

PENALTIES

93990 Penalties

725

SUPERSEDED


CROSS

Cemetery lots conveyancing of Ch 97Conveyances between spouses 108090Cooperative corporation interests in realty effect of

merger or consolidation 62160Cooperative corporation realty conveyance of 62125

62165

Corporate interests in realty effect of merger orconsolidation 57480

Corporate realty conveyance of 57030County clerks duties of Ch 205Employes trusts 128520Escrows regulation 696505 to 696580Farm land specially taxed recordation 308385Fees for recording indexing and certifying copies

of instruments Ch 205Fraudulent conveyances Ch 95Fraudulent intent conveyance with as a crime

165220

Guardian conveying wards real property 126285126406 to 126495

Limited partnership realty conveyance of 69090Mining claims recordation and conveyancing

517090

Partnership realty conveyance of 68130 68220Presumption of conveyance by person under a duty

to convey 4136038Recorder of conveyances duties of Ch 205Recording or approval prior to sale or transfer of

subdivision lots 92016 92025Reforestation land or forest crop thereon notice to

tax collector State Forester and State Tax Commission required before transfer 321295 2

Restraining disposition of realty after commencement of suit for divorce or annulment 107090

Subdivided property controlling sales and leases of92210 to 92390

Subdivision plat donation or grant to public construction of 92150

Title obtained by county in tax foreclosure proceedings affecting 312214 to 312230

Trust deed foreclosure of 86710Trustee conveying property of missing person

127070Trusteesdeed

Interest conveyed to purchaser 86755Land acreage description 86705

Unit ownership deed for unit of property subject to91565 91605

Water rights transfer of Ch 54093010

Conveyance of land mortgaged to state as securityfor loan from Oregon War Veterans Fund necessity of purchaser covenanting to assumemortgage to validity of 407070

Unit ownership conveyance of unit of property subject to 91605

93020

Statute of frauds relating to realty agreements41580

93120

Registered land use of heirs and assigns 9413593180

Partition by tenants in common 105205Permanent separation of spouses changes tenancy

by entirety to tenancy in common 10728093410

Clerk of Supreme Court taking acknowledgments8120

County clerk taking acknowledgments 205110Execution of instrument defined 42020

Subdivisions conveyance of lots in 9231093610

Assignment of mortgage recordability 86080County clerks and recorders of conveyances duties

of Ch 205Declaration and floor plans for property subject to

unit ownership 91540Discharge of encumbrances on unit subject to unit

ownership 91570Discharge of mortgage of record 86090 to 86130

93640

Application to chattel mortgages 86330Mechanics lien as prior to unrecorded mortgage or

other encumbrance 87025Priority between judgment lien and unrecorded

conveyance 18370

93650

Effect of photocopy of public record 192050 192070Proof of public record of private writing 43340

93670

Filing power of attorney as to registered land94370

93690

State Land Boards instruments and copies recordability and effect as evidence 273555 273575

93710

Interpretation of 1963 amendments 1963 c416 293730

Docketing judgment in other counties 1832093740

Registered land filing notice of lis pendens affecting 94515

93810

Aliens property rights Const Art I 31Repeal of validating or curative statutes effect of

174070

Stability of title obtained by county in past andfuture tax foreclosures 312214

is

ru

726

SUPERSEDED

CONVEYANCING AND RECORDIN 93180

GENERAL REQUIREMENTS FORDISPOSITION OF REALTY

93010 Conveyances how made Conveyances of lands or of any estate or interest therein may be made by deed signed bythe person of lawful age from whom the estate or interest is intended to pass or byhis lawful agent or attorney and acknowledged or proved and recorded without anyother act or ceremony

93020 Creating transferring or declaring estates or interests in realty 1 No estate or interest in real property other thana lease for term not exceeding one year norany trust or power concerning such propertycan be created transferred or declared otherwise than by operation of law or by a conveyance or other instrument in writing subscribed by the party creating transferringor declaring it or by his lawful agent underwritten authority and executed with suchformalities as are required by law

2 This section does not affect the power of a testator in the disposition of his realproperty by a last will and testament norto prevent a trust from arising or being extinguished by implication or operation oflaw nor to affect the power of a court tocompel the specific performance of an agreement in relation to such property


SPECIAL MATTFM IN PARTICULARCONVEYANCES

93110 Quitclaim deed sufficient to passestate A deed of quitclaim and release ofthe form in common use is sufficient to passall the estate which the grantor could lawfully convey by a deed of bargain and sale

93120 Words of inheritance unneces

sary to convey fee conveyances deemed toconvey all grantorsestate The term heirsor other words of inheritance is not necessary to create or convey an estate in feesimple Any conveyance of real estate passesall the estate of the grantor unless the intent to pass a lesser estate appears by express terms or is necessarily implied in theterms of the grant

the lands were in the actual possession ofanother claiming adversely

93140 No implied covenants No covenant shall be implied in any conveyance ofreal estate whether it contains special covenants or not

93150 Conveyance by tenant of greaterestate than that possessed A conveyancemade by a tenant for life or years purporting to grant a greater estate than he possesses or could lawfully convey does notwork a forfeiture of his estate but passesto the grantee all the estate which the tenant could lawfully convey

93160 Conveyance by reversioners andremaindermen to life tenant vests feeWhere real property has been devised to aperson for life and in case of the death ofthe life tenant without leaving lawful issueborn alive and living at the time of hisdeath then to other heirs of the testatora conveyance to the life tenant from all reversioners or remaindermen and all issue ofthe life tenant as are in being of all theirinterest in the real property vests a feesimple estate in the life tenant

93170 Conveyance by spouse of insaneperson If a spouse is adjudged insane by acourt having jurisdiction and is committedto a public insane asylum during the continuance of such disability the other spousemay convey any real estate owned in his orher sole right and acquired after the otherspouse has been committed to the insane asylum in the same manner as though they hadnever been married Such conveyance conveys the title thereto free from all estateby the curtesy or in dower However insuch cases neither has the power to conveyany real estate held and owned jointly except by proper proceedings in the probatecourt after the appointment of a guardianfor the insane person Any deed executedunder this section shall be accompanied bythe certificate of the superintendent of theinsane asylum in which the person is detained to the effect that such person is under such disability

93180 Tenancy in common when created joint tenancy abolished Every conveyance or devise of lands or interest therein

93130 Conveyance of land in adverse made to two or more persons other thanpossession of another No grant or convey to executors and trustees as such creates aance of lands or interest therein is void for tenancy in common unless it is expresslythe reason that at the time of its execution declared in the conveyance or devise that

727

SUPERSEDED


the grantees or devisees take the lands asjoint tenants Joint tenancy is abolished andall persons having an undivided interest inreal property are to be deemed and considered tenants in common

93190 Trustees or executors as jointtenants filling vacancies in office 1 Every conveyance deed of trust mortgage ordevise of an interest or lien in or upon realor personal property to two or more personsas trustees or executors creates a joint tenancy in such interest or lien in the trusteesor executors unless it is expressly declaredin the conveyance deed of trust mortgageor devise that the trustees or executorsshall take or hold the property as tenantsin common or otherwise

2 If the conveyance deed of trustmortgage or devise provides for filling anyvacancy in the office of trustee or executorit may be filled as therein provided excepting that a court of competent jurisdictionmay fill a vacancy in the trusteeship according to the established rules and principles of equity In whichever way the vacancy is filled the new trustee shall holdthe property with all powers rights andduties of an original trustee unless otherwise directed by conveyance deed of trustmortgage or devise or order or decree ofthe court No vacancy in an executorshipshall be filled without an order therefor bya county court sitting in probate as in thecase of an original appointment of an executor

93200 Trustees or executors now holdas joint tenants All trustees or executorsholding real or personal property in truston May 19 1905 hold as joint tenants andnot as tenants in common unless the conveyance deed of trust mortgage or deviseor order or decree of court creating or appointing the trustees or executors has declared otherwise

93210 Presumption respecting d e e dfrom trustee of undisclosed beneficiary Ifa deed to real estate has been made to agrantee in trust or designating the granteeas trustee and no beneficiary is indicated ornamed in the deed a deed thereafter executed by such grantee conveying the property is presumed to have been executed withfull right and authority and conveys primafacie title to the property The grantee inthe lastmentioned deed is under no dutywhatsoever to see to the application of the

T

purchase price If the lastmentioned deed isrecorded after June 7 1937 after five yearsfrom its recording or if it was recordedprior to June 7 1937 then after June 71942 the presumption is conclusive as toany undisclosed beneficiary and the title tothe real estate based upon the lastmentioned deed shall not be called in questionby any one claiming as beneficiary underthe first mentioned deed

93220 Release limitation or restrietion of power of appointment 1 Any person to whom there has been granted orreserved any power of appointment or otherpower by which he may elect to take any action affecting the disposition of propertymay at any time release or from time totime limit or restrict such power in wholeor in part by an instrument in writing evidencing that purpose and subscribed byhim

2 If the power is one to affect titleto real property the instrument shall beexecuted acknowledged proved and recorded or filed with the registrar of title in eachcounty in which the land is situated in thesame manner as a conveyance of real property

3 If the power is of such nature thatits exercise may affect the duty of anytrustee or other fiduciary such trustee orother fiduciary is not bound to take noticethereof unless he has received the originalor an executed duplicate of the release or acopy thereof certified by the county clerkor county recorder of the county in whichit has been recorded

93230 Copy of State Land Board deedor patent given when original lost 1 Whereparties to whom deeds have been issued bythe State Land Board have lost such deedsbefore they have been placed on record inthe county wherein the land conveyed is located the clerk of the State Land Boardor other proper officer having the custodyof the records of the board on applicationof the party entitled thereto may issue acertified copy of the record of the deed inthe office of the board under its seal

2 Where parties to whom patents forlands have been issued by the United Statesfor lands in the State of Oregon have lostsuch patents before they have been placedon record in the county wherein the landconveyed is located such parties or theirsuccessors in interest may apply to andobtain from the General Land Office at

8

is

SUPERSEDED

CONVEYANCING AND RECORDING 93300

Washington D C copies of the records ofsuch patents duly certified to be correctcopies or exemplifications of the originalpatents or of the record thereof either bythe Commissioner of the General Land Office or by the Recorder of the General LandOffice

3 Every certified copy issued in accordance with subsection 1 or 2 of thissection is entitled to record in the propercounty with like effect as the original deedor patent Every such copy so certified maybe read in evidence in any court in this statewithout further proof thereof The recordof any such certified copy or a transcriptthereof certified by the county clerk inwhose office it may have been recordedmay be read in evidence in any court in thisstate with like effect as the original thereofor the original lost deed or patent

93240 Rights of sellers to deferred orunpaid balance of purchase price where twoor more persons join as sellers in contractof sale of real property 1 Subject to theprovisions contained in this section whenever two or more persons join as sellers inthe execution of a contract of sale of realproperty unless a contrary purpose is expressed in the contract the right to receivepayment of deferred instalments of the purchase price shall be owned by them in thesame proportions and with the same incidents as title to the real property was vested in them immediately preceding the execution of the contract of sale

2 If immediately preceding the execution of any such contract one or more of thesellers held no estate in the real propertycovered thereby other than an inchoate estate of or right to dower or curtesy thenunless a contrary purpose is expressed in thecontract the joinder of such party or partiesshall be deemed to have been for the purposeof barring dower or curtesy only and exceptto the extent specifically prescribed thereinsuch person or persons shall have no interestin or right to any portion of the unpaid balance of the purchase price of said real property

3 If immediately prior to the executionof a contract of sale of real property title toany interest in the property therein describedwas vested in the sellers or some of thesellers as tenants by the entirety or wasotherwise subject to any right of survivorship then unless a contrary purpose is expressed in the contract the right to receive

payment of deferred instalments of the purchase price of such property shall likewisebe subject to like rights of survivorship

4 This section being declaratory of existing law applies to contracts of sale of realproperty heretofore executed as well as tothose hereafter executed Nothing containedin this section shall be deemed to modify oramend the provisions of subsection 4 ofORS 118010 relating to inheritance taxespayable by reason of succession by survivorship as provided by subsection 3 of thissection

1957 c402 1 2


UNIFORM VENDOR AND PURCHASERRISK ACT

93290 Risk of loss after contract to sell

realty has been executed Any contract madeon or after August 3 1955 in this state forthe purchase and sale of realty shall be interpreted as including an agreement that theparties shall have the following rights andduties unless the contract expressly provides otherwise

1 If when neither the legal title nor thepossession of the subject matter of the contract has been transferred all or a materialpart thereof is destroyed without fault ofthe purchaser or is taken by eminent domainthe vendor cannot enforce the contract andthe purchaser is entitled to recover any portion of the price that he has paid

2 If when either the legal title or thepossession of the subject matter of the contract has been transferred all or any partthereof is destroyed without fault of thevendor or is taken by eminent domain thepurchaser is not thereby relieved from aduty to pay the price nor is he entitled torecover any portion thereof that he haspaid1955 c144 1

93295 Construction of ORS 93290 to93300 ORS 93290 to 93300 shall be so in

terpreted and construed as to effectuatetheir general purpose to make uniform thelaw of those states which enact the UniformVendor and Purchaser Risk Act1955 c144 2

93300 Short title ORS 93290 to 93300

may be cited as the Uniform Vendor andPurchaser Risk Act

291955 c144 3

SUPERSEDED


DESCRIPTIONS INCLUDING THEOREGON COORDINATE SYSTEM

93310 Rules for construing descriptionof real property The following are the rulesfor construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other sufficient circumstances to determine it

1 Where there are certain definite and

ascertained particulars in the descriptionthe addition of others which are indefiniteunknown or false does not frustrate theconveyance but it is to be construed by suchparticulars if they constitute a sufficientdescription to ascertain its application

2 When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement either oflines angles or surfaces the boundaries ormonuments are paramount

3 Between different measurementswhich are inconsistent with each other thatof angles is paramount to that of surfacesand that of lines paramount to both

4 When a road or stream of waternot navigable is the boundary the rightsof the grantor to the middle of the road orthe thread of the stream are included inthe conveyance except where the road orbed of the stream is held under anothertitle

5 When tide water is the boundarythe rights of the grantor to low water markare included in the conveyance and also theright of this state between high and lowwater mark

6 When the description refers to amap and that reference is inconsistent withother particulars it controls them if it appears that the parties acted with referenceto the map otherwise the map is subordinate to other definite and ascertained particulars

93320 Oregon Coordinate Systemzones 1 The system of plane coordinateswhich has been established by the UnitedStates Coast and Geodetic Survey for defining and stating the positions or locations of points on the surface of the earthwithin the State of Oregon is known anddesignated as the Oregon Coordinate System

2 For the purpose of the use of thissystem the state is divided into a northzone and a south zone

3 The area included in the followingcounties on June 16 1945 constitutes the

north zone Baker Benton Clackamas Clatsop Columbia Gilliam Grant Hood RiverJefferson Lincoln Linn Marion MorrowMultnomah Polk Sherman Tillamook Umatilla Union Wallowa Wasco WashingtonWheeler and Yamhill

4 The area included in the followingcounties on June 16 1945 constitutes thesouth zone Coos Crook Curry DeschutesDouglas Harney Jackson Josephine Klamath Lake Lane and Malheur

5 The use of the term Oregon Coordinate System on any map report of survey or other document is limited to coordinates based on the Oregon Coordinate System as defined in ORS 93330

93330 Definition 1 For more precisely defining the Oregon Coordinate Systemthe following definition by the UnitedStates Coast and Geodetic Survey is adopted

a The Oregon Coordinate Systemnorth zone is a Lambert conformal projection of the Clarke Spheroid of 1866 havingstandard parallels at north latitudes 44 degrees 20 minutes and 46 degrees 00 minutesalong which parallels the scale shall be exact The origin of coordinates is at the intersection of the meridian 120 degrees 30minutes west of Greenwich and the parallel43 degrees 40 minutes north latitude Thisorigin is given the coordinates x 2000000 feet and y 0 feet

b T h e Oregon Coordinate Systemsouth zone is a Lambert conformal projection of the Clarke Spheroid of 1866 havingstandard parallels at north latitudes 42 degrees 20 minutes and 44 degrees 00 minutesalong which parallels the scale shall be exact The origin of coordinates is at the intersection of the meridian 120 degrees 30minutes west of Greenwich and the parallel41 degrees 40 minutes north latitude Thisorigin is given the coordinates x 2000000 feet and y 0 feet

2 The position of the Oregon Coordinate System shall be as marked on theground by triangulation or traverse stationsestablished in conformity with the standards adopted by the United States Coastand Geodetic Survey for firstorder and secondorder work whose geodetic positionshave been rigidly adjusted on the NorthAmerican datum of 1927 and whose coordinates have been computed on the systemdefined in this section Any such station

30may be used for establishing a survey con

SUPERSEDED

CONVEYANCING AND RECORDING

nection with the Oregon Coordinate System

93340 Use of terms in land description 1 As established for use in the northzone the Oregon Coordinate System shallbe named and in any land description inwhich it is used it shall be designated theOregon Coordinate System north zone

2 As established for use in the southzone the Oregon Coordinate System shallbe named and in any land description inwhich it is used it shall be designated theOregon Coordinate System south zone

3 When any tract of land to be defined by a single description extends fromone into the other of the coordinate zones

mentioned in ORS 93320 the positions ofall points on its boundaries may be referredto either of those zones the zone which isused being specifically named in the description

93350 Plane coordinates The planecoordinates of a point on the earths surface used in expressing the position or location of such point in the appropriate zoneof the Oregon Coordinate System shall consist of two distances expressed in feet anddecimals of a foot One of these distancesto be known as the xcoordinate shall givethe position in an east and west directionthe other to be known as the ycoordinate shall give the position in a north andsouth direction These coordinates shall bemade to depend upon and conform to thecoordinates on the Oregon Coordinate System of the triangulation and traverse stations of the United States Coast and Geodetic Survey within the State of Oregon asthose coordinates have been determined bythat Survey

93360 Coordinates exempted from recordation No coordinates based on the Ore

gon Coordinate System purporting to definethe position of a point on a land boundaryshall be presented to be recorded in anypublic land records or deed records unlessthat point is within onehalf mile of a triangulation or traverse station established inconformity with the standards prescribed inORS 93330 However the onehalf mile limitation may be modified by an authorizedstate agency to meet local conditions

93430

to describe any tract of land which in thesame document is also described by reference to any subdivision line or corner ofthe United States public land surveys thedescription by coordinates is construed assupplemental to the basic description of thatsubdivision line or corner contained in theofficial plats and field notes filed of recordIn the event of any conflict the descriptionby reference to the subdivision line or corner of the United States public land surveysprevails over the description by coordinates

93380 Purchaser or mortgagee not required to rely on description Nothing contained in ORS 93320 to 93370 requires anypurchaser or mortgagee to rely on a description any part of which depends exclusivelyupon the Oregon Coordinate System


EXECUTION ACKNOWLEDGMENT ANDPROOF OF INSTRUMENTS

93410 Execution and acknowledgmentof deeds Deeds executed within this stateof lands or any interest in lands thereinshall be signed by the grantors and may beacknowledged before any judge of the Supreme Court circuit judge county judgejustice of the peace or notary public withinthe state The officer taking the acknowledgment shall indorse thereon under his handa certificate of the acknowledgment thereofand the date of making it

93415 Acknowledgment by marriedwoman All acknowledgments of marriedwomen to conveyances of real property inthis state shall be taken in the same manneras if they were unmarried

93420 Execution of deed where personal representative is unable or refuses toact If any person is entitled to a deed froman executor administrator guardian or conservator who has died or resigned has beendischarged disqualified or removed or refuses to execute it the deed may be executed by the judge authorizing the sale orby his successorAmended by 1961c344 104

93430 Officer taking acknowledgmentmust know grantor No acknowledgment ofany executed conveyance shall be taken byany officer unless he knows or has satisfactory evidence that the person making the

93370 Description as supplementalconflict in description If coordinates basedon the Oregon Coordinate System are used

731

SUPERSEDED


acknowledgment is the individual describedin and who executed the conveyance

93440 Proof of execution by subscribing witness Proof of the execution of anyconveyance may be made before any officerauthorized to take acknowledgments of

deeds and shall be made by a subscribingwitness thereto who shall state his ownplace of residence and that he knew theperson described in and who executed theconveyance Such proof shall not be takenunless the officer is personally acquaintedwith the subscribing witness or has satisfactory evidence that he is the same personwho was a subscribing witness to the instrument

93450 Proof where witnesses are dead

or absent When any grantor is dead out ofthis state or refuses to acknowledge hisdeed and all the subscribing witnesses tothe deed are also dead or reside out of thisstate it may be proved before the circuitcourt or any judge thereof by proving thehandwriting of the grantor and of any subscribing witness thereto

93460 Subpena to compel witness totestify to execution of deed Upon the application of any grantee or any person claiming under him verified by the oath of theapplicant setting forth that the grantor isdead out of the state or refuses to acknowledge his deed and that any witness tothe conveyance residing in the county wherethe application is made refuses to appearand testify touching its execution and thatthe conveyance cannot be proven withouthis evidence any officer authorized to takethe acknowledgment or proof of conveyances except a commissioner of deeds mayissue a subpena requiring the witness toappear and testify before him touching theexecution of the conveyance

93470 Indorsement of certificate of

proof Every officer who takes the proof ofany conveyance shall indorse a certificatethereof signed by himself on the conveyance In the certificate he shall set forth

those matters required by ORS 93440 to93460 to be done known or proved together with the names of the witnesses

examined before the officer and their placeof residence and the substance of the evidence given by them

93480 Deed acknowledged or proved asevidence recordability Every conveyanceacknowledged proved or certified in themanner prescribed by law by any of theauthorized officers may be read in evidencewithout further proof thereof and is entitled to be recorded in the county wherethe land is situated

93490 Form of aclmowledgments Certificates of acknowledgment need not be inany particular form A certificate substantially in the following form is sufficient

1 By individ

State of Oregon County of ss

A D 19

Personally appeared the abovenamedand acknowledged

the foregoing instrument to bevoluntary act and deed Before me

Official SealSignatur Title of Officer

2 By a corporation


A D 19

Personally appearedwho being duly sworn or affirmed didsay that he is the president or other officer of

naming the corporation and that the sealaffixed to the foregoing instrument is thecorporate seal of said corporation and thatsaid instrument was signed and sealed inbehalf of said corporation by authority ofits board of directors and he acknowledgedsaid instrument to be its voluntary act anddeed Before me

Official SealSignature Title of Officer

3 By an attorney in fact


A D 19

Personally appearedwho being duly sworn or affirmed did saythat he is the attorney in fact forand that he executed the foregoing instrument by authority of and in behalf of saidprincipal and he acknowledged said instrument to be the act and deed of said principal Before me

Official SealSignature Title of Officer

s 93500 Execution and acknowledgmentof deed in other states If any deed is executed in any other state territory or district

732

SUPERSEDED

O

0

CONVEYANCING ANDRECORDING 93640

of the United States it may be executedaccording to the laws of that place or of theState of Oregon The execution may be acknowledged either according to the laws ofsuch other place or the State of Oregonbefore any judge of a court of record justiceof peace notary public or other officer authorized by the laws of the state territoryor district to take acknowledgment of deedstherein or before any commissioner appointed by the Governor of this state for thatpurpose

93510 Necessity for certificate acknowledging officers authority in anotherstate In the cases provided for in ORS93500 unless the acknowledgment is takenbefore a commissioner appointed by theGovernor of this state for that purpose orbefore a notary public certified under hisnotarial seal or before the clerk of a courtof record certified under the seal of thecourt the deed shall have attached theretoa certificate of the clerk or other propercertifying officer of a court of record of thecounty or district within which the acknowledgment was taken under the seal of hisoffice that the person whose name is subscribed to the certificate of acknowledgmentwas at the date thereof such officer as heis therein represented to be that he believesthe signature of such person subscribedthereto to be genuine and that the deed isexecuted and acknowledged according to thelaws of such state territory or district

93520 Execution and acknowledgmentof deeds in foreign countries If a deed isexecuted in any foreign country it may beexecuted according to the laws of thatcountry or of the State of Oregon Its execution may be acknowledged either according to the laws of the foreign country or ofthe State of Oregon before any notary public therein or before any minister plenipotentiary minister extraordinary ministerresident charge daffaires commissionerconsul vice consul or consul general of theUnited States appointed to reside thereinThe acknowledgment shall be certified thereon by the officer taking it under his handand if taken before a notary public his seaof office shall be affixed to the certificateIt is not necessary for any of such personsto state in the certificate that the deed oinstrument is executed according to thlaws of such country

93530 Execution acknowledgment andrecordation of assignments of sheriffs certificates of sale All assignments of sheriffscertificates of sale of real property on execution or mortgage foreclosure shall be executed and acknowledged and recorded in thesame manner as deeds of real property


RECORDATION AND ITS EFFECTS

93610 Separate books for recordingdeeds and mortgages Separate books shallbe provided by the county clerk in eachcounty for the recording of deeds and mortgages In one book all deeds left with theclerk shall be recorded at full length withthe certificates of acknowledgment or proofof their execution and in the other all mortgages left with the county clerk shall in likemanner be recorded

93620 Time and place of receipt forrecord certification The county clerk shallcertify upon every conveyance recorded byhim the time when it was received and areference to the book and page where it isrecorded Every conveyance is consideredrecorded at the time it was so received

93630 Index of records of deeds and

mortgages The county clerk shall also keepa proper index direct and inverted to thebooks for the recording of deeds and alsoone to the books for the recording of mortgages in which he shall enter alphabetically the name of every party to eachinstrument recorded by him with a reference to the book and page where it is recorded

93640 Unrecorded conveyance or assignment of sheriffs certificate of sale voidas to subsequent purchaser 1 Every conveyance affecting the title of real propertywithin this state which is not recorded asprovided by law is void as against any subsequent purchaser of the same real property or any portion thereof in good faithand for a valuable consideration whose conveyance is first filed for record and asagainst the heirs and assigns of such pur

l chaser

2 Every assignment of sheriffs certificates of sale of real property on execution or mortgage foreclosure which is not

r recorded in the records of deeds in thee county where the land is situated within

five days after its execution is void as733

SUPERSEDED


against any subsequent purchaser of suchcertificate of sale or the real property covered thereby or any portion thereof in goodfaith and for a valuable consideration whoseassignment is first recorded

93650 Effect of record or certified

transcript in evidence The record of a conveyance duly recorded or a transcript thereof certified by the county clerk in whoseoffice it is recorded may be read in evidencein any court in the state with the like effectas the original conveyance However theeffect of such evidence may be rebutted byother competent testimony

93660 Effect of abstract of title as

evidence Any abstract of title to real property in this state certified by any personregularly engaged in this state in the business of preparing and certifying such abstracts shall be received in all courts as

prima facie evidence of the existence condition and nature of the record of all deedsmortgages and other instruments conveyances or liens shown or mentioned in the

abstract as affecting the property and thatthe record is as described in such abstract

93670 Power of attorney and execatory contract for sale or purchase of landsrecordability effect as evidence revocation1 Every letter of attorney or other instrument containing a power to convey landsas agent or attorney for the owner of suchlands and every executory contract for thesale or purchase of lands when acknowledged or proved in the manner prescribedfor the acknowledgment or proof of conveyances may be recorded in the county clerksoffice of any county in which the lands towhich such power or contract relates issituated When so acknowledged or provedsuch letter instrument or contract and therecord thereof when recorded or the certified transcript of such record may be readin evidence in any court in this state withoutfurther proof of the same

2 No letter of attorney or other instrument so recorded is deemed to be revoked by any act of the party by whom itwas executed unless the instrument contain

ing such revocation is also recorded in thesame office in which the instrument con

taining the power was recorded

93680 Patents decrees in equity andofficial grants recordability evidence 1The following are entitled to be recorded in

the record of deeds of the county in whichthe lands lie in like manner and with likeeffect as conveyances of land duly acknowledged proved or certified

a The Patents from the United Statesor of this state for lands within this state

b Decrees of courts of equity in thisstate requiring the execution of a conveyance of real estate within this state

c Approved lists of lands granted tothis state or to corporations in this state

d Conveyances executed by any officer of this state by authority of law of landswithin this state

2 The record of any such patent decree approved lists or deeds recorded or atranscript thereof certified by the countyclerk in whose office it is recorded may beread in evidence in any court in this statewith like effect as the original

93690 Recording of instruments evidencing passage of title to land from UnitedStates to the State of Oregon 1 The clerkof the State Land Board shall forward allpatents and clear lists of land and otherdocuments evidencing that title to land haspassed from the United States to the Stateof Oregon which have been or shall bereceived by the State of Oregon to the officer in each county of the state in which anyof such land is situated whose duty it is torecord conveyances of real estate Upon thereceipt of such patents clear lists or otherdocuments the recording officer of thecounty shall without charging or collectingany fee therefor forthwith record the

instruments in the records of deeds of the

county and index them in the manner provided for indexing deeds When the recording officer has properly recorded suchinstruments he shall return them to theclerk of the State Land Board

2 When any such instrument includesland in more than one county the record ofthe instrument in each county need includeonly the description of the land lying whollyor partly in that county and all other landmay be indicated as omitted


93710 Instruments creating certain interests in realty effect of recording Anyinstrument creating a license easementprofit a prendre or a leasehold interest oroil gas or other mineral interest or estate inreal property which is executed by the person from whom the interest is intended to

is

C734

SUPERSEDED

r

O

C7

CONVEYANCING AND RECORDING

pass and acknowledged or proved in themanner provided for the acknowledgment orproof of other conveyances may be indexedand recorded in the records of deeds of real

property in the county where such real property is located Such recordation whetherthe instrument be recorded prior to or subsequent to May 29 1963 constitutes noticeto third persons of the rights of the partiesunder the instrument irrespective of whetherthe party granted such interest or estate isin possession of the real property Any suchinterest when so acknowledged or proved orcertified in the manner prescribed by law byany of the authorized officers may be readin evidence without further proof thereofAmended by 1963 c416 1

93720 Certificates of foreclosureentry of record 1 Whenever a decree foreclosing a mortgage on real estate is returnedin the circuit court of any county the clerkof the court in counties where there is arecorder shall make out a certificate statingthat such mortgage has been foreclosed thedate of foreclosure and the number of the

journal and page thereof in which such decree is entered The clerk shall deliver the

certificate to the recorder who shall enterupon the margin of the record of such mortgage the word foreclosed and the date offoreclosure with the number and page of thejournal of the decree

2 In counties where the county clerkacts as recorder of conveyances he shallupon the entry of any decree foreclosing amortgage on real estate make on themargin of the record of such mortgage therecord provided for in subsection 1 ofthis section 93760 Recordability of documents

93730 Recordation of decrees in other

counties A certified copy of any judgmentdecree or order of confirmation affectinglands in this state made in any suit may berecorded in the records of deeds in anycounty in which the land affected is whollyor partly situated by any party interested inthe land or suit After the transcript is sorecorded the decree is notice to all personsof such suit and the judgment order ordecree as completely as if the entire proceedings were had originally in the countyin which the transcript is recorded Therecord of the transcript is prima facie evidence of title as therein determined

93760

in which the title to or any interest in orlien upon real property is involved affectedor brought in question any party thereto atthe commencement of the suit or at anytime during the pendency thereof may fileof record with the county clerk or otherrecorder of deeds of every county in whichany part of the premises lies except in thecounty in which the suit is brought a noticeof the pendency of the action containing thenames of the parties the object of the suitand the description of the real property inthe county involved affected or brought inquestion signed by the party or his attorney From the time of filing the notice andfrom that time only the pendency of thesuit is notice to purchasers and incumbrancers of the rights and equities in the premises of the party filing the notice The noticeshall be recorded in the same book and in

the same manner in which mortgages arerecorded and may be discharged in likemanner as mortgages are discharged eitherby such party or the attorney signing thenotice

93750 Recordability of telegraphiccopies of powers of attorney and other aclmowledged instruments Any power of attorney or other instrument in writingproved or acknowledged and certified so asto be entitled to record may together withthe certificate or proof or acknowledgmentbe sent by telegraph The telegraphic copy asdefined in ORS 758090 shall prima facie havethe same effect in all respects and may beadmitted to record and be recorded in thesame manner and with like effect as the

original

d4 and decrees of the United States Dis

trict Court 1 Copies of documents ordersand decrees in proceedings in the DistrictCourt of the United States for the District of

Oregon which have been certified by theclerk of such court and which affect titleto real property in this state shall be entitled to be recorded in the deed records of

any county in which such real property islocated

2 Whenever any person presents tothe recorder of conveyances or county clerkacting as such a certificate from the clerkof the United States District Court of the

foreclosure of any mortgage on real estatethe recorder shall make the record required

93740 Notice of Us pendens contents by subsection 1 of ORS 93720 providedrecordation effect discharge In all suits in such section

735

SUPERSEDED


93770 Recordability of petitions orders and decrees under National BankruptcyAct Copies of any petition with the schedules omitted and copies of orders and decrees filed or made and entered in any proceeding under the National BankruptcyAct which have been certified by the clerkof the United States District Court for the

District of Oregon shall be entitled to berecorded in the deed records of any countywhere the bankrupt owns or has an interestin real property


VALIDATING AND CURATIVE ACTS

93810 Validating and curative ActsThe following are subjects of validating orcurative Acts applicable to this chapter

1 Evidentiary effect and recordationof conveyances before 1854

2 Evidentiary effect and recordationof certified copies of deeds issued by StateLand Board prior to 1885 where originaldeed was lost

3 Defective acknowledgments of married women to conveyances prior to 1891

4 Foreign instruments executed priorto 1903

5 Deeds of married women before1907 validity executed under power of attorney and record as evidence

6 Conveyances by reversioners andremaindermen to life tenant

7 Decrees affecting lands in more thanone county

8 Irregular deeds and conveyancesdefective acknowledgments irregularities injudicial sales sales and deeds of executorsadministrators and guardians vested rightsarising by adverse title recordation

9 Defective acknowledgments10 Title to lands from or through

aliens

Subsection 1 enacted as 1854 D p 653 36 subsection 2 enacted as 1885 p 78 3 subsection 3enacted as 1891 p 152 2 subsection 4 enacted as1903 p17 2 subsection 5 enacted as 1907 c170 5subsection 6 enacted as 1915 c247 1 subsection7 enacted as 1917 c329 subsection 8 enacted as1943 c26 subsection 9 enacted as 1945 c380 5amended by 1947 c579 l subsection 10 enactedas 1949 c350 2


PENALTIES

93990 Penalties Any person servedwith the subpena mentioned in ORS 93460who without reasonable cause refuses orneglects to appear or appearing refuses toanswer upon oath touching the mattermentioned in ORS 93460 shall forfeit to the

injured party 100 He may also be committed to prison as for a contempt by theofficer who issued the subpena until he submits to answer on oath as aforesaid



736

11

SUPERSEDED


Registration of Titles Torrens Law

APPLICATION EXAMINATION NOTICE AND TRANSFER AND ENCUMBRANCE OFPLEADINGS REGISTERED LAND

94005 Who may apply to register land 94305 Forma of conveyances and encumbrances94010 Fee must be registered first 94310 Interests transferable by conveyance pro94015 Notation of lesser estate or encumbrance cedure of transfer

84020 Registration of tax title prerequisites 94315 Retention of land or Interest in land

84025 Contents of application 94320 Effective date of registration of transfer or94030 Statutory form transaction

94035 Inclusion of two or more parcels in one ap 94325 Statements in certificate as to marital sta

lication tus of transferee

94040 Amendment of application 94330 Registration of transfer or mortgage when94045 Plat and certificate necessary interests are outstanding94050 Power to determine title in circuit court 94335 Filing of instrument affecting registered

court always open land noting of day and hour effect as94055 Docketing of application defendants notice

94060 Numbering of applications 84340 Indorsement of name and address on instra

94065 Title examiner investigation and report by ments to be registered notices served at94070 Examinersreport not conclusive address given change of address94075 Service of notice time for appearance 94345 Effect of execution of instrument dealing84080 Form of notice with registered land effect of registra94085 Publication of notice tion

94090 Mailing of notice 94350 Procedure for placing charge on land94095 Answer and cross application 94355 Procedure when charge is assigned94100 Effect of failure to appear or answer 94360 Release or surrender of charge

94365 Enforcement of charge Us pendens noticeDECREE AND ISSUANCE OF CERTIFICATE 94370 Filing of evidence of authority of court

94105 Decree of court appointed officer or attorney in fact to

94110 Conclusiveness of decree appeal reopening 94375deal with registered land

Power of court appointed officer to dealof case with land8411594120

Statute of limitationsPresentation of claims existing but not 94380 Creation of trust condition or limitation af

actionable at date of registration 94385fisting registered land

Registration of transfer charge o land94125 Issuance of first certificate form subject to a trust condition or limita94130 Form of subsequent certificates

teffect

94135 Words of inheritance not necessary for fee94390 Creaation of statutory lien on registered land94140

94145

Data included in certificateIssuance of certificates to tenants in com 94395 Assertion of claim or lien in registrars

monoffice

94150 Entry of certificates on register memorials DEVOLUTION OF REGISTERED LANDand notations

94155 Owners duplicate certificate 94405 Devolution and distribution of registered94160 Evidence of owners handwriting land on death94165 Effective date of certificate 94410 Filing of letters by personal representative94170 Evidentiary effect of certificate or copy entry of memorial94175 Issuance of single certificate In place of 94415 Representativespower to deal with land

several and vice versa 94420 Procedure when devise to executor94180 Procedure when duplicate certificate is lost 94425 Exercise by executor of power given by will

or destroyed to deal with land

94430 Necessity and effect of filing proof of heirEFFECT OF REGISTRATION WITHDRAWAL ship

94205 Registration subjects land to this chapter 94435 Sale of registered land by order of probate94210 Status of ownersestate or Interest court

94215 Right of person claiming under registered 94440 Partial distributionowner 94445 Final distribution

94220 Effect of adverse possession94225 Certificate as proof of title in action or suit LIEN OR TRANSFER BY TAX SALE OR BY

94230 Application for withdrawal from registryJUDICIAL PROCEEDINGS

system 94505 Procedure for registration of certificate of94235 Issuance of certificate of withdrawal sale for tax or assessment

84240 Status of land after withdrawal 94510 Effect of tax deed

84245 Effect of withdrawal on proceedings under 94515 Necessity of filing lis pendens notice ofregistry system action or suit affecting land

737

SUPERSEDED

CH 94 CROS REFERENCES

94520 When judgment or decree is binding on theland

94525 When levy of process creates Hen on land94530 Procedure when land is sold on execution or

by decree redemption94535 Transfer of title following judicial sale94540 Cancellation of memorial involving suit

judgment or levy

FEES INDEMNITY FUND

94605 Fees of clerk of court94610 Registrarsand examinersfees94615 Payments for purpose of indemnity fund94620 Creation of indemnity fund investment

REMEDIES OF INJURED PERSONS

94705 Equitable relief for aggrieved person94710 Noting of order or decree giving equitable

relief

94715 Injured persons action for damages fromindemnity fund

94720 Defendants in action for damages secondary liability of indemnity fund defenseby district attorney

94725 Statute of limitations disabilities

94730 Criminal proceedings as affecting remedyby injured person

POWERS AND DUTIES OF REGISTRARS

94805 Registrars and deputies laws governingtheir rights powers and duties

94810 Powers and duties of deputies94815 Registrar not to practice law94820 Liability of registrar for neglect of deputy

or examiner

94825 Handling of memorials and notations94830 Custody of papers filed94835 Registration of instrument executed in du

plicate or multiplicate94840 Issuance of certified copies of instruments94845 Tract indices94850 Alphabetical indices

CONSTRUCTION OFCHAPTER

94855 Construction of chapter

PENALTIES

94990 Penalties for forgery and fraud in registration

CROSS REFERENCES

Escrows regulation 696505 to 696580Stability of title obtained by county in past and fu

ture tax foreclosures 312214

94085

Newspaper defined 193010Publication of summons 15120

94135

Words needed to convey a fee 9312094160

Officers authorized to tape acknowledgments ofdeeds 93410

94210

Writing required for leases 93020

94220

Title acquired by adverse possession 1205094365

Foreclosure of liens generally Ch 8894515

Notice of lis pendens 93740

94610Recording fees 205320

94805Compensation powers and duties of recorders of

conveyances Ch 204 Ch 20594810

Deputy recorders 204630

0738

SUPERSEDED

REGISTRATION OF TITLES TORRENS LAW 94030

r

APPLICATION EXAMINATION NOTICEAND PLEADINGS

94005 Who may apply to registerland The owner of any estate or interest inland whether legal or equitable may applyas provided in this chapter to have his titleregistered He may apply in person or by anattorney in fact authorized so to do A corporation may apply by its authorized agentan infant by his natural or legal guardianand any other person under disability by hislegal guardian The person in whose behalfthe application is made shall be named asapplicant

94010 Fee must be registered first Nomortgage lien charge or lesser estate thana fee simple shall be registered unless thefee simple to the same land is first registered

94015 Notation of lesser estate or en

cumbrance It shall not be an objection toregistering land under this chapter that theestate or interest of the applicant is subjectto any outstanding lesser estate mortgagelien or charge but every such lesser estatemortgage lien or charge shall be noted uponthe certificate of title and the duplicatethereof and the title or interest certifiedshall be subject only to the estates mortgages liens and charges so noted except asprovided in this chapter

94020 Registration of tax title prerequisites No title derived through sale forany tax or assessment shall be entitled tobe first registered unless it is made toappear that the applicant or those throughwhom he claims title has been in the actualand undisputed possession of the land undersuch title at least 10 years and has paid alltaxes and assessments legally levied thereonfor seven successive years of that time

94025 Contents of application The application shall be in writing signed andsworn to by the applicant or the personacting in his behalf It shall set forth substantially

1 The name and place of residence ofthe applicant and if the application is byone acting in behalf of another the nameand place of residence and capacity of theperson so acting

2 Whether the applicant except in thecase of a corporation is married or not andif married the name and residence of thehusband or wife

3 The description of the land4 The applicants estate or interest in

the land and whether the land is subject toan estate of homestead

5 Whether the land is occupied or unoccupied and if occupied by any person otherthan the applicant the name and postofficeaddress of each occupant and what estateor interest he has or claims in the land

6 Whether the land is subject to anyHen or encumbrance and if so the natureand amount of the lien or encumbrance withthe book and page of record if recorded alsothe name and postoffice address of eachholder thereof

7 Whether any other person has anyestate or claims any interest in the land inlaw or equity in possession remainder reversion or expectancy and if so the nameand postoffice address of every such personand the nature of his estate or claim

8 In case it is desired to settle or establish boundary lines the names and postoffice addresses of all the owners of adjoining lands that may be affected thereby sofar as the applicant is able upon diligentinquiry to ascertain

9 If the applicant is a male that he isof the full age of 21 years if a female thatshe is of the full age of 18 years If theapplication is on behalf of a minor the ageof the minor shall be stated If the application is by a husband or wife the othershall by indorsement thereon acknowledgedas in the case of deeds or by a separateinstrument acknowledged in the same waysignify his or her assent to the registrationas prayed

10 When the place of residence of anyperson whose residence is required to begiven is unknown it may be so stated ifthe applicant also states that upon diligentinquiry he has been unable to ascertain thesame

94030 Statutory form The form of theapplication may be with appropriatechanges as follows

Form of Application for Initial Registration of Title to Land

To the Circuit Court of the State of Oregonfor CountyState of Oregon

ss

County ofI hereby make application to have regis

tered the title to the land hereinafter described and do solemnly swear that theanswers to the questions herewith and the

39

SUPERSEDED


statements herein contained are true to thebest of my knowledge and belief

1 Name of applicantage years Residence Marriedto whose residence is

2 Application made byacting as owner agent attorney or guardian Residence of agent attorney or guardian

3 Description of real estate is as follows Estate or interest therein is

and is or is not subject to homestead

4 The land is not occupied or is occupied by whose address is

The estate interest or claim of occupant is

5 Liens and encumbrances on the landare Name of holder or owner thereof

Postoffice address

Amount of claim Recorded bookpage

6 Other persons having or claimingany estate interest or claim in law orequity in possession remainder reversionor expectancy in said land are Name

Address Character of estateinterest or claim

7 Other facts connected with said landare

8 The applicant prays the court to findand declare his title or interest in said landand decree the same and order the registrar of titles to register the same and togrant such other and further relief as shallbe accorded to equity

ApplicantssignatureBy agent attorney or guardian

Subscribed and sworn to before me bythe above named as owner

agent attorney or guardian this dayof A D 19

scribed to the foregoing assent appeared before me this day in person and acknowledgedthe said assent as his or her free and voluntary act for the uses and purposes therein set forth

Given under my hand and seal thisday of A D 19

94035 Inclusion of two or more parceLsin one application Any number of contiguous pieces of land in the same county andowned by the same person and in the sameright or any number of pieces of land in thesame county having the same chain of titleand belonging to the same person may beincluded in one application

94040 Amendment of application Theapplication may be amended only by supplemental statement in writing signed andsworn to as in the case of the original

94045 Plat and certificate necessaryWhere the land sought to be registered isnot in an addition or subdivision of whichthere is a plat recorded or adopted byauthority in the county where the land liesor subdivision according to the UnitedStates survey the application shall be accompanied by a plat made by a surveyorwho shall add thereto his certificate dulyverified that he has surveyed the land andthat the plat and the distances and anglesmarked thereon are a true representation ofsuch survey and of the land so surveyedThe plat and certificate shall be on tracingcloth not to exceed 12 by 18 inches in sizeThe survey shall be begun from a definiteand ascertained monument recognized bythe government surveys when practicableotherwise from a monument which can belocated by any competent surveyor

94050 Power to determine title in cir

cuit court court always open 1 The appliI hereby assent to the registration of the cation for registration may be made to the

above described real estate as prayed for circuit court in the county where the landb is situated and such court shall have powerwife who is my husband or

to inquire into the condition of the title toand any interest in the land and any lien or

Signature of husband or wife encumbrance thereon and to make all suchorders judgments and decrees as may beState of Oregon

SS necessaryCounty of j a To determine establish and declare

I a in and for said the title or interest legal or equitable ascounty in the state aforesaid do hereby cer against all persons known or unknowntify that personally known to me to b To determine establish and declarebe the same person whose name is sub all liens and encumbrances existing thereon

740

is

SUPERSEDED

REGISTRATION OF TITLES TORRENS IAW 94080

whether created by law contract judgmentmortgage trust deed or otherwise and todeclare the order and preferences as betweenthe same

c To remove clouds from the title2 For the purposes of this section the

court shall always be open and orders judgments and decrees authorized by this section may be made and entered as well in vacation as in term time

94055 Docketing of application de

fendants 1 Upon the filing of the application in the office of the clerk of the courtthe clerk shall docket the same in a book tobe kept for that purpose which shall beknown as the land registration docket Theapplication and all entries and proceedingspertaining thereto may be entitled as follows In the matter of the application ofname of applicant to register the title tohere insert short description of the land

2 If any person is named as being inpossession of the premises or having anylien or encumbrance upon the land or ashaving or claiming any interest in the landsuch person shall be named as defendantAll other persons shall be made and deemedto be defendants by the name or designationof all whom it may concern

94060 Numbering of applications Allapplications for initial registration of titleshall be numbered consecutively beginningwith number one in the land registrationdocket All orders judgments and decreesof the court in each case shall be minutedin such docket under the number so given itwith proper reference to the book and pagewhere the order or decree is recorded

94065 Title examiner investigation andreport by Immediately upon the filing ofthe application an order may be entered referring the same to an examiner of titleswho shall be appointed by the court andwho shall proceed to examine the title andthe truth of the matter set forth in the application particularly whether the land isoccupied the nature of the occupation ifoccupied and by what right He shall reportin writing to the court the substance of theproof and his conclusions He shall havepower to administer oaths and examine witnesses and may at any time apply to thecourt for directions in any matter concerning his investigation He shall not be required to report the evidence submitted tohim except upon the request of some party

74

to the proceeding or by direction of thecourt No report shall be made upon theapplication until after the expiration of thetime specified for the appearance of the defendants in the notice provided in ORS94075 to 94090 and in case of such appearance until opportunity is given to the defendant to contest the rights of the applicant in a manner allowed by the court

94070 Examiners report not conclusive The court shall in no case be bound bythe report of the examiner of title but mayrequire other or further proof

94075 Service of notice time for appearance The notice provided for in ORS94080 shall be forthwith served upon eachdefendant named in the application whoseresidence is shown to be in the State of Oregon in the same manner provided for serviceof summons in ORS 15080 If such defendant is served in the county where the proceeding is pending but is not served 10 daysbefore the time stated in the notice as thetime within which he shall appear then heshall have 10 days after service to appearIf he is served in the state but outside ofsaid county he shall have in any event 20days after service to make an appearanceAs to all unnamed defendants defendantsnamed but whose residence is unknown anddefendants named but whose residence isoutside the State of Oregon the provisionsmade for the publication and mailing of thenotice in ORS 94085 and ORS 94090 shall bedeemed full and complete service of the notice upon all such defendants and shall givethe court full and complete jurisdiction ofeach and all of said defendants for the purposes of the proceeding

94080 Form of notice The notice provided for in ORS 94075 may be substantiallyas follows

REGISTRATION OF LAND TITLE

In the matter of the application ofto register the title to here insert de

scription of land as in the application andin case any person is named as defendantthe name of such defendant All to whomit may concern

TAKE NOTICE

That on the day of 19 an

application was filed by in the

circuit court of county for initial registration of the title of the land above described

Now unless you appear on or before theday of 19 the time shall not

SUPERSEDED


be less than 30 days after the filing of suchapplication and show cause why application shall not be granted the same will betaken as confessed and a decree will be entered according to the prayer of the application and you will be forever barred fromdisputing the same

94085 Publication of notice The clerk

of the circuit court shall immediately uponthe filing of the application cause notice ofthe filing thereof in the form prescribed inORS 94080 to be published once a weekfor four successive weeks in a newspaperpublished and of general circulation in thecounty if there is no newspaper publishedin the county then in a newspaper publishedand of general circulation in one of thecounties nearest thereto The applicant forregistration may designate the newspaper inwhich the notice shall be published

94090 Mailing of notice Within 10 daysafter the first publication the clerk of thecircuit court shall send a copy of the noticeby mail addressed to the defendants whoseplaces of residence are stated in the application and whose appearance is not enteredand who are not served with process Thecertificate of the clerk stating that he hassent the notice shall be evidence thereof

Further notice of the application may begiven in such manner and to such personsas may be directed by the court or any judgethereof

94095 Answer and cross applicationAny person interested whether named asdefendant or not may upon entering hisappearance and answering the applicationwithin the time allowed by ORS 94075 to94090 or such further time as shall be allowed by the court oppose any applicationor file a cross application in like form as incase of an original application to have thetitle registered in his behalf In either casehe shall state particularly what his interestis and fully answer each material allegation of the application admitting avoidingor traversing the same or showing somecause in law why the allegation need not beadmitted avoided or traversed The answershall be verified by the affidavit of the answering party or his agent having knowledge of the facts The answer shall have nogreater weight as evidence than 4Llion

within the time required by summons dulyserved upon him or within the time required by any notice given pursuant to thischapter or appearing shall fail to answerthe application as provided in ORS 94095his default may be entered and the application taken as confessed Upon report of theexaminer showing that the facts stated inthe application are true and the applicanthas an interest in the land as set forth inthe application the court may grant an order or decree in accordance with the prayerof the application

DECREE AND ISSUANCE OFCERTIFICATE

94105 Decree of court The court mayin any proceeding under this chapter

1 Find and decree in whom the titleto or any interest in the land is vestedwhether in the applicant or in any otherperson

2 Remove clouds upon the title3 By its decree bar dower and curtesy

rights whether inchoate vested initiate orconsummate in the land sought to be registered of all persons except the wife or husband of the applicant unless appearance ismade by such persons and such rights areset forth and established in which case thesame shall be preserved in the decreeUpon failure of such persons to appearand set forth and establish such rights orclaims they shall be forever barred and concluded by the decree from asserting thesame in like manner as other defendantsand all such persons shall be made partiesdefendant in like manner as other defendants

4 Find and decree whether the land issubject to any lien encumbrance estatetrust or interest and declare the same

5 Order the registrar of titles to register such title or interest and in case theland is subject to any lien encumbrance estate trust or interest give directions as to themanner and order in which the same shall

appear upon the certificate of title to be issued by the registrar

6 Make all such orders and decrees asare equitable and are in conformity with theprinciples of this chapter

94100 Effect of failure to

answer If any person shall fail

is

Ce app ca 94110 Conclusiveness of decree ap

peal reopening of case Except as providedappear or in this section an order or decree made andto appear entered as provided in ORS 94105 shall be

742

SUPERSEDED

J

REGISTRATION OF TITLES TOR LAW 94125

forever binding and conclusive upon all persons whether mentioned by name in thepetition or included in all whom it mayconcern It shall not be an exception tosuch conclusiveness that the person is an infant lunatic or is under a disability butsuch person may have recourse upon the indemnity fund provided for in ORS 94620for any loss he may suffer by reason ofbeing so concluded An appeal may be allowed to the Supreme Court if prayed forat the time of entering the order or decreeand upon like terms as in other suits inequity A writ of error may be sued out ofthe Supreme Court within two years afterthe entry of the order or decree Any personhaving an interest in or lien upon the landwho has not been actually served with process or notified of the filing of such application or the pendency thereof may at anytime within two years after the entry of theorder or decree appear and file his swornanswer to such application in like manneras provided in ORS 94095 provided theaffidavit shall also state that such person hadno notice information or belief of the filing ofthe application or the pendency of the proceeding until within three months of thetime of the filing of the answer Upon thefiling of the answer and the giving of notless than 10 days notice to the applicantthe court shall proceed to review the caseIf the court is satisfied that the order ordecree should be opened an order shall beentered to that effect and the court mayreview the proceeding and make such orderin the case as is equitable An appeal maybe taken in such case within like time andin like manner as in the case of appeal froman original order or decree under this section

94115 Statute of limitation No personshall commence any action at law or suit inequity for the recovery of land or assertany interest or right in or lien or demandupon the land or make entry on the landadversely to the title or interest as foundordered or decreed by the court exceptwithin two years after the entry of theorder or decree This section is intended togive such right of action only to personswho because of some irregularity insufficiency or for some other cause are notbound and concluded by the order or decree

94120 Presentation of claims existingbut not actionable at date of registrationAny person having any interest right title

lien or demand whether vested contingentor inchoate in to or upon registered landwhich existed at the time the land was firstregistered and for which no cause of actionhad accrued at the date of the registrationof the land and who has not become barredor concluded by an order or decree mayprior to the expiration of two years afterthe registration file in the registrarsofficea notice under oath setting forth his interest right title lien or demand how andunder whom derived and its character andnature If such counterclaim is so filed anaction may be brought to assert or recoveror enforce the same at any time within oneyear after the right of action shall haveaccrued It is the duty of a life tenant ortrustee to file such a counterclaim on behalf of any remainderman or reversionerwhether the remainder or reversion is at thetime vested or contingent and of a guardianto file a counterclaim on behalf of his ward

94125 Issuance of first certificate

form Upon the filing of a certificate signedby the clerk giving the effect of the orderor decree of the court or a copy of theorder or decree in the registrars officethe registrar shall proceed to register thetitle or interest pursuant to the terms ofthe order or decree He shall make out acertificate of title which may subject tosuch change as the case may require besubstantially as follows

FIRST CERTIFICATE OF TITLE PURSUANT TO ORDER OF THE CIRCUIT

COURT OF COUNTY

State of Oregon

ssCounty of

of residence and if a minor givehis age if under other disability state tTienature of the disability married to nameof husband or wife or if not married saynot married is the owner of an estatein fee simple or as the case may be in thefollowing land here describe the premisessubject to the estates easements encumbrances and charges hereunder noted Incase of trust condition or limitation sayin trust or upon condition or with limitation as the case may be

Witness my hand and official seal thisdate

SealRegistrar

SUPERSEDED

94130 PROPERTY RIGHTS AND TRANSACTIONS94130 Form of subsequent certificates

Subsequent certificates may be in like formas the first certificate except that in placeof the words first certificate of title shallbe the words transfer from certificate No

the number of the next previouscertificate also the words first registereddate of first registration

94135 Words of inheritance not necessary for fee The words heirs and assignsshall not in any case be necessary to createa fee simple estate

94140 Data included in certificate

Each certificate shall bear the day and yearof its issue be under the hand and officialseal of the registrar and be numbered inorder of its issue It shall state whether theowner except in the case of a corporationis or is not married and if married thename of the husband or wife If the owneris a minor it shall state his age if underany other disability the nature of the disability The registrar shall note at the endof the certificate in such manner as to showand preserve their priorities the particularsof all estates mortgages encumbrances andcharges to which the owners title is subject

94145 Issuance of certificates to tenants in common In all cases where two ormore persons are entitled as tenants incommon to an estate in registered landsuch persons may receive one certificate forthe entirety or each may receive a separatecertificate for his undivided share

94150 Entry of certificates on register memorials and notations The registrarshall keep a book to be known as the register of titles wherein he shall enter allfirst and subsequent original certificates oftitle by binding or recording them in theorder of their numbers with appropriateblanks for the entry of memorials and notations allowed by this chapter Each certificate with such blanks shall constitute aseparate folio of the register All memorials and notations that may be enteredupon the register under the terms of thischapter shall be entered upon the folioconstituted by the last certificate of titleof the land to which they relate Wheneverthe term certificate of title is used in thischapter it includes all memorials and notations thereunder noted

makes out the original certificate of titlemake out an exact duplicate thereof withthe memorials and notations thereundernoted which shall be delivered to the ownerand shall be known as the owners duplicate

94160 Evidence of owners handwriting For the purpose of preserving evidenceof the handwriting of the owner in hisoffice the registrar shall take from theowner in every case where practicable areceipt signed by the owner for the certificate of title or whatever paper shall beissued to him When the receipt is signedin the registrarsoffice it may be witnessedby the registrar or a deputy If signed elsewhere it may be acknowledged before anyofficer authorized to take acknowledgmentsof deeds When so signed and witnessed oracknowledged the receipt shall be primafacie evidence of the genuineness of thesignature

94165 Effective date of certificate Inevery case of final registration the certificate of title shall relate back to and takeeffect as of the date of the order or decreedirecting the registration All dealings withthe land and statutory or other liens uponthe land subsequent to the filing of theapplication shall be subject to such orderor decree of the court

94170 Evidentiary effect of certificateor copy Until the expiration of the timelimited in ORS 94110 94115 and 94120 tobring an action or to contest the title of theregistered owner the certificate of titlewith the memorials and notations thereunder noted and any copy thereof duly certified under the hand and seal of the registrar and the owners duplicate certificateshall be prima facie evidence that the provisions of the law have been complied withand that the certificate of title has beenissued in compliance with a valid order ordecree and that the title to the land is asstated in the certificate After the expirationof the time so limited the certificate shallbe conclusive evidence of the same facts

94175 Issuance of single certificate inplace of several and vice versa 1 As faras it may be done consistently with anyregulations at the time being in force respecting the parcels of land that may beincluded in one certificate the registrar

94155 Owners duplicate certificate mayThe registrar shall at the time that he a Upon the application of any registered

744

C7

C7

SUPERSEDED


lu

owner of land held under two or more certificates of title and the delivering up of thecertificates issue to the owner a single certificate of title for all the land in accordancewith the application

b Upon the application of any registered owner of land held under one certificate of title and the delivering up of the certificate issue to the owner two or more certificates each containing a portion of theland in accordance with the application

2 Upon issuing a certificate of title asprovided in subsection 1 the registrarshall indorse on the 14st previous certificateof title of the land so delivered up a memorial setting forth the occasion of such cancellation and referring to the volume andfolio of the new certificate or certificates oftitle so issued

94180 Procedure when duplicate certificate is lost or destroyed If a duplicatecertificate of title is lost mislaid or destroyed the owner together with other persons if any having knowledge of the circumstances may make affidavit before theregistrar or any other officer authorized toadminister oaths stating the facts of thecase the names and descriptions of the registered owners and the particulars of allmortgages encumbrances or other mattersaffecting such land and the title thereto tothe best of applicants knowledge and belief If the registrar is satisfied as to thetruth of the affidavit and the bona fidesof the transaction he shall issue to theowner a certified copy of the original certificate with the memorials and notationsappearing upon the register and shall noteupon the register the fact cause and dateof such issue and shall also mark upon thecertified copy owners certified copy issued in place of lost mislaid or destroyedas the case may be certificate The certified copy shall stand in the place of andhave like effect as the missing duplicatecertificate


EFFECT OF REGISTRATIONWITHDRAWAL

94215 Right of person claiming underregistered owner Except in case of fraudand except as otherwise provided in thischapter a person taking a transfer of anyestate interest or charge in or upon registered land from the registered ownershall not be held to inquire into the circumstances under which or the considerationfor which such owner or any previous registered owner was registered and shall notbe affected with notice actual or constructive of any unregistered trust lien claimdemand or interest The knowledge that anunregistered trust lien claim demand orinterest is in existence shall not of itself

94205 Registration subjects land to thisbe imputed as fraud

chapter The bringing of land under this 94220 Effect of adverse possession

chapter shall imply an agreement which After land has been registered no estate orshall run with the land that the land shall interest in the land adverse or in derogation

be subject to the terms of the chapter and to the estate or interest of the registered745

all amendments and alterations thereof Alldealings with land or any estate or interesttherein after the land has been broughtunder this chapter and all liens encumbrances and charges upon the land subsequent to the first registration thereof aresubject to the terms of this chapter

94210 Status of owners estate or

interest The registered owner of any estateor interest in land brought under this chapter shall except in cases of fraud to whichhe is a party or the fraud of a person throughwhom he claims without valuable considera

tion paid in good faith hold the same subject only to the estates mortgages lienscharges and interests noted in the last certificate of title in the registrarsoffice andfree from all others except

1 Any subsisting lease or agreementfor a lease for a period not exceeding fiveyears where there is actual occupation ofthe land under the lease The term leaseshall include a verbal letting

2 All public highways embraced in thedescription of the land in the certificate areexcluded from the certificate

3 Any subsisting right of way or othereasement however created upon over orin respect to the land

4 Any tax or special assessment forwhich a sale of the land has not been had atthe date the certificate is issued

5 Any right of appeal right to appearand contest the application or right to makecounterclaim allowed by ORS 94110 94115or 94120

SUPERSEDED


owner shall be acquired by any length ofpossession

94225 Certificate as proof of title inaction or suit 1 In a suit for specific performance brought by a registered owner ofany land against a person who has contracted to purchase the land not having noticeof any fraud or other circumstances whichaccording to the provisions of this chapterwould affect the right of the vendor thecertificate of title of the registered ownershall be held in every court to be conclusiveevidence that the registered owner has inthe land a good and valid estate or interestas described in the certificate

2 In any action or proceeding broughtfor ejectment partition or possession ofland the certificate of title of a registeredowner shall except as to any person notbound by the order or decree of the courtor by some limitation contained in thischapter or in some other statute be heldto be conclusive evidence that the registeredowner has in the land a good and validestate or interest as described in the cer

tificate subject only to the estates mortgages liens charges and interests noted inthe certificate unless it appears by thenotations that the registered owner is entitled to the possession of the land

The application shall be witnessed by twowitnesses and acknowledged in the samemanner as is required for deeds

94235 Issuance of certificate of withdrawal The application for withdrawal shallbe filed with the registrar of titles and shallby him be recorded in the record known asthe Register of Titles Thereupon the titleis withdrawn from the registry system andrestored to the recording system upon theissuance of the following certificate whichthe registrar shall issue

Certificate of Withdrawal of Title from the

Registry System and Changing or RestoringSame Back to the Recording System

as the owner in fee simple of thefollowing described real property situatedin the county of State of Oregon thetitle to which has been registered under theprovisions of ORS Chapter 94 to wit Heredescribe property has filed application forthe withdrawal of title to said real propertyfrom the registry system and restoring orchanging the same back to the recordingsystem

This certifies that the title to said realproperty is withdrawn from the effect andoperation of the title registry system andthat the same is now under the recordingsystem

94230 Application for withdrawal fromregistry system Any owner of real propertyregistered under the provisions of this chapter shall upon the surrender for cancellationto the registrar of title of the registrationcertificate have the right to withdraw theland from the registry system and to restoreor change the land back to the recordingsystem by making a written application tothe registrar of titles in the following formTo the Registrar of Titles in the County of

State of OregonI am the owner in fee simple of

the following described real property situated in the county of State of OregonHere describe property the title to whichis registered under the provisions of ORSChapter 94 and I hereby make applicationto have the title to said real property withdrawn from the registry system for thepurpose of restoring and changing the sameback to the recording system

Witness my hand and seal this dayof

ApplicantsSignature

94240 Status of land after withdrawalThe certificate of withdrawal issued by theregistrar shall be recorded in the records ofdeeds in the county in which the real property is located and thereafter all transfersand proceedings in connection with the titleto the real property shall be in conformitywith the recording system The title shallnot thereafter be subject to any of the conditions of the registry system unless it isregistered again

94245 Effect of withdrawal on proceedings under registry system ORS 94230 to94240 shall not be construed to disturb the

effect of any proceedings under the registrysystem wherein the question of title to thereal property has been determined All proceedings had in connection with the registering of title relating to the settlement ordetermination of the title prior to withdrawal shall have the same force and effectas if the title still remained under the registry system


is

SUPERSEDED

REGISTRATION OF TITLES TORRENS L 94335

TRANSFER AND ENCUMBRANCE OFREGISTERED LAND

94305 Forms of conveyances and encumbrances 1 Like forms of deeds mortgages leases or other instruments as arenow or may hereafter be sufficient in lawfor the purpose intended may be used indealing with estates and interests in registered land

2 Every mortgage lease for a term notexceeding 10 years contract to sell andother instrument intended to create a lienencumbrance or charge upon registered landor any interest therein is a charge thereonand may be registered as provided in thischapter

3 A trust deed in the nature of a mortgage shall be subject to the same rules as amortgage

94310 Interests transferable by conveyance procedure of transfer 1 A registered owner of land may by deed or otherinstrument of conveyance convey his wholeinterest or estate in the land or some distinct part or parcel thereof or an undividedinterest therein or a life estate or an estate for a term of not less than 10 years

2 Upon the filing of the deed or otherinstrument in the registrars office and thesurrendering to the registrar of the duplicatecertificate of title and it being made to appear to the registrar that the transferor hasthe title or interest proposed to be transferred and is entitled to make the conveyance and that the transferee has the rightto have such estate or interest transferredto him the registrar shall make out andregister a new certificate and an ownersduplicate certifying the title to the estateor interest in the land to be in the transferee The registrar shall note upon the original and duplicate certificate the date of thetransfer the name of the transferor and thevolume and folio in which the new certificate is registered He shall stamp acrossthe original and surrendered duplicate theword canceled However when the entiretract of land embraced in the original certificate is transferred the transfer may bmade by memorandum indorsed upon theoriginal certificate and upon the ownerduplicate and a new certificate need not bemade out

94315 Retention of land or interest

land When only a part of the land or a portion of the owners interest in the land de

scribed in a certificate is transferred a newcertificate shall be issued to the transferor

for the part estate or interest remaining inhim

94320 Effective date of registration oftransfer or transaction Except as providedin ORS 94310 every transfer of registeredland shall be deemed to be registered whenthe new certificate to the new transferee is

entered in the register of titles All othertransactions shall be considered as registered when the memorial or notation is en

tered in the register upon the folio constituted by the existing certificate of title ofthe land However for the protection of thetransferee or person claiming through anytransfer or transaction the registrationshall relate back to the time of filing in theregistrarsoffice the deed instrument or notice pursuant to which the transfer memorial or notation was made

94325 Statements in certificate as tomarital status of transferee Every certificate issued upon transfer of registered landshall state whether the transferee exceptwhen a corporation is or is not married andif married the name of the husband or wifeThe transferee shall furnish the registrarthis information before he is entitled to havethe land transferred to him on the register

94330 Registration of transfer or mortgage when interests are outstanding Notransfer or mortgage of any estate or interest in registered land shall be registered until it is made to appear to the registrar thatthe land has not been sold for any tax orassessment upon which a deed has been given and the title is outstanding or uponwhich a deed may thereafter be given andthat the dower right of dower and estate ofhomestead if any have been released or extinguished or that the transfer or mortgageis intended to be subject thereto in whichcase it shall be stated in the certificate oftitle

94335 Filing of instrument affectinge registered land noting of day and hour ef

fect as notice The registrar shall mark ass filed every deed mortgage lease or other

instrument which is filed in his office inthe order of its receipt and shall note thereon at the date of filing the minute hour

m day and year it is received When the date offiling any instrument is required to be entered upon the register it shall be the same

747

SUPERSEDED


as that indorsed upon the instrument An instrument so filed shall impart notice of itscontents in like manner and with like effect as if it had been duly authenticated soas to be entitled to record and had beenfiled for record at the date of its filing andrecorded in the proper records of the samecounty

94340 Indorsement of name and ad

dress on instruments to be registered notices served at address given change of address On all instruments presented to theregistrar for registration there shall be indorsed the name and address of the personpresenting the same All notices issued bythe registrar or other person relating to theland described in the instrument may beserved on such person at such address Theaddress may be changed from time to timeby such person filing with the registrar awritten notice of the change

94345 Effect of execution of instrument dealing with registered land effect ofregistration With the exception of a will ora lease not exceeding five years where theland is in actual possession of the lessee orhis assigns a deed mortgage lease or otherinstrument purporting to convey transfermortgage lease charge or otherwise dealwith an estate interest or charge in or uponregistered land shall take effect only byway of contract between the parties and asauthority to the registrar to register thetransfer mortgage lease charge or otherdealing upon compliance with the terms ofthis chapter On the completion of registration the estate interest or charge shall become transferred mortgaged leased charged or dealt with according to the purportand terms of the instrument

94350 Procedure for placing charge onland When an instrument intended to create a charge is filed in the registrarsofficeand the duplicate certificate of title is produced and it appears to the registrar thatthe person intending to create the chargehas the right to create the charge and thatthe person in whose favor the charge issought to be created is entitled by the termsof this chapter to have the charge registered the registrar shall enter upon theproper folio of the register and also uponthe owners certificate a memorial of thepurport thereof and the date of filing theinstrument with a reference thereto by itsfile number The registrar shall sign the

memorial and shall note upon the instrument on file the volume and folio of theregister where the memorial is entered

94355 Procedure when charge is assigned The holder of any charge upon registered land may execute an assignment ofthe whole or any part of the charge andwhen the assignment is filed in the office ofthe registrar and the duplicate or certifiedcopy of the instrument creating the chargeheld by the assignor is produced the registrar shall enter in the register opposite thecharge a memorial of the transfer with areference to the assignment by its properfile number The registrar shall also notethe transfer upon the instrument on file inhis office and shall note upon the duplicate or certified copy thereof produced thevolume and folio where the memorial is

entered with the date of the entry Thetransferee is entitled to have a certified copyof the instrument of transfer with the indorsement thereon and if the entire chargeis transferred he is entitled to the duplicateor certified copy of the instrument creatingthe charge

94360 Release or surrender of chargeA release discharge or surrender of acharge or any part thereof or the chargeon any part of the land charged may beeffected in the same way as provided for atransfer in ORS 94355 In case only a partof the charge or the charge on part of theland is intended to be released dischargedor surrendered the entry shall be made accordingly When the whole charge is released discharged or surrendered at thesame or several times the registrar shallstamp across the instrument on file and thememorial thereof and the duplicate or certified copy produced the word canceled

94365 Enforcement of charge lis pendens notice All charges upon any estate orinterest in registered land may be enforcedas allowed by law and except as otherwiseprovided in this chapter all laws with reference to the foreclosure and release or sat

isfaction of mortgages shall apply to mortgages upon any estate or interest in registered lands Until notice of the pendencyof any suit to enforce or foreclose the chargeis filed in the registrarsoffice and a memorial thereof entered on the register thependency of the suit shall not be notice tothe registrar or any person dealing withthe land or any charge thereon

is

748

SUPERSEDED


C

94370 Filing of evidence of authorityof court appointed officer or attorney infact to deal with registered land 1 Before an assignee for the benefit of creditors receiver master in chancery specialcommissioner trustee in bankruptcy or other person appointed by a court shall dealwith or transfer an estate or interest in registered land he shall file in the registrarsoffice a certified copy of an order of thecourt showing that he is authorized to dealwith or transfer such estate or interest If

it is within the power of such person he shallpresent to the registrar the duplicate certificate of title The registrar shall enterupon the register and the duplicate certificate if presented a memorial of the orderwith a reference to the order by its file number In the case of a deed of the land to theassignee or receiver it shall be filed in theregistrars office as in other cases If theduplicate certificate is not presented theregistrar shall enter a memorial of thatfact upon the register

2 Before any person c an conveycharge or otherwise deal with any estate orinterest in registered land as attorney infact for another the deed or instrument empowering him to act shall be filed with theregistrar and a memorial thereof enteredupon the register in like manner as in thecase of a charge If the attorney so desiresthe registrar shall deliver to him a certifiedcopy of the power of attorney with theindorsements thereon Revocation of a power may be registered in like manner

94375 Power of court appointed officerto deal with land After memorials as provided for in subsection 1 of ORS 94370have been entered the assignee receivermaster in chancery special commissioner orother person appointed by a court may subject to the direction of the court deal withor transfer such land as if he were the registered owner

94380 Creation of trust condition orlimitation affecting registered land Whenever a deed or other instrument is filed inthe registrars office for the purpose ofeffecting a transfer of or charge upon anestate or interest in registered land and itappears that the transfer or charge is to beupon a trust condition or limitation expressed in the deed or instrument the registrar shall unless the deed or instrument expressly directs to the contrary note in the

certificate and duplicate thereof or memorial the words in trust or upon condition or with limitations as the casemay be No transfer or charge upon ordealing with the estate or interest shallthereafter be registered unless pursuant tothe order of a court or the filing of an affidavit of the person applying for registration that the transfer charge or dealing isin accordance with the true intent and mean

ing of the trust condition or limitation

94385 Registration of transfer or

charge of land subject to a trust conditionor limitation effect Upon the filing withthe registrar of an order of court or affidavit as provided in ORS 94380 the registrar shall register the same Such registration shall be conclusive evidence in favor of

the person taking the transfer charge orother right and those claiming under himin good faith and for a valuable consideration that the transfer charge or otherdealing is in accordance with the true intentand meaning of the trust condition or limitation

94390 Creation of statutory lien onregistered land In all cases where by anylaw relating to the liens of mechanics orothers a claim or notice is authorized to befiled in a court or office the claim or noticewhen it relates to an interest in registeredland may be filed in the registrars officeUpon being so filed a memorial thereofshall be entered by the registrar as in thecase of other charges and proceedings toenforce the lien may be had as provided inthe act creating the lien Until it is so filedand registered no lien shall be deemed tohave been created and the title to registeredland shall not be affected until the mem

orial regarding the lien is entered in theregister

94395 Assertion of claim or lien in registrarsoffice Any person making any claimto or asserting any lien upon registered landnot existing at the initial registry of theland and not shown upon the register oradverse to the title of the registered ownerwhen no other provision is made in thischapter for asserting the same in the registrars office may make affidavit thereofsetting forth his interest right title lienor demand and how and under whom derived and the character and nature of hisclaim or lien The affidavit shall state hisplace of residence and his place of business

49

SUPERSEDED


if he has one and designate a place at whichall notices relating thereto may be servedUpon the filing of the affidavit in the officeof the registrar the registrar shall enter amemorial thereof as in the case of a charge


DEVOLUTION OF REGISTERED LAND

94405 Devolution and distribution of

registered land on death Except as otherwise provided in this chapter any estate orinterest in registered land shall upon thedeath of the owner go to the personal representatives of the deceased in like manner

as personal property whether the owner diestestate or intestate and shall be subject tothe same rules of administration as if the

estate or interest was personalty Howeverthe rule of division shall be the same as inthe descent of real property or as shall beprovided by will

94410 Filing of letters by personal representative entry of memorial Before thepersonal representative of a deceased ownerof an estate or interest in registered landshall deal with the same he shall file in theregistrarsoffice a certified copy of his letters of administration If there is a will heshall file a certified copy of the will and ofletters testamentary or of administrationwith the will annexed as the case may beand shall produce the duplicate certificateof title The registrar shall then enter uponthe register and the duplicate certificate amemorial thereof with a reference to theletters or will and letters by their file number and the date of filing the same

94415 Representatives power to dealwith land Unless the will devises the lands

to an executor to his own use or upon sometrust or gives to the executor power to sellno sale or transfer of registered land shallbe made by the executor or by an administrator in the course of administration forthe payment of debts or otherwise exceptin pursuance of an order of a competentcourt obtained as provided by law Howeverif a memorial of the will and letters testa

mentary or of letters of administration isfirst entered upon the register as providedin ORS 94410 the executor or administratormay deal with mortgages leases and otherpersonal interests in or upon registered landas if he were the registered owner

750

94420 Procedure when devise to executor Where it appears by the will a certifiedcopy of which with the letters testamentaryis filed as provided in ORS 94410 thatregistered land is devised to the executor tohis own use or upon some trust the executormay have the land transferred to himselfupon the register in like manner and subject to like terms and conditions and withEke rights as in the case of a transfer pursuant to a deed filed in the registrarsoffice

94425 Exercise by executor of powergiven by will to deal with land When thewill of a deceased owner of an estate or interest in registered land empowers the executor to sell convey encumber charge orotherwise deal with the land it shall not benecessary for the executor to be registeredas the owner Upon a certified copy of thewill and letters testamentary being filed asprovided in ORS 94410 the executor maysell convey encumber charge or otherwisedeal with the land pursuant to the powerin like manner as if he were the registeredowner subject to the same conditions as tothe trust limitations and conditions expressed in the will as in case of trustslimitations and conditions expressed in adeed

94430 Necessity and effect of filingproof of heirship Before making distribution of undevised registered land the executor or administrator shall file in the registrars office a certified copy of the proof ofheirship made in the probate court whichshall be conclusive evidence in favor of allpersons thereafter dealing with the landthat the persons therein named as the onlyheirs at law of the deceased owner are suchheirs

94435 Sale of registered land by orderof probate court The court of probate mayfor the purpose of distribution of the estate order that an estate or interest in registered land be sold by the executor or administrator Upon the filing in the registrars office of a certified copy of the orderof sale and order of confirmation of the saleand the deeds issued in pursuance of thesale a transfer of the estate or interest tothe purchaser may be made upon the register as in the case of other sales by deed

94440 Partial distribution Wheneverafter the expiration of the time fixed forthe adjustment of claims against the estateof the deceased and after proof of heirship

is

J

SUPERSEDED


it is made to appear to the court of probatethat the estate will justify it the court maydirect the executor or administrator to makeover and transfer to the devisees or heirsor some of them a portion or the whole ofthe registered lands to which they might beentitled on final distribution Upon the filingof a certified copy of such order in the registrars office the executor or administratormay cause the transfer to be made upon theregister in like manner as in case of a saleThe land so transferred shall be held freefrom all liens or claims against the estateIn the proceedings to procure such directionsuch notice shall be given as the court ofprobate may direct

94445 Final distribution For the purpose of final distribution the court of probate may determine the right of all persons in the estate or interest of the deceasedin registered lands declare and enforce therights of devisees heirs persons entitled todower and homestead and others assigndower and homestead and make partitionand distribution according to the rights ofthe parties The court may give direction tothe executor or administrator as to thetransfer of any estate or interest in registered lands to the devisees or heirs and maydirect the transfer to be to several deviseesor heirs as tenants in common or otherwiseas shall appear to the court to be most convenient consistent with the rights of theparties or as the parties interested mayagree


LIEN OR TRANSFER BY TAX SALE ORJUDICIAL PROCEEDINGS

a notice of the registration of the certificateexcept that where certificates of sale havebeen issued directly to a county as providedin ORS 312100 it shall not be necessary togive such notice Unless the certificate ispresented and registered and notice givenas provided in this section within threemonths after the date of sale the land shallbe forever released from the effect of such

sale and no deed shall be issued in pursuance of the certificate When it shall appearby the affidavit of the holder of the certificate filed with the registrar that the placeof residence of any person interested in theland cannot upon diligent inquiry be ascertained the requirement of this section asto mailing notice shall not apply to such person

94510 Effect of tax deed A tax deed

of registered land or an estate or interesttherein issued in pursuance of any sale fortax or assessment shall have the effect ofa transfer of title upon the register andmay be filed in the registrars office Atransfer shall be effected as in the case ofother deeds or conveyances and the registrar shall upon presentation of such tax deedcancel all outstanding certificates and issuea new certificate to the grantee named inthe deed

94515 Necessity of filing lis pendensnotice of action or suit affecting land Nosuit bill or proceeding at law or in equityfor any purpose affecting an estate interest or charge in or upon registered landshall be deemed to be lis pendens or noticeto any person dealing with the same until acertificate of the pendency of such suit billor proceeding under the hand and officialseal of the clerk of the court in which it ispending shall be filed with the registrarand a memorial thereof entered by him upon the register of the last certificate of thetitle to be affected This section shall notapply to attachment proceedings in whichthe officer making the levy shall file hiscertificate of levy as provided in ORS94525

94505 Procedure for registration ofcertificate of sale for tax or assessment Theholder of any certificate of sale of registeredland or any estate or interest therein forany tax assessment or imposition shallwithin three months after the date of sale

present the certificate or a sworn copythereof to the registrar who shall enter onthe register of the land a memorial thereofstating the day of sale and date of presentation The registrar shall also note upon thecertificate of sale the date of presentationand the book and page of the register wherethe memorial is entered The holder of thecertificate shall also within the same timemail to each of the persons who appear bythe register to have any interest in the land

75

94520 When judgment or decree isbinding on the land No judgment decree ororder of any court shall be alien upon oraffect an estate or interest in registeredland until a certificate under the hand andofficial seal of the clerk of the court inwhich the same is of record stating the date

SUPERSEDED


and purport of the judgment decree or order or a certified copy of such judgmentdecree or order is filed in the office of theregistrar and a memorial of the same isentered upon the register of the last certificate of the title to be affected

94525 When levy of process createslien on land Whenever registered land islevied upon by virtue of any writ of attachment execution or other process it shall bethe duty of the officer making the levy tofile with the registrar a certificate of thefact of such levy A memorial of the levyshall be entered upon the register and nolien shall arise by reason of the levy untilthe filing of the certificate and the entry inthe register of such memorial any noticethereof actual or constructive to the contrary notwithstanding

94530 Procedure when land is sold on

execution or by decree redemption Whenregistered land is sold by virtue of any execution judgment or decree it shall be theduty of the officer making the sale to file aduplicate of his certificate of sale with theregistrar Upon its being so filed the registrar shall enter a memorial thereof uponthe register in the same manner as he is required to enter other memorials Certificatesof redemption shall be filed and noted uponthe register in like manner

94535 Transfer of title following judicial sale When registered land is sold by asheriff master in chancery receiver specialcommissioner or other officer or person pursuant to a judgment decree or order ofcourt no transfer of the title shall be madeby the registrar except upon the surrenderand cancellation of the outstanding certificate of title or upon an order of the courtfiled with the registrar directing the transfer When a fee is transferred the court order shall direct the cancellation of the out

standing certificate and grant to the transferee a writ of assistance to put him in possession of the premises

court in which any suit bill or proceedinghas been pending or any judgment or decreeis of record that such suit bill or proceeding has been dismissed or otherwise disposedof or the judgment decree or order hasbeen satisfied released reversed or overruled

2 The certificate of any sheriff or other officer that the levy of any execution attachment or other process certified by himhas been released discharged or otherwisedisposed of


FEES INDEMNITY FUND

94605 Fees of clerk of court On the

filing of any petition the petitioner shallpay to the clerk of the court the sum of 5which is payment in full for all of the clerksfees and charges in the proceeding on behalf of the applicant Any defendant on entering his appearance shall pay to the clerkthe sum of 5 which is payment in full forall clerks fees on behalf of such defendantWhen any number of defendants shall entertheir appearance at the same time or beforedefault only one fee shall be charged

94610 Registrarsand examiners feesThe fees to be paid the registrar shall be asfollows

1 At or before the time of referring theapplication for initial registration the applicant shall pay to the registrar the sum of10 of which the sum of 250 is paymentin full for the services of the registrar upto the granting of the certificate of titleand 750 is payment in full for the servicesof the examiner However when there is acontest or when the evidence of title is com

plicated the court shall allow to the examiner such further sum as is reasonable compensation for his services In proper casesthe court may direct the payment of suchfurther fees by the applicant or defendantas it may determine

2 For the granting of certificates of94540 Cancellation of memorial involv

ing suit judgment or levy When one of thefollowing certificates is filed in the registrars office and noted upon the registerthe registrar is authorized to cancel or otherwise treat according to the purport ofthe certificate the memorial of a suit billproceeding judgment decree or levy

1 The certificate of the clerk of the

title upon each application and registeringthe same 1

3 For registering each transfer including the filing of all instruments connected therewith and the issue and registrationof the new certificate of title 50 cents

4 For the entry of each memorial onthe register including the filing of all instruments connected therewith and the issue J

752

SUPERSEDED


and registration of the new certificate oftitle 50 cents

5 For the entry of each memorial onthe register including the filing of all instruments and papers connected therewithand indorsement upon duplicate certificate25 cents

6 For filing copy of will with letterstestamentary or filing copies of letters ofadministration and entering memorial thereof 25 cents

7 For the cancellation of each memorial or charge 25 cents

8 For each certificate showing condition of register 25 cents

9 For a certified copy of the register or any instrument of writing on file inhis office the same fees now allowed by lawto recorders of deeds for like services

10 For the filing and recording of anapplication of withdrawal and the issuingof a certificate of withdrawal under ORS94230 and 94235 1

94615 Payments for purpose of indemnity fund Upon the bringing of lands underthe operation of this chapter consequent upon the application of the owner or upon theissuance of a certificate of title pursuant toORS 94510 or upon the entry of a new certificate showing a person either by deviseor by descent as registered owner thereshall be paid to the registrar onetenth ofone percent of the value of the land suchvalue to be ascertained by the registrar

94620 Creation of indemnity fund investment All sums of money received underORS 94615 shall be paid by the registrarto the county treasurer of the county inwhich the land is situated for the purposeof creating an indemnity fund The treasurer shall invest all of said funds in his handsfrom time to time if not immediately required for payments of indemnities and report annually to the county court the condition of the fund and income therefrom Allinvestments shall be made with the approvalof the county court by order entered ofrecord The fund shall be invested only inthe bonds or securities of the United State

or of this state or of counties or other municipalities of this state

94626 to 94700 Reserved for expsansioan

REMEDIES OF INJURED PERSONS

94705 Equitable relief for aggrieved person 1 Whenever any person interested inany estate of interest in or charge upon registered land is entitled to have anycertificate of title memorial or other entryupon the register canceled removed or modified and the registrar or other person whoseduty it is to do any act towards the sameshall upon request fail or refuse to do soor is absent from the county or cannot befound or for any reason the request cannotbe made upon him a court of equity mayupon petition by the person interested makesuch order as may be according to equityin the premises and upon a certified copyof the order being filed in the registrarsoffice the registrar shall comply with theorder

2 Any person feeling himself aggrievedby the action of the registrar or by his refusal to act in regard to anything requiredof him by this chapter may file his petitionin equity in any court of competent jurisdiction making the registrar and other persons whose interests may be affected parties defendant and the court may proceedtherein as in other cases in equity and makesuch order or decree as shall be accordingto equity in the premises and the purportof this chapter

3 The court may in any case broughtunder this section in addition to the costsaward such damages including reasonableattorneys fees as it deems just

94710 Noting of order or decree givingequitable relief Nothing contained in ORS94705 shall be construed to remove the bar

of any order or decree or extend the timeof limitation provided in this chapter oraffect the right of any bona fide purchaseror encumbrancer without notice filed withthe registrar and noted as in case of othermemorials

94715 Injured personsaction for damages from indemnity fund Any person whoby the provisions of this chapter is barredor in any way precluded from bringing anaction for recovery of an interest in or claimupon registered land may bring an action atlaw against the treasurer of the county in

States which the land is situated for the recoveryof damages to be paid out of the indemnityfund if

1 Such person has sustained loss ordamage through any omission mistake or

753

SUPERSEDED


misfeasance of the registrar or of any examiner of titles or of any deputy or clerkof the registrar in the performance of theirrespective duties under this chapter or

2 Such person has wrongfully been deprived of any interest in land through thebringing of the land under the provisions ofthis chapter or by the registration of anyother person as owner of the land or by anymistake omission or misdescription in anycertificate or in any entry or memorandumin the register book or by any cancellation

94720 Defendants in action for dain

ages secondary liability of indemnity funddefense by district attorney If an actionbrought under the provisions of ORS 94715is for recovery for loss or damage arising onlythrough omission mistake or misfeasanceof the registrar or of any examiner of titlesor any deputy or clerk of the registrar inthe performance of their respective dutiesunder the provisions of this chapter thecounty treasurer shall be the sole defendantto the action If the action is brought for lossor damage arising only through the fraudor wrongful act of some person other thanthe registrar examiner of titles deputiesand clerks or arising jointly through thefraud or wrongful act of such other personand the omission mistake or misfeasance ofthe registrar examiner of titles deputiesor clerks the action shall be brought againstboth the county treasurer and such personaforesaid In all such actions where there

are defendants other than the county treasurer and damages are recovered no finaljudgment shall be entered against the county treasurer until execution against the other defendants is returned unsatisfied inwhole or in part and the officer returningthe execution certifies that the amount still

due upon the execution cannot be collectedexcept by application to the indemnity fundWhen the court is satisfied as to the truth

of the return it may upon proper showingorder the amount of the execution and costsor so much thereof as remains to be paidby the county treasurer out of the indemnity fund It shall be the duty of the district attorney to appear for the countytreasurer and defend all such suits

94725 Statute of limitations disabili

time when the right to bring such action orproceeding first accrued

2 An action or proceeding may bebrought at any time within two years afterthe disability is removed even though morethan 10 years has expired since the rightaccrued if at the time the cause of actionaccrued the person bringing the action orthe person from by or under whom heclaims was

a A male under 21 years of ageb A female under 18 years of agec Insane

d Imprisonede Absent from the United States in

the service of the United States or of thisstate

94730 Criminal proceeding as affecting remedy by injured person No proceeding or conviction for any act declared bythis chapter to be a crime shall affect anyremedy which any person aggrieved or injured by such act may be entitled to atlaw or equity against the person who hascommitted the act or against his estate


POWERS AND DUTIES OF REGISTRARS

94805 Registrars and deputies lawsgoverning their rights powers and dutiesThe recorder of conveyances or other recording officer of each county shall be registrar of titles in the county and his deputies shall be deputy registrars All laws relative to recorders and their deputies including their compensation clerk hire and expense shall extend to registrars and theirdeputies so far as applicable

94810 Powers and duties of deputiesDeputies may perform any duties of the registrar in the name of the registrar and theacts of deputies shall be held to be the actsof the registrar In case of the death ofthe registrar or his removal from office thechief deputy shall become the acting registrar until the vacancy is filled and he shallfile a like bond and be vested with the same

powers and subject to the same responsibilities and entitled to the same compensation

ties 1 Except as provided in subsectionas the registrar

2 of this section no action or proceed 94815 Registrar not to practice law Noing shall be brought under the provisions of registrar or deputy registrar shall practiceORS 94715 except within 10 years from the as attorney at law nor be in partnership

754

SUPERSEDED

J

C

REGISTRATION OF TITLES TORREN LAW 94990

while in office with any practicing attorneyat law

94820 Liability of registrar for neglectof deputy or examiner The registrar is liablefor any neglect or omission of the dutiesof the registrars office by a deputy or examiner of titles in the same manner as forhis own personal neglect or omission

94825 Handling of memorials and notations Whenever a memorial or notation hasbeen entered as permitted by this chapterthe registrar shall carry the same forwardupon all certificates of title until it is canceled in some manner authorized by thischapter

94830 Custody of papers filed All instruments notices and papers required orpermitted by this chapter to be filed in theoffice of the registrar shall be retained andkept in such office They shall be numberedconsecutively and shall be listed in a bookkept for that purpose and described withdescriptions such as warranty deed quitclaim deed mortgage

94835 Registration of instrument executed in duplicate or multiplicate When anymortgage lease or other instrument creating or dealing with an estate interest orcharge in or upon registered land is in duplicate triplicate or more parts only oneof the parts need be filed and kept in theregistrars office However the registrarshall note upon the register whether theinstrument is in duplicate triplicate or moreparts He shall mark upon the others mortgagees duplicate lessors duplicate lessees duplicate or as the case may be andnote upon the instruments the date of thefiling and the volume and folio of the register where the memorial is entered anddeliver them to the parties entitled thereto

94840 Issuance of certified copies of instruments When an instrument is not executed in a sufficient number of parts forthe convenience of the parties the registrarmay make and deliver to each of the partiesentitled thereto certified copies of the instrument filed in his office with the indorsements thereon marking the copies mortgagees certified copy lessors certifiedcopy or as the case may be and shall noteupon the register the fact of issuing suchcopies The certified copies shall have thesame force and effect and be treated asduplicates

94845 Tract indices The registrarshall keep tract indices in which shall beentered the lands registered in the numericalorder of townships ranges sections and inall cases of subdivisions the blocks and lotstherein also the names of the owners anda reference to the volume and folio of theregister in which the lands are registered

94850 Alphabetical indices The registrar shall keep alphabetical indices in whichshall be entered in alphabetical order thenames of all registered owners and all otherpersons interested in or holding charges upon registered land with a reference to thevolume and folio of the register in whichthe land is registered

CONSTRUCTION OF CHAPTER

94855 Construction of chapter Thischapter shall be construed liberally so faras may be necessary for the purpose of effecting its general intent


PENALTIES

94990 Penalties for forgery and fraudin registration 1 Any person shall be imprisoned in the penitentiary for not morethan 10 years or fined not more than1000or both who

a Forges or procures to be forged orassists in forging the seal of the registraror the name signature or handwriting of anyofficer of the registry office where suchofficer is expressly or impliedly authorizedto affix his signature

b Fraudulently stamps or procures tobe stamped or assists in stamping anydocument with any forged seal of the registrar

c Forges or procures to be forged orassists in forging the name signature orhandwriting of any person to any instrument which is expressly or impliedly authorized to be signed by such person

d Uses any document upon which anyimpression or part of the impression of anyseal of the registrar has been forged knowing the same to have been forged

e Uses any document the signature towhich has been forged knowing the same tohave been forged

f Swears falsely concerning any mat755

SUPERSEDED

94990 PROPERTY RIGH AND TRANSACTIONS

ter or proceeding made or done in pursuance of this chapter

2 Any person who fraudulently procures or assists in fraudulently procuringor is privy to the fraudulent procurement ofany certificate of title or other instrumentor of any entry in the register or other bookkept in the registrarsoffice or of any eras

ure or alteration in any entry in said bookor in any instrument authorized by thischapter or who knowingly defrauds or isprivy to defrauding any person by means ofa false or fraudulent instrument certificatestatement or affidavit affecting registeredland shall be fined not more than 5000or imprisoned in the penitentiary for notmore than five years or both

756

SUPERSEDED

Chapter 95

1963 reprint

Fraudulent Conveyances

95010 Definitions95020 Conveyances of realty to defraud purchasers95030 Reservation by grantor of power of revoca

tion

95040 Grant of power to revoke conveyance rightsof purchaser from grantee

95050 Conveyance prior to exercise of power ofrevocation

95060 lifts and transfers in trust for transferor

95070 Conveyance transfer or device to defraudhinder or delay creditors

95080 Heirs representatives and assigns of creditors purchasers or mortgagees as having right to assert invalidity of transaction

95090 Fraudulent intent as question of fact95100 Purchasers for value without notice are not

affected by this chapter

CROSS REFERENCES

Bulk Transfers Ch 76

Conveyance with intent to defraud as a crime165220

Escrows regulation 696505 to 696580Frauds statute of 41580

Mortgaged personalty Ch 86Negotiable documents of title when negotiation

is not impaired by fraud 775020Public assistance setting aside fraudulent convey

ance made to obtain 411620Tax foreclosure lands acquired by county where

title fraudulently concealed from owner 312260Trust grant or assignment of any existing to be

in writing 41560

95020

Conveyance unrecorded void as to subsequentpurchaser 93640

Sheriffs certificates of sale unrecorded asai ent

of void as to subsequent purchasers N 4095070

Presumption that sale or assignment of personalproperty capable of manual delivery unaccompanied by change of possession is fraudulent4136039

95080

Decedent avoidance of acts in fraud of creditorsof 116310

757

SUPERSEDED

95010 PROPERTY RIGH AND TRANSACTIONS

95010 Definitions As used in this chapter

1 Lands includes tenements a n dhereditaments

2 Estate and interest in lands includes every interest freehold and chattellegal and equitable present and future vested and contingent in lands

3 Conveyance includes every instrument in writing by which any estate or interest in lands is created aliened assignedor surrendered except a will

95020 Conveyances of realty to defraud purchasers Every conveyance or interest in lands or the rents or profits oflands and every charge upon lands or uponthe rents and profits thereof made or created with the intent to defraud prior or subsequent purchasers for a valuable consideration of the same lands rents or profits isvoid as against such purchasers Howeverno such conveyance or charge shall bedeemed fraudulent in favor of a subsequentpurchaser who had actual or legal noticethereof at the time of his purchase unless itappears that the grantee in such conveyanceor the person to be benefited by such chargewas privy to the fraud intended

95030 Reservation by grantor of power of revocation Every conveyance of orcharge upon any estate or interest in landscontaining any provision for the revocationdetermination or alteration of the estate orinterest or any part thereof at the will ofthe grantor is void as against subsequentpurchasers from the grantor for a valuableconsideration of any estate or interest soliable to be revoked determined or alteredalthough it is not expressly revoked determined or altered by the grantor by virtueof the power reserved or expressed in suchprior conveyance or charge

95040 Grant of power to revoke conveyance rights of purchaser from granteeWhere a power to revoke the conveyance ofany lands or the rents and profits thereofand to reconvey the same is given to anyperson other than the grantor in such conveyance and such person thereafter conveys the lands or rents and profits to a purchaser for a valuable consideration suchsubsequent conveyance is valid in the samemanner and to the same extent as if the

power of revocation were recited thereinand the intent to revoke the former conveyance expressly declared

95050 Conveyance prior to exercise ofpower of revocation If a conveyance to apurchaser under ORS 95030 or 95040 ismade before the person making it is entitledto execute his power of revocation it shallnevertheless be valid from the time the power of revocation actually vests in such person in the same manner and to the same extent as if then made

95060 Gifts and transfers in trust fortransferor All deeds of gift all conveyancesand all verbal or written transfers or assignments of goods chattels or things inaction made in trust for the person makingthe same are void as against the creditorsexisting or subsequent of such person

95070 Conveyance transfer or deviceto defraud hinder or delay creditors Everyconveyance or assignment in writing orotherwise of any estate or interest in landsgoods or things in action or of any rentsor profits issuing therefrom and everycharge upon lands goods or things in action or upon the rents or profits thereofmade with the intent to hinder delay or defraud creditors or other persons of theirlawful suits damages forfeitures debts ordemands and every bond or other evidenceof debt given suit commenced decree orjudgment suffered with the like intent asagainst the person so hindered delayed ordefrauded is void

758

95080 Heirs representatives and assigns of creditors purchasers or mortgageesas having right to assert invalidity of transaction Every conveyance charge instrument or proceeding declared by law to bevoid as against creditors purchasers ormortgagees is also void as against the heirssuccessors personal representatives or assigns of such creditors purchasers or mortgagees

95090 Fraudulent intent as question offact The question of fraudulent intent in allcases arising under the provisions of thischapter is one of fact and not of law

95100 Purchasers for value without notice are not affected by this chapter Theprovisions of this chapter do not in anymanner affect or impair the title of a purchaser for a valuable consideration unless itappears that such purchaser had previousnotice of the fraudulent intent of his immediate grantor or of the fraud renderingvoid the title of such grantor

SUPERSEDED


Line and Partition Fences

96010 Sharing expenses of partition fence 96050 Gate in partition fence96020 Failure to repair Partition fence 96060 Removal of fence built on anthers land96030 Repairs by complainant 96070 Rnnning of division line as notice to re96040 Removal of partition fence

move fence built on anthers laud

CROSS REFERENCES

Animals damage by or to fences to prevent Ch 608

759

SUPERSEDED

96010 PROPERTY RIGHT AND TRANSACTIONS

96010 Sharing expenses of partitionfence Whenever there is a fence that is inall respects such as a good husbandmanought to keep on the line of any land andthe person owning or holding a lease forone or more years of the land adjoiningthereto makes or has an inclosure on the opposite side of such fence so that such fenceanswers the purpose of inclosing the lattersfield meadow lot or other inclosure thelatter shall pay the owner of such fence already erected onehalf of the value of somuch thereof as serves as a partition fencesuch value to be determined by the partiesIf they cannot agree the party aggrievedand entitled to compensation for constructing or repairing the partition fence shall beentitled to recover from the other in a civilaction the value of onehalf of such fenceor half of the value of repairing it beforeany court having competent jurisdiction inthe name of and for the use of the owneror lessee of such fence together with hisdisbursements and costs of action The prevailing party shall also recover his attorneys fees to be adjudged by the court

96020 Failure to repair partition fenceIf any party neglects to repair or rebuildsuch partition fence as is mentioned in ORS96010 or the portion thereof which he oughtto maintain the aggrieved party may complain to a justice of the peace who afterdue notice to each party shall examine thefence and if he determines it to be insufficient he shall so signify in writing to thedelinquent party and direct the latter to repair or rebuild it within such time as headjudges to be reasonable

96030 Repairs by complainant If a partition fence is not repaired or rebuilt according to the directive mentioned in ORS96020 the complainant may repair or rebuild it and recover the value thereof fromthe delinquent party before any court ofcompetent jurisdiction together with hiscosts and disbursements and reasonable attorneys fees to be adjudged by the court

96040 Removal of partition fence 1In all cases where the inclosures of two ormore persons are divided by a partitionfence of any kind and either of the partiesthinks it proper to vacate his part of theinclosure or to make a lane or passage between the adjoining inclosures he is at liberty to remove his share or part of the partition fence on giving six months notice in

7

writing of such intention to the party owning or occupying the adjoining inclosure orto his agent if such party is not a residentof the county

2 When one party ceases to improvehis land or opens his inclosure he shall nottake away any part of the partition fencebelonging to him and adjoining the next inclosure if the owner or occupant of the adjoining inclosure within two months afterit is ascertained pays therefor such sum asis agreed upon by the parties or if they failto agree such sum as is adjudged by twodisinterested persons selected by the parties which two persons if they fail to agreemay select a third person and the three persons shall determine such sum Such partition fence shall not be removed when by sodoing it will expose to destruction any cropsin such inclosures

96050 Gate in partition fence In allcases where a partition fence exists betweenthe land of two or more persons and a gateis established for passage through theirlands any other person may pass throughthe gate free doing no unnecessary damageand if any such person leaves any such gateopen or does other damage to the premiseshe is liable to the aggrieved party in doubledamages

96060 Removal of fence built on anothers land 1 When any person has builtor builds by mistake and in good faith afence on the land of another such person orhis successor in interest may within oneyear from the time of discovering the mistake go upon the land of the other personand remove the fence doing no unnecessarydamage thereby

2 The occupant or owner of landwhereon a fence has been built by mistakeshall not throw down or in any manner disturb such fence during the period which theperson who built it is authorized by subsection 1 of this section to remove it

96070 Running of division line as notice to remove fence built on anothers landThe person building the fence mentioned inORS 96060 or the occupant or owner of theland whereon it is built may upon noticeto the other party whenever doubts ariseabout its location require the surveyor ofthe county to run the division line betweentheir respective lands and the line so runshall be sufficient notice to the party making the mistake so as to require him to re

somove such fence within one year thereafter

SUPERSEDED

Chapter 97


Cemetery Lots Property Rights in Human Bodies

SPECIAL PROVISIONS RELATING TO ORS

97010 TO 97130 97141 TO 97450 AND97510 TO 97990

97010

97020

97030

97040

97110

97120

9713097132

97134

97141

97145

97150

97160

97170

97180

97190

97200

97210

9722097230

Definitions

Exemption of certain organizations andcemeteries from certain sections of chapter

Vested rights not acquiredPrivate family burial grounds

DISPOSITION OF HUMAN BODIES

Human remains not to be attached

Human remains to be deposited in accordancewith ORS 97010 to 97130 97141 to 97450and 97510 to 97990

Right to control disposition of remainsGift of body by will or other instrument for

scientific and medical purposesExecution of instrument making gift under

ORS 97132 nonliability of persons actingthereunder

Authorization of cemetery authority to interor cremate remains

Liability of cemetery authority for failureto conform to priority of control of remains

Actions against cemetery authority or funeral directors

Duty of hospital or sanitorlum to notifyperson chargeable with funeral expensesbefore sending remains to undertaker

Disposition of the body of an indigentPeriod within which body may not be usedPost mortem examination of indigentsbodyDisposition of indigents remains after edu

cational use thereof

Exceptions to application of ORS 97170 to97200

DisintermentPublic use of state crematories

DEDICATION TO CEMETERY PURPOSESPLATTINGS

97310

97320

97330973409735097360

97370973809739097400

lations

97720 Record of interments and cremations inspection

97730 Gifts and bequests in trust for cemeteriesCEMETERY CARE

97810 Endowment care and nonendowed care cemeteries

97820 Placing cemetery under endowed care deSurvey and subdivision of land map or plat posit and withdrawal commingling en

of mausoleum or columbarium dowment and special care fundsFiling map or plat and declaration of dedi 97825 Suit to take charge of endowment care fund

cation of land to cemetery purposes or to compel expenditures from endowWhen dedication is complete ment care fund

Effect of dedication 97830 Investment and reinvestment of principal ofDedication to cemetery purposes not invalid endowed care funds use and applicationResurvey and alteration in shape or size of income

vacation of streets walks driveways and 97835 Limitation of duties and liability of trusteeparks and replatting into lots 97840 Cemetery authority authorized to receive

Fixing date of hearing notice and hold gifts of propertyHearing order allowing replatting 97850 Endowment and special care funds are charAssessment of benefits and damages itable

Disposal of newly created lots disposition 97860 Agreements for careand use of proceeds from sale failure of 97870 Unused and unimproved portions of cemeowner to perform duties tery declared common nuisances

761

97410 Right of adjacent lot owner upon vacationof way

97420 Effect of failure to object97430 Declaration of exercise of police power and

right of eminent domain97440 Removal of dedication97450 Discontinuance of cemetery and removal of

remains and markers

97460 Restrictions on proximity of cemetery property to dwelling houses

SALES AND RIGHTS IN RESPECT OFCEMETERY PLOTS

97510 Sale and conveyance of plots by cemeteryauthority

97520 Sale or offer to sell cemetery plot uponpromise of resale at financial profit

97530 Commission bonus or rebate for sale of plotor services

97540 Commission bonus or rebate for recommendation of cemetery

97550 Plots are indivisible97560 Presumption of sole ownership in grantee of

plot97570 Spouse has vested right of interment97580 Divestiture of spouses right of interment97590 Transfer of plot or right of interment97600 Descent of plot97610 Determining occupant of burial plot having

coowners

97620 Death of coowner authorization to useplot under directions of surviving owners

97630 Family plots order of occupation97640 Waiver or termination of vested right of

interment

97650 Limitations upon vested right of interment

CEMETERY MANAGEMENT

97710 Power of cemetery to make rules and regu

SUPERSEDED

CS 97 CROSS REFERENCES

97880 Resolution declaring a nuisance97890 Complaint97900 Summons

97910 Disuse as primafacie evidence of abandonment of portion

97920 Decree declaring nuisance authorizingabatement and creating and foreclosinglien

PENALTIES97990 Penalties

CROSS REFERENCES

Acquisition of abandoned cemeteries in cities226510 to 226630

Building code for burial structures 477610 to477730

Cemetery and crematory corporations 61755 to61775

County administration of funds for cemetery care214910 to 214940

97120

Coroner or sheriff burial of bodies which are thesubject of an investigation 146230 146570

Illegal transportation of dead body 432340 432990Permit for burial removal or other disposition of

dead body necessity and prerequisites for432307 to 432327

97132

Authority of executor when will includes gift of bodyfor research purposes 116115

97160

Report of deaths to local registrar 432165 432307Supervisors of institutions to report deaths of in

mates to coroner or medical investigator146030 146115 146440 146990

SPECIAL PROVISIONS RELATING TOORS 97010 TO 97130 97141 TO 97450

AND 97510 TO 97990

97010 Definitions As used in ORS

97010 to 97130 97141 to 97450 and 97510to 97990

1 H u m a n remains or remains

means the body of a deceased person in anystage of decomposition or after cremation

2 Cemetery means any place dedicated to and used or intended to be used forthe permanent interment of human remains

3 Burial park means a tract of landfor the burial of human remains in the

ground used or intended to be used anddedicated for cemetery purposes

4 Mausoleum means a structure for

the entombment of human remains in cryptsor vaults in a place used or intended to beused and dedicated for cemetery purposes

5 Crematory means a structure containing a retort for the reduction of bodies

97170Coroner or sheriff burial of bodies which are the

subject of an investigation 146230 14657097190

Deaths to be reported to coroner or medical investigator 146030

Election of coroner in Multnomah County 204005Local health officer as medical investigator 146420

97310

Cemeteries on watersheds 449125Plats requirements for Ch 92Right of ways through cemeteries 366325School districts controlling realty for cemetery

purposes 33221097450

Discontinuance of abandoned cemetery and removalof remains 226510 to 226630

97460

Cemeteries establishment on watershed distancefrom source of supply regulated 449125

97810Fund paid under certain agreements to buy graves

in endowment care cemeteries not in trust128412

of deceased persons to cremated remains6 Columbarium means a structure

or room containing niches for permanentinurnment of cremated remains in a placeused or intended to be used and dedicatedfor cemetery purposes

7 Interment means the dispositionof human remains by cremation inuremententombment or burial

8 Cremation means the reduction ofa body of a deceased person to crematedremains in a crematory

9 Inurnment means placing cremated remains in an urn and depositing it in aniche

10 Entombment means the placement of human remains in a crypt or vault

11 Burial means the placement ofhuman remains in a grave

12 Grave means a space of groundin a burial park used or intended to be usedfor burial of the remains of one person

762

SUPERSEDED

CEMETERY LOTS PROPERTY RIGHTS IN HUMAN BODIES 97130

J

C

13 Crypt or vault means a spacein a mausoleum of sufficient size used orintended to be used to entomb uncrematedhuman remains

14 Niche is a recess in a columbarium used or intended to be used for theinterment of the cremated remains of oneor more persons

15 Cemetery authority includescemetery corporation association corporation sole or other person or persons owningor controlling cemetery lands or property

16 Cemetery association means anycorporation or association authorized by itsarticles to conduct any or all the businessesof a cemetery but does not include a corporation sole or a charitable eleemosynaryassociation or corporation

17 Cemetery business cemeterybusinesses and cemetery purposes areused interchangeably and mean any businessand purpose requisite or incident to ornecessary for establishing maintaining operating improving or conducting a cemetery interring human remains and the carepreservation and embellishment of cemeteryproperty

18 Directors or governing bodymeans the board of directors board of trustees or other governing body of a cemeteryassociation

19 Lot plot or burial spacemeans space in a cemetery owned by oneor more individuals an association or fraternal or other organization and used orintended to be used for the permanentinterment therein of the remains of one ormore deceased persons Such terms includeand apply with like effect to one or morethan one adjoining grave crypt vault orniche

20 The term plot owner or ownermeans any person in whose name a burialplot stands as owner of the right of sepulture therein in the office of the cemeteryauthority or who holds from such cemeteryauthority a conveyance of the right of sepulture or a certificate of ownership of theright of sepulture in a particular lot plotor space

21 Endowment care means the general care and maintenance of all developedportions of the cemetery and memorialserected thereon

for such purposesAmended by 1955 c545 1

97020 Exemption of certain organizations and cemeteries from certain sectionsof chapter The provisions of ORS 9703097120 97310 to 97350 subsection 1 of97360 ORS 97510 97550 and 97810 to97860 relating to private cemeteries do notapply to

1 Any religious or eleemosynary corporation church religious society or denomination corporation sole administeringtemporalities of any church or religious society or denomination or any cemetery organized controlled and operated by any ofthem

2 Any county town or city cemeteryAmended by 1955c473 1

97030 Vested rights not acquired Nocemetery authority or person having a rightof sepulture or any other right under ORS97010 to 97130 97141 to 97450 and 97510to 97990 acquires any vested right by virtue thereof which the Legislative Assemblymay not subsequently amend alter or repeal

97040 Private family burial groundsExcept for ORS 97730 97010 to 9713097141 to 97450 and 97510 to 97990 do notapply to private family burial grounds wherelots are not offered for sale


DISPOSITION OF HUMAN BODIES97110 Human remains not to be at

tached No person shall attach detain orclaim to detain any human remains for anydebt or demand or upon any pretended lienor charge

97120 Human remains to be depositedin accordance with ORS 97010 to 9713097141 to 97450 and 97510 to 97990 Acemetery authority shall deposit or disposeof human remains as provided by ORS 97010to 97130 97141 to 97450 and 97510 to97990

97130 Right to control disposition ofremains The right to control the dispositionof the remains of a decedent unless otherdirections have been given by him vests inhis surviving spouse his surviving children

22 Special care is any care in ex his surviving parents and the person in theteas of endowed care in accordance with the next degree of kindred to him in the orderspecific directions of any donor of funds

763

named

SUPERSEDED


97132 Gift of body by will or other instrument for scientific and medical purposesA person of testamentary capacity may bywill or other written instrument give thewhole or part of his body to a charitableeducational or research institution or organization or licensed hospital for scientific andmedical purposes designated in the will orinstrument or for scientific and medical purposes to be determined by the institutionorganization or hospital The gift shall beeffective upon the death of the testator ordonor

1961 c674 1

97134 Execution of instrument makinggift under ORS 97132 nonliability of persons acting thereunder 1 If the instrumentmaking the gift described in ORS 97132does not purport to be a will it shall beexecuted by the donor or some person inhis presence and by his direction and attested in the presence of the donor by twoor more competent witnesses

2 No person acting in good faith pursuant to the directions contained in such

will or other instrument without knowledgeof the subsequent revocation or modification if any of such will or other instrumentshall be liable to the surviving spouse ornext of kin for performing acts necessaryto carry out the gift of the donor1961 c674 2 3

97140 Repealed by 1957 c423 1 ORS 97141and 97145 enacted in lieu of ORS 97140

97141 Authorization of cemetery authority to inter or cremate remains Anycemetery authority may inter or cremateremains of a decedent without liability therefor upon receipt of a written authorizationfrom the following persons in the ordernamed

1 The decedent in his lifetime or fromhis papers after death or

2 Any person who by sworn statementrepresents himself to be

a The surviving spouseb A surviving child or adopted child

over the age of 21 yearsc A surviving parent or adoptive par

ent

d A next of kin

e Any other person who has acquiredthe right to control disposition of the remains

The sworn statement signed by any personmentioned in this subsection shall contain afurther affirmation by the signator that to

764

the best of his knowledge there is no otherexisting person having a prior right to thecontrol of the remains or that any personhaving such a prior right has given to thesignator written or telegraphic permissionto sign such authorization to the cemeteryauthority If any signator is acting underwritten or telegraphic permission from aperson having a prior right the original ofsuch written or telegraphic permission shallbe filed with the cemetery authority1957 c423 2 ORS 97141 and 97145 enacted in lieuof ORS 97140

97145 Liability of cemetery authorityfor failure to conform to priority of controlof remains Any cemetery authority interring or cremating remains pursuant to ORS97141 shall not be liable for any failure toconform to the priority of control of remainsprovided in ORS 97130 except when it shallhave received two or more conflicting written authorizations prior to interment or cremation of said remains1957 c423 3 ORS 97141 and 97145 enacted in lieuof ORS 97140

97150 Actions against cemetery authority or funeral directors No action liesagainst any cemetery authority or licensedfuneral director relating to any crematedremains which have been left in its possession for a period of five years unless awritten contract has been entered into withthe cemetery authority for their care orunless permanent interment has been made

97160 Duty of hospital or sanitoriumto notify person chargeable with funeralexpenses before sending remains to undertaker 1 No hospital or sanitorium or theemployes agents or representatives thereofshall send or cause to be sent to any funeraldirector undertaker mortician or embalmerthe remains of any decedent without firsthaving made a reasonable effort to inform arelative friend or person chargeable withthe funeral expenses of such decedent ofthe death of such decedent

2 Nothing in this section limits orgoverns the authority of any administratoror executor trustee or other person havinga fiduciary relationship with the deceasedor to the state counties cities or towns inthe disposition of the remains of a deceasedperson

97170 Disposition of the body of anindigent 1 Any public officer havingcharge of the body of a deceased person

is

SUPERSEDED


C

required to be buried at public expense shallif he knows or can with reasonable diligenceascertain any of them promptly notify therelatives of such deceased person or anyother person having an interest in him andshall deliver the body to any relative whoclaims it or to any friend of the deceasedperson who will pay the expense of buryingor cremating the body If no one claims thebody within 72 hours after death or if thosenotified acquiesce the officer at the expenseof the recipient of the body shall notify bytelegraph or telephone the Demonstrator ofAnatomy of the State Department of HigherEducation The Demonstrator of Anatomywho shall be appointed by the State Boardof Higher Education from the staff of theUniversity of Oregon Medical School shallimmediately inform the officer whether thebody is deemed to be in fit condition and isdesired for medical instruction or the ad

vancement of medical science If the bodyis desired for these purposes the officershall deliver it to a licensed embalmer whoafter such preparation as is necessary fortransportation shall within 72 hours deliver it in his own conveyance to the University of Oregon Medical School the University of Oregon Dental School or anyother school or college within the State ofOregon qualifying applicants for examination in the fundamental sciences as requiredand specified in ORS chapter 676 to chapter 686 as the Demonstrator of Anatomydirects or shall deliver it to the agent ofthe express company at the nearest railroadstation consigned as instructed by the demonstrator The expenses of transportation ofthe body to such school or college andreturn of the container to the embalmer

making the shipment shall be borne by theinstitution receiving the body Such expenses shall not exceed the public carrierrates for such services between the pointsof shipment and destination

2 The educational institution receiv

ing the body shall pay the licensed embalmer handling it such fee as shall beestablished from time to time by the StateBoard of Higher Education

3 If the Demonstrator of Anatomydoes not require any such body for instruction or research it may be assigned onrequest to any other properly authorizedinstitution within this state or to any qualified physician for instruction or research

97180 Period within which body maynot be used Upon receipt of any body by aschool or college pursuant to ORS 97170it shall be properly embalmed for anatomicalpurposes but shall be retained 30 days before being used or dismembered If it isclaimed by any relative or friend withinthat period it shall be delivered to theclaimant

97190 Postmortem examination of in

digents body Unless required by the coroner or county or district medical investigator as the case may be to determine thecause of death or specifically authorized andordered by the superintendent of the hospital or institution in which any person coming under the provisions of ORS 97170 maydie no such body as is mentioned in ORS97170 is subject to postmortem examination except by consent of the Demonstratorof AnatomyAmended by 1959c629 43

97200 Disposition of indigentsremainsafter educational use thereof The remains

of any corpse used for the purposes authorized by ORS 97170 shall upon completionof such use be decently buried or crematedand the ashes in case of cremation shall bedelivered to any relative who claims themafter establishing relationship All expensesincident to burial and cremation and the

delivery of ashes to any relative shall beborne by the educational institution whichused the body for educational purposes

97210 Exceptions to application of

ORS 97170 to 97200 The body of any person who died of smallpox diphtheria scarletfever or other disease that the State Board

of Health by rule may prescribe shall notbe subject to the provisions of ORS 97170to 97200

97220 Disinterment 1 The remainsof a deceased person interred in a plot in acemetery may be removed therefrom withthe consent of the cemetery authority andwritten consent of the person who has theright to control the disposition of the remains of the deceased person If the consentof any such person or of the cemeteryauthority cannot be obtained permission bythe county court or the board of countycommissioners of the county where thecemetery is situated is sufficient Notice ofapplication to the court for such permissionmust be given at least 60 days prior thereto

65

SUPERSEDED


personally or by mail to the cemeteryauthority to the person not consenting andto every other person or authority on whomservice of notice is required by the countycourt or the board of county commissioners

2 If the payment for the purchase ofan interment space becomes past due and soremains for a period of 90 days this sectiondoes not apply to or prohibit the removalof any remains from one plot to another inthe same cemetery or the removal of remains by the cemetery authority from aplot to some other suitable place

3 This section does not apply to thedisinterment of remains upon order of courtor coroner

97230 Public use of state crematories

Any resident and inhabitant of the State ofOregon has the right to use any of thecrematories owned by the state for the cremation of bodies of deceased relativesfriends or members of his family under suchregulations as may be adopted by the boardor institution having such crematory in control The state shall charge for such servicesactual expenses of the cremation plus 10percent of such expense which charges shallbe paid to the State Board of Control and byit turned over to the State Treasurer whoshall credit all sums so received to the Insti

tutional Betterment Fund to be used asother moneys in such fund


DEDICATION TO CEMETERY

PURPOSES PLATTINGS

97310 Survey and subdivision of landmap or plat of mausoleum or columbariumEvery cemetery authority from time totime as its property may require for cemetery purposes shall

1 In case of land survey and subdivide it into sections blocks plots avenueswalks or other subdivisions and make a goodand substantial map or plat showing themwith descriptive names or numbers

2 In case of a mausoleum or columbarium make a good substantial map or platon which are delineated the sections hallsrooms corridors elevation and other divisions with descriptive names or numbers

97320 Filing map or plat and declaration of dedication of land to cemetery purposes In case of a cemetery lot the cemetery authority shall file the map or plat in

the office of the recording officer of thecounty in which all or a portion of theproperty is situated and it forthwith shallfile for record in that officers office a writ

ten declaration dedicating the property delineated on the plat or map exclusively tocemetery purposes

97330 When dedication is completeUpon the filing of the map or plat and of thedeclaration for record the dedication iscomplete for all purposes and thereafterthe property shall be held occupied andused exclusively for cemetery purposes

97340 Effect of dedication After property is dedicated to cemetery purposes pursuant to ORS 97310 to 97330 and subsec

tion 1 of 97360 neither the dedicationnor the title of a plot owner shall be affectedby the dissolution of the cemetery authorityby nonuser on its part by alienation of theproperty by any encumbrances by sale under execution or otherwise except as provided in ORS 97310 to 97350 subsection2 of 97360 ORS 97440 97510 to 9765097710 97720 and 97810 to 97860

97350 Dedication to cemetery purposesnot invalid Dedication to cemetery purposespursuant to ORS 97010 to 97130 97141 to97450 and 97510 to 97990 is not invalid as

violating any laws against perpetuities orthe suspension of the power of alienation oftitle to or use of property and is deemed tobe in respect for the dead and is a provision for the interment of human remains

and is a duty to and for the benefit of thegeneral public

97360 Resurvey and alteration in shapeor size vacation of streets walks drivewaysand parks and replatting into lots 1 Anypart or subdivision of the property so mapped and platted may by order of the directors and consent of the lot owners be resurveyed and altered in shape and size and anamended map or plat filed so long as suchchange does not disturb any interred remains

2 Whenever a majority of the lots asplatted or laid out in any cemetery established before March 3 1927 or any partthereof has been sold without the ownersor persons in control of the cemetery havingmade provision for the establishment of anadequate endowment fund for the perpetualmaintenance upkeep and beautification ofthe cemetery and of the lots therein the

766

r

SUPERSEDED


avenues streets alleys walks driveways andparks therein may be vacated or altered andreplatted into lots which may be sold forburial purposes in the manner provided inthis subsection and in ORS 97370 to 97430

Application for the vacation or alteration ofany avenues streets alleys walks driveways or parks and for the replatting of thesame or any portion thereof for cemeterylots in any such cemetery shall be made tothe county court or board of county commissioners in the county where the cemeteryis situated The application may be by theowners or persons in control of the cemetery or by a group of 20 or more personsowning lots or having relatives buried therein The application shall be verified andshall specify the lots owned by each petitioner in which are buried bodies of relatives inwhich he is interested and shall state thereason for the proposed change and whatprovisions have theretofore been made forthe perpetual upkeep maintenance and beautification of the cemetery and there shall bepresented therewith a plat of the cemeterytogether with the proposed replat whichshall have clearly indicated thereon the proposed changes

97370 Fixing date of hearing noticeWhen any application mentioned in subsection 2 of ORS 97360 is filed the courtor board shall fix the time for the hearingof it and notice of the time thereof shall begiven by publication in a paper of generalcirculation published in the town in whichthe cemetery is situated or in the town towhich it is nearest once a week for a

period of six successive weeks prior to thedate of the hearing and a copy of suchnotice shall be posted for a like period atthree public and conspicuous places in thecemetery Such notice shall be addressed toall persons owning lots or having an interestin the cemetery but need not name themand shall set forth in a general way theproposed changes the reason stated in theapplication for making it the time when thehearing of the application will be had andshall state that a plat showing the proposedchanges is on file with the county clerk ofthe county in which the cemetery is situated

97380 Hearing order allowing replatting 1 At the hearing mentioned in ORS97370 the court or board shall consider andhear any evidence introduced in favor ofthe proposed change and all objections

thereto and after a full hearing thereonmay allow the proposed change and replatin whole or in part If the proposed change isallowed either in whole or in part an orderallowing it shall be made providing that titleto any new lot created by the alteration orvacation of any avenues streets alleys driveways walks or parks or any part thereofshall be vested in the owner of the fee ofthe part of the cemetery sought to be vacated in trust for burial purposes or vested inany association which may be formed forthe purpose of taking over the cemetery andoperating and maintaining it in accordancewith the provisions of ORS 97400

2 No such replat shall be approvedunless each lot is left at least one adequatemeans of ingress and egress by an avenuestreet alley walk driveway or park

97390 Assessment of benefits and dam

ages If any damages are claimed by theowner of any lot in any such cemetery as ismentioned in subsection 2 of ORS 97360which lot is adjacent to the avenues streetsalleys driveways or parks vacated as provided in ORS 97380 they shall be ascertained by the county court or board ofcounty commissioners and offset against thebenefits accruing to the lot owner on accountof the upkeep and beautification of the cemetery in the manner provided in ORS 97400Any person feeling aggrieved at the amountof damages so assessed by the board mayappeal from such order of allowance to thecircuit court of the county in which thecemetery is situated in the same manner asis provided by statute for appeal from theassessment of damages by the exercise ofeminent domain in locating a county roadand on such appeal the jury in assessingthe amount of damages to be allowed to theappellant shall offset against such damagesthe benefits accruing to the appellant as inthis section above provided

97400 Disposal of newly created lotsdisposition and use of proceeds from salefailure of owner to perform duties Anyowner or association accepting the trust ofhandling and disposing of lots newly createdpursuant to ORS 97380 shall by the acceptance thereof agree to dispose of the lots onlyfor burial purposes and at a price not lessthan that fixed by the county court orboard of county commissioners The netfunds derived from the sale of the lots remaining after the payment of the reasonable

767

SUPERSEDED


expenses incident to the vacation and of thesale shall be placed in an irreducible andperpetual fund and the interest therefromshall be used for the perpetual upkeep andbeautification of the cemetery and the lotstherein situated The fund shall be placed insome reliable trust company specified by thecourt or board which trust company shallinvest the same and pay the income therefrom to the owner or association chargedwith the disposal of such lots Any owneror association taking over the sale of thelots shall comply with such provisions asthe court or board may require of it in theupkeep beautification and care of the cemetery with the income thereof and if suchowner or association for any reason fails toperform such duties the court or board mayon its own motion from time to time appoint some other association or individual toperform them The restrictions of this section shall not apply to the sale of lots obtained by replatting cemeteries owned andmaintained by any county

97410 Right of adjacent lot ownerupon vacation of way The vacation ofan avenue street alley driveway walk orpark adjacent to a cemetery lot shall vestin the owner of such lot no interest in the

vacated portion thereof but the adjacentowner shall for 30 days after the date ofsuch an order of vacation have the rightto purchase any new lot adjacent to his lotat the price fixed by the court or board atwhich the lots are to be sold and if there ismore than one adjacent lot owner the newlot shall be sold to the one offering thehighest price therefor

97420 Effect of failure to object Anyowner of such cemetery as is mentioned insubsection 2 of ORS 97360 or of any lottherein or any relative or heir of any deceased person buried in such cemetery whofails to appear and file written objection toany proposed replat alteration or vacationauthorized by subsection 2 of ORS 97360shall be deemed to have consented to the proposed change and shall be forever barredfrom claiming any right to use and haveopen for traffic or passageway any streets

actment of subsection 2 of ORS 97360and ORS 97370 to 97430 is hereby declaredto be a necessary exercise of the police powers of the state in order to preserve and keepexisting cemeteries as resting places for thedead and to preserve old and historic cemeteries from becoming unkempt and places ofreproach and desolation in the communitiesin which they are located The taking ofavenues streets alleys walks drivewaysand parks for the purpose and by the method specified in subsection 2 of ORS 97360and ORS 97370 to 97420 is hereby declaredan exercise of the right of eminent domain inbehalf of the public health safety comfortpleasure and historic instruction

97440 Removal of dedication Propertydedicated to cemetery purposes shall be heldand used exclusively for cemetery purposesunless and until the dedication is removedfrom all or any part of it by an order anddecree of the county court or board of countycommissioners of the county in which theproperty is situated in a proceeding broughtby the cemetery authority for that purposeand upon notice of hearing and proof satisfactory to the court that the following conditions exist

1 That the portion of the propertyfrom which dedication is sought to be removed is not being used for interment ofhuman remains

2 That notice of hearing provided inthis section shall be given by publicationonce a week for at least four consecutive

weeks in a newspaper of general circulationin the county where the cemetery is locatedand by posting copies of the notice in threeconspicuous places on that portion of theproperty from which the dedication is to beremoved The notice shall

a Describe the portion of the cemetery property sought to be removed fromdedication

b State that all remains have been removed or that no interments have been

made in the portion of the cemetery property sought to be removed from dedication

c Specify the time and place of thehearing

alleys driveways or parks vacated or any 97450 Discontinuance of cemetery andright title or interest therein except as pro removal of remains and markers Whenevervided in subsection 2 of ORS 97360 and any cemetery which is within the limits of97370 to 97410

any county city or town has been aban97430 Declaration of exercise of police doned or it is desirable to abandon such

power and right of eminent domain The en cemetery or such cemetery has been allowed768

SUPERSEDED


to remain in a dilapidated condition for aperiod of five years or longer the governingbody of any county if the cemetery is ownedby the county or the corporate authoritiesof the city or town if the cemetery is ownedby the city or town or the trustees or directors if the cemetery is owned by an association or corporation may order thatsuch burial ground be discontinued causethe remains of all persons interred thereinto be moved to some other suitable place andprovide for the removal and reerection of allstones and monuments marking said gravesHowever such removal shall be made in anappropriate manner and in accordance withthe directions of the State Health Officerand written notice shall first be given to thefamily or next of kin of the deceased ifknown and if unknown notice of the removal shall be published for at least foursuccessive weeks in a newspaper of generalcirculation in the county in which the cemetery is located Such removal and the costsof the proceedings under this section shallbe at the expense of the county city or townparty corporation or association owning thecemetery to be movedAmended by 1955c472 1

for that purpose and as a part of or as anextension of the existing and contiguous cemetery before June 16 1930

2 The provisions of this section are notapplicable to the Lincoln Memorial Park warveterans burial ground nor any additionsthereto nor shall this section limit in anyway any authority regarding such burialground or additions thereto provided by anyother lawFormerly 64060


SALES AND RIGHTS IN RESPECT OFCEMETERY PLOTS

97510 Sale and conveyance of plots bycemetery authority After filing the map orplat and recording the declaration of dedication a cemetery authority may sell andconvey plots subject to such rules and regulations as may be then in effect and subjectto such other and further limitations conditions and restrictions made a part ofthe declaration of dedication by reference orincluded in the instrument of conveyance ofthe plot

97520 Sale or offer to sell cemeteryplot upon promise of resale at financialprofit No person firm or corporation shallsell or offer to sell a cemetery plot upon thepromise representation or inducement ofresale at a financial profit except with theconsent and approval of the CorporationCommissioner Each violation of this sectionconstitutes a separate offense

97460 Restrictions on proximity of cemetery property to dwelling houses 1 Noassociation corporation or person shall afterFebruary 24 1903 lay out open up or useany property for cemetery or burial purposeswithin 200 yards of any dwelling house without the consent of the owner of the househaving first been obtained in writing Suchrestriction shall not apply to cemeteries orburial places as laid out and in operation onFebruary 24 1903 or to land owned by anycemetery association at that time exceptthat in counties having a population of 60000or over the boundaries of any cemeteryor burial place as laid out and in operation onFebruary 24 1903 or land owned by anycemetery association at that time shall notbe extended so as to approach nearer than200 yards to any dwelling house without theconsent of the owner of the house havingfirst been obtained in writing Any land incounties now having a population of 200000or over situated within or without any incorporated city or town and which is contiguous to a laidout and used cemetery maybe used by the existing cemetery or the organization operating it for burial and cemetery purposes to within 200 feet of any dwelling house if the land was acquired and platted

97530 Commission bonus or rebate forsale of plot or services No cemetery authority shall pay or offer to pay and no personfirm or corporation shall receive directlyor indirectly a commission bonus rebate orother thing of value for the sale of a plotor services This does not apply to a personregularly employed by the cemetery authority for such purpose Each violation of thissection constitutes a separate offense

97540 Commission bonus or rebate forrecommendation of cemetery No personshall pay cause to be paid or offer to payand no person firm or corporation shallreceive directly or indirectly except as provided in ORS 97530 any commission bonusrebate or other thing of value in consideration of recommending or causing a deadhuman body to be disposed of in any cemetery Each violation of this section constitutes a separate offense

f69

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97550 Plots are indivisible All plotsthe use of which has been conveyed by deedor certificate of ownership as a separateplot are indivisible except with the consentof the cemetery authority or as provided bylaw

97560 Presumption of sole ownershipin grantee of plot All plots conveyed to individuals are presumed to be solely and separately owned by the person named in theinstrument of conveyance

97570 Spouse has vested right of interment 1 The spouse of an owner of anyplot containing more than one intermentspace has a vested right of interment of hisremains in the plot and any person thereafter becoming the spouse of the owner hasa vested right of interment of his remainsin the plot if more than one interment spaceis unoccupied at the time the person becomesthe spouse of the owner

2 The purchase by a married person ofmore than one interment space shall createin the spouse a right of interment therein

97580 Divestiture of spouses right ofinterment No conveyance or other action ofthe owner without the written consent orjoinder of the spouse of the owner diveststhe spouse of his vested right of intermentexcept that a final decree of divorce betweenthem terminates the right unless otherwiseprovided in the decree

97590 Transfer of plot or right of interment No transfer of any plot heretoforeor hereafter made or any right of intermentis complete or effective until recorded on thebooks of the cemetery authority

97600 Descent of plot Upon the deathof the owner unless he has disposed of theplot either by specific direction in his will orby a written declaration filed and recordedin the office of the cemetery authority if nointerment has been made in an intermentplot which has been transferred by deed orcertificate of ownership to an individualowner or if all remains previously interredare lawfully removed the plot descends tothe heirs at law of the owner subject to therights of interment of the decedent and hissurviving spouse

97610 Determining occupant of burialplot having coowners When there are twoor more owners of a burial plot or of rights of

7

interment therein such owners may designate one or more persons to designate theburials to be made in the plot and file written notice of such designation with thecemetery association In the absence of suchnotice or of written objection to its so doingthe cemetery association is not liable to anyowner for interring or permitting an interment therein upon the request or directionof any registered coowner of the plot

97620 Death of coowner authorization to use plot under directions of survivingowners An affidavit by any person havingknowledge of the fact setting forth the factof the death of one owner and establishingthe identity of the surviving owners namedin the deed to any plot when filed with thecemetery authority operating the cemeteryin which the plot is located is authorizationto the cemetery authority to permit the useof the unoccupied portion of the plot in accordance with the directions of the survivingowners or their successors in interest

97630 Family plots order of occupation1 Whenever an interment of the remains ofa member or of a relative of a member of thefamily of the record owner or of the remains of the record owner is made in a plottransferred by deed or certificate of ownership to an individual owner and the ownerdies without making disposition of the ploteither by direction in his will or by a writtendeclaration filed and recorded in the office

of the cemetery authority the plot therebybecomes inalienable and shall be held as the

family plot of the owner and occupied inthe following order

a One grave niche or crypt may beused for the owners interment one for theowners surviving spouse if there is onewho by ORS 97010 to 97130 97141 to97450 and 97510 to 97990 has a vested rightof interment in it and in those remaining ifany the children of the deceased owner inorder of death may be interred without theconsent of any person claiming any interestin the plot

b If no child survives the right ofinterment goes in order of death first to thespouse of any child of the record owner andsecond in the order of death to the nextheirs at law of the owner or the spouse ofany heir at law

2 Any surviving spouse child or heirwho has a right of interment in a family plotmay waive such right in favor of any other

70

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CEMETERY LOTS PROPERTY RIGHTS IN HUMA BODIES 97730

relative or spouse of a relative of either thedeceased owner or of his spouse and uponsuch waiver the remains of the person inwhose favor the waiver is made may beinterred in the plot

97640 Waiver or termination of vested

right of interment A vested right of interment may be waived and is terminated uponthe interment elsewhere of the remains of

the person in whom it is vested

97650 Limitations upon vested right ofinterment No vested right of intermentgives to any person the right to have hisremains interred in any interment space inwhich the remains of any deceased personhaving equal or prior vested right of interment have been interred nor does it giveany person the right to have the remains ofmore than one deceased person interred ina single interment space in violation of therules and regulations of the cemetery inwhich the interment space is located


CEMETERY MANAGEMENT

97710 Power of cemetery to make rulesand regulations 1 The cemetery authoritymay make and enforce rules and regulationsfor

a The use care control managementrestriction and protection of its cemetery

b Restricting and limiting the use ofall property within its cemetery

c Regulating the uniformity class andkind of all markers monuments and otherstructures within its cemetery

d Prohibiting the erection of monuments markers or other stuctures in orupon any portion of its property

e Regulating or preventing the erection of monuments effigies and structureswithin any portion of the cemetery groundsand for the removal thereof

f Regulating the care or preventingthe introduction of plants or shrubs withinsuch grounds

g Preventing the interment in anypart thereof of a body not entitled to interment therein

h Preventing the use of burial plotsfor purposes violative of its restrictionsi Regulating the conduct of persons

and preventing improper assemblages therein andj All other purposes deemed necessary

by the cemetery authority for the properconduct of its business and the protectionand safeguarding of the premises and theprinciples plans and ideals on which thecemetery was organized

2 The cemetery authority from time totime may amend add to revise change ormodify such rules and regulations

3 Such rules and regulations shall beplainly printed or typewritten and maintained subject to inspection in the officeof the cemetery authority

97720 Record of interments and cre

mations inspection 1 The person incharge of any premises on which intermentsor cremations are made shall keep a recordof all remains interred or cremated on the

premises under his charge in each casestating the name of each deceased personthe date of interment or cremation and thename and address of the funeral director

The interment records shall be open to inspection by survivors of the decedent during thecustomary office hours of the cemeteryauthority

2 A record shall be kept of the ownership of all plots in the cemetery whichhave been conveyed by the cemetery authority and of all transfers of plots in thecemetery

97730 Gifts and bequests in trust forcemeteries Gifts grants and bequests ofpersonal property in trust for the purposeof providing perpetual care and maintenanceimprovement or embellishment of privateburial lots in or outside of cemeteries and

of the walks fences monuments structuresor tombs thereon are permitted and shall bedeemed to be for perpetual and benevolentuses They are not invalid by reason of anyindefiniteness or uncertainty of the personsdesignated as beneficiaries in the instrumentcreating the trust nor are they invalid asviolating any existing laws against perpetuities or suspension of the power of alienationof title to property But nothing in this section affects any existing authority or causeto pass upon the reasonableness of theamount of such gift grant or bequest Anycemetery association may act as trustee ofand execute any such trust with respect tolots walks fences monuments structuresor tombs both within or outside its owncemetery limits but within the county wheresuch cemetery association has its principaloffice and place of business whether such

771

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power is otherwise included in its corporatepowers or not


CEMETERY CARE

97810 Endowment care and nonendowed care cemeteries 1 An endow

ment care cemetery is one which after July5 1955 deposits in its endowment carefund not less than the following amountsfor plots sold after that date

a Fifteen percent of the gross salesprice with a minimum of 5 for each graveor when the gross sales price is paid in instalments 15 percent of each instalment until at least 15 percent of the gross sales pricehas been deposited with a minimum of 5 foreach grave

b Five dollars for each nichec Fifteen dollars for each crypt

The cemetery authority shall deposit in itsendowment care fund any payment receivedby it and required by this subsection to bepaid into such fund within 30 days from thereceipt of such payment

2 No cemetery shall operate after July5 1955 as an endowment care permanentmaintenance or free care cemetery until theProvisions of this section are complied withThere shall be printed or stamped at thehead of all contracts and certificates of own

ership or deeds referring to plots in an endowment care cemetery the following statement This cemetery is an endowment carecemetery in lettering equivalent to at least10point No 2 black type and there shallbe printed in the body of or stamped uponthe above described instruments the following statement Endowment care means thegeneral care and maintenance of all developed portions of the cemetery and memorials erected thereon

3 A cemetery which otherwise complies with subsections 1 and 2 of thissection may be designated an endowmentcare cemetery even though it contains asmall area which may be sold without endowed care if it is separately set offfrom the remainder of the cemetery Thereshall be printed or stamped at the head ofall contracts and certificates of ownershipor deeds referring to plots in this area thephrase nonendowed care in lettering equivalent to at least 10point No 2 black type

4 A nonendowed care cemetery is one772

that does not deposit in an endowment carefund the minimum specified in subsection1 of this sectionAmended by 1955c545 2

97820 Placing cemetery under endowedcare deposit and withdrawal comminglingendowment and special care funds 1Every cemetery authority which operatesacemetery may place its cemetery under endowed care and establish maintain and operate an endowment care fund All endowedcare funds shall be held in the name of the

trustees appointed by the cemetery authority All new investments of money depositedin the endowment care fund after July 51947 shall be in securities approved by theState Treasurer All endowed care fund

securities shall be deposited with a bankor trust company authorized by law todo business in this state or some other de

pository approved by the State InsuranceCommissioner upon the condition that suchsecurities may not be withdrawn without theapproval of the commissioner Before thecommissioner approves any proposed withdrawal from any depository the cemeteryauthority shall satisfy him that the securitywill be reinvested and redeposited or otherwise used in accordance with the provisionsof ORS 97010 to 97130 97141 to 97450and 97510 to 97990

2 Endowment care and special carefunds may be commingled for investmentand the income therefrom shall be divided

between the endowment care and specialcare funds in the proportion that each fundcontributed to the principal sum invested

3 The funds may be held in the nameof the cemetery authority its directors orthe trustees appointed by the cemetery authority

4 In lieu of the appointment of aboard of trustees of its endowment care

fund any cemetery authority may appointas sole trustee thereof any bank or trustcompany qualified to engage in the trustbusiness Such bank or trust company shallbe authorized to receive and accept the fundincluding any accumulated endowment carefund in existence at the time of its appointment


97825 Suit to take charge of endowment care fund or to compel expendituresfrom endowment care fund Should the cemetery authority fail to remit to the trustee ortrustees in accordance with the law the

is

SUPERSEDED

CEMETERY LOTS PROPERTY RIGH IN HUMAN BODIES 97860

funds herein provided for endowment andspecial care or fail to expend all such fundsand generally care for and maintain anyportion of a cemetery entitled to endowmentcare any three lot owners whose lots are entitled to endowment care or any one lotowner whose lot is entitled to special careor the next of kin heirs at law or personalrepresentatives of such lot owners shallhave the right or the district attorney ofany county wherein is situated such lotsshall have the power by suit for mandatoryinjunction or for appointment of a receiverto sue for to take charge of and to expendsuch net income Such suit may be filed inthe circuit court of the county in which saidcemetery is located to compel the expenditure either by the cemetery authority or byany receiver so appointed by the court ofthe net income from such endowment carefund for the purposes set out in ORS 97010to 97130 97141 to 97450 and 97510 to979901955 c545 5

97830 Investment and reinvestment of

principal of endowed care funds use andapplication of income 1 The principal ofall funds for endowed care shall be investedfrom time to time reinvested and kept invested The principal of such funds shallnever be voluntarily reduced but shall bemaintained separate and distinct by thetrustee or trustees from all other funds except it shall be proper to commingle endowment care funds with special care funds Anybank or trust company qualified to engagein the trust business shall be governed bythe provisions of ORS 128020 and shall notbe required to secure the approval of theState Treasurer as to the types of investment and the manner of holding such trustfunds The net income earned shall beused solely for the general care and maintenance of the property entitled to endowment care in a cemetery for which suchfund is established and shall be applied tosuch general care and maintenance in suchmanner as the cemetery authority may fromtime to time determine to be for the bestinterests of such endowed property Suchnet income shall never be used for the improvement or embellishment of undevelopedproperty offered for sale

2 Endowment care funds shall not beused for any purpose other than to provide

through income only for the care stipulatedin the resolution bylaw or other action orinstrument by which the fund was establishedAmended by 1955c545 4

97835 Limitation of duties and liabilityof trustee The trustee shall have no dutywhatsoever to operate maintain or to supervise the general maintenance of any endowment fund cemetery and the trustee shallhave no duty whatsoever to enforce collection of any of the trust funds either from thepurchasers of lots or from the cemetery authority and the trustee shall have no dutywhatsoever to see to the application of thenet income after payment of the net incometo the cemetery authority The trustee shallbe entitled to rely without liability upon theaffidavit of the cemetery authority showingthe amount payable to the trustee as endowment care funds1955 c545 6

97840 Cemetery authority authorizedto receive and hold gifts of property Acemetery authority which has established anendowment care fund may take receive andhold as a part of or incident to the fundany property real personal or mixed bequeathed devised granted given or otherwise contributed to it for its endowmentcare fund

97850 Endowment and special care

funds are charitable The endowment andspecial care funds and all payments or contributions to them are expressly permittedas and for charitable and eleemosynary purposes Endowment care is a provision for thedischarge of a duty from the persons contributing to the persons interred and to beinterred in the cemetery and a provision forthe benefit and protection of the public bypreserving and keeping cemeteries from becoming unkempt and places of reproach anddesolation in the communities in which theyare situated

97860 Agreements for care 1 Uponpayment of the purchase price including theamount fixed as a proportionate contribution for endowed care there may be included in the deed of conveyance or by separateinstrument an agreement to care in accordance with the plan adopted for the cemetery and its appurtenances to the proportionate extent the income received by the

773

SUPERSEDED


cemetery authority from the contributionpermits

2 Upon the application of an owner ofany plot and upon the payment by him ofthe amount fixed as a reasonable and proportionate contribution for endowed care acemetery authority may enter into an agreement with him for the care of his plot andits appurtenances

97870 Unused and unimproved portionsof cemetery declared common nuisancesIn all cases where an incorporated association company religious society lodge municipality or other organized society or itssuccessor in interest or both have owned asite for a cemetery for more than 40 yearsand have during that period sold lots subdivisions of lots pieces or parcels of thecemetery for burial purposes and have notless than 25 years prior to June 14 1939adopted a rule by its members or governingboard requiring all deeds conveying lots orparcels thereof subsequent to the adoption ofsuch rule to contain a condition that suchlots or parcels shall be kept free and clearof weeds and brush by the grantees theirheirs and assigns and have adopted and arecomplying with a rule that all lots parcelsstreets and alleys the title to which is vestedin such proprietor shall be kept free andclear of weeds and brush by such proprietorand have prior to 1915 conveyed cemeterylots subdivisions of lots pieces or parcels ofthe cemetery by deeds of conveyance without restrictions contained therein and withoutany provision for permanent upkeep thereofand the grantee or party claiming throughhim has not used portions of such lots subdivisions of lots pieces or parcels of thecemetery for purposes of burial and has notkept them free of weeds or brush but hasallowed them to remain entirely unimprovedand unused for more than 20 years prior tothe adoption of the resolution provided forin ORS 97880 and such lots subdivisions oflots pieces and parcels of the cemetery areadjacent to improved parts thereof and byreason of their unimproved condition detractfrom the appearance of the cemetery andinterfere with the harmonious improvementthereof and furnish a place for the propagation of weeds and brush thereby becoming amenace to adjacent property such lots sudivisions of lots pieces and parcels of sucemetery which are unused and unimproveas aforesaid hereby are declared to be

common nuisance and contrary to publicpolicy

97880 Resolution declaring a nuisanceThe governing board of such incorporatedassociation company religious society lodgemunicipality or other organized society described in ORS 97870 may adopt a resolution declaring such unused and unimprovedportion of its cemetery as is described inORS 97870 a common nuisance and anabandoned and unused portion of such cemetery and may direct its officers to file thecomplaint described in ORS 97890

97890 Complaint 1 Upon the adoption of the resolution described in ORS97880 the officers of the cemetery association may file a complaint in the circuitcourt for the county in which the cemeteryis located against the owners holders orparties interested in such abandoned portionof its cemetery demanding that the courtrequire such owners holders or interestedparties to keep the premises clear of weedsand brush and in condition in harmony withother lots and if the owners holders or interested parties fail to appear in court andcomply with the order of the court demanding that the court make a decree declaringsuch portions of the cemetery a commonnuisance directing the governing board toabate the nuisance by clearing the premisesand keeping them clear of weeds and brushcreating alien upon such lots and parcelsin favor of the cemetery association or otherproprietor decreeing that the lien be foreclosed and the lots and parcels be sold inthe same manner as other sales upon execution are made and authorizing the governing board to become a purchaser thereof onbehalf of the association or the proprietor

2 In such suit any number of ownersof different lots subdivisions of lots piecesor parcels of the cemetery may be includedin the one suit

3 It is a sufficient designation of theproperty so abandoned and unimproved togive the lot number or portion thereof or adescription of the piece or parcel having nolot number together with the name of theowner thereof as appears on the record ofthe cemetery association

h 4 In addition to the names of the persons that appear on the records of the ceme

d tery association as the record owners ofa

774such unused and unimproved portions of the

SUPERSEDED


cemetery the plaintiff shall include as a defendant in his complaint the following Alsoall other persons unknown claiming anyright title estate lien or interest in the unused and unimproved portions of the cemetery described in the complaint

97900 Summons 1 Summons shallbe served upon all owners or holders whoare residents of this state in like manner asin service of summons in a civil action ifsuch owners and holders are known to thesheriff in the county in which the cemeteryis located If the defendants are not knownto the sheriff it is sufficient to serve theowners and holders whose names appear onthe tax rolls of the county for the year previous to that in which the suit is startedThe plaintiff is not required to mail a copyof the summons or complaint to nonresident defendants

2 All owners and holders of such unimproved lots whose names do not appearon the tax rolls as aforesaid as shown bythe return of the sheriff may be served bypublication in any legal newspaper publishedin the county in which the cemetery is located for four consecutive weeks upon returnof the sheriff that such owners and holdersare not known and cannot be served in hisjurisdiction

3 The published summons shall contain the names of the record owners asshown by the records of the cemetery association and also all other persons unknownclaiming any right title estate lien or interest in the unused and unimproved portions of the cemetery described in the complaint together with a brief description ofthe lot or subdivisions of lots pieces orparcels of the cemetery and a statement setting forth the order and decree described insubsection 1 of ORS 97890 for which theplaintiff has applied to the court in thecomplaint Such summons shall require allparties defendant to appear and show causewhy an order should not be made declaringthe unused and unimproved portions of thecemeteries to be a common nuisance directing the cemetery association or other proprietor to abate the nuisance creating a liethereon decreeing that it be foreclosed anddirecting that the unused and unimprovedportion of the cemetery be sold within fourweeks from and after the date of the firstpublication thereof

97910 Disuse as primafacie evidence ofabandonment of portion In all cases arisingunder ORS 97870 to 97900 the fact that theowner holder or interested party of the unused and unimproved portion of the cemetery has not for a term of 20 years or moreused the plot and has failed to keep it clearof weeds or brush is primafacie evidencethat the owner holder or interested partyhas abandoned it

97920 Decree declaring nuisance authorizing abatement and creating and foreclosing lien Upon the failure of the owner ofthe premises to comply with the order ofthe court requiring proper care of the premises or upon the failure of any of the defendants to appear and answer the complaint orupon the trial of the cause if the court findsthat the allegations of the complaint aresupported by the evidence and that the summons has been served as provided in ORS97900 the court may enter a decree in accordance with the allegations of the complaint and the provisions of subsection 1of ORS 97890


PENALTIES

97990 Penalties 1 Violation of ORS97160 is a misdemeanor and upon conviction is punishable by a fine not exceeding100

2 Every officer agent or employe ofthis state or of any county city or any othermunicipal subdivision thereof who wilfullyneglects to notify the Demonstrator of Anatomy of the existence of a body as requiredby ORS 97170 to 97210 or who refuses todeliver possession of such body according tothe provisions of ORS 97170 to 97210 orwho mutilates or permits any such body tobe mutilated so that it is not valuable foranatomical purposes or who refuses or neglects to perform any of the duties enjoinedupon him by ORS 97170 to 97210 is guiltyof a misdemeanor and upon conviction is punishable by a fine of not more than 50 foreach offense

3 Violation of ORS 97520 97530 or97540 is a misdemeanor

n 4 Any person association or corporation who operates a cemetery mausoleumor columbarium contrary to the provisionsof ORS 97020 to 97040 97110 to 9713097141 to 97150 97220 97310 to subsection1 of 97360 ORS 97440 97510 to 97560

775

SUPERSEDED


97710 97720 97810 97820 97830 and by a fine not exceeding 500 or by imprison97840 to 97860 is guilty of maintaining a ment in the county jail for not more thannuisance and upon conviction is punishable six months or both


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill andthat the sections in this chapter are correct copies of the enrolled sections with the exceptionof the changes in form permitted by ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon

Sam R Haleyon December 1 1961Legislative Counsel

ru

776

SUPERSEDED

Chapter 98


Lost Abandoned and Unclaimed Property Unordered Publications

9801098020

98030

98040

981

981

981981981

98198

981981982982982982

RIGHTS AND DUTIES OF FINDERS

Duties of finders of money or goodsRights of ownerFinders obligation to county if owner does

not appearLiability of noncomplying finder

DISPOSAL OF CONSIGNED OR BAILEDPROPERTY THAT IS UNCLAIMED

10 Record to be kept by consignee or bailee ofproperty

20 Notice to owner of receipt of property byconsignee or bailee

30 Right of custodian to sell property40 Notice of sale50 Affidavit by custodian when no response to

notice

60 Inventory and order to sell170 Sale

80 Delivery of proceeds to justice90 Disposal of proceeds by justice00 Procedure by county treasurer10 Payment to person proving ownership30 Sale of perishable property40 Fees allowed to justice of peace and con

stable or sheriff

98386 Deposit of funds98392 Claim for abandoned property paid or de

livered

98396 Determination of claim98402 Judicial action on determination98406 Election to take payment or delivery98412 Examination of records

98416 Proceeding to compel delivery of abandonedproperty

98422 Rules and regulations98426 Effect of actions taken prior to August 20

1957

98432 Uniformity of interpretation98436 Short title

UNORDERED PUBLICATIONS

98510 Unordered newspapers and periodicalsdeemed gifts

UNIFORM DISPOSITION OF UNCLAIMEDPROPERTY ACT

9830298306

98312

9831698322

98326

98332

98336

98342

98346

9835298356

9836298366983729837698382

Definitions

Property held by banking or financial organizations

Unclaimed funds held by life insurance corporations

Deposits and refunds held by utilitiesUndistributed dividends and distributions of

business associations

Property of business associations and banking or financial organizations held in thecourse of dissolution

Property held by fiduciariesProperty held by state courts and public of

ficers and agenciesMiscellaneous personal property held for an

other personReciprocity for property presumed aban

doned or escheated under the laws of another state

Report of abandoned propertyNotice and publication of lists of abandoned

propertyPayment or delivery of abandoned propertyRelief from liability by payment or deliveryIncome accruing after payment or deliveryPeriods of limitation not a bar

Sale of abandoned property

REMOVAL OF TREES OR LOGS FROMANOTHERS LAND COUNTY ROADS

OR STATE HIGHWAYS

98610 Recovery of any part of tree from privateproperty lost from a railroad or motorvehicle

98620 Effect of failure to remove logs98630 Landownersrights following removal of logs98640 Ownersduty to remove trees logs poles or

piling on state highways98642 Effect of failure to remove trees logs poles

or piling98644 ORS 98640 and 98642 inapplicable to cer

tain trees logs poles or piling98650 Owners duty to remove trees logs poles

or piling from county roads98652 Effect of failure to remove trees logs

poles or piling98654 ORS 98650 and 98652 inapplicable to cer

tain trees logs poles or piling and tocertain county roads

DISPOSITION OF MOTOR VEHICLESUNLAWFULLY PARKED ON PRIVATE

PARKING LOT98810 Unauthorized parking of motor vehicles on

private parking lot prohibited98812 Storage of unlawfully parked motor ve

hicle in public garage or parking lotlien of garagekeeper or parking lot operator

98814 Sale of motor vehicle to satisfy lien noticeof sale

98816 Limitations on lien98818 Preference of lien

PENALTIES

98991 Penalties

777

SUPERSEDED

CH 98 CROSS

CROSS REFERENCES

Boats owners to report loss or abandonment 488750Estrays Ch 607Property of deceased disposal of by coroner or sheriff

146250 to 146280 146590 146610Unclaimed stolen or embezzled property disposal

of 142040Wages collected by labor commissioner disposition

if unclaimed 65240598010

Finding lost boat report 48812498110

Goods abandoned by hotel guest disposal of 69905098306

Contents of deposit box in liquidated bank 711580Deposits remaining unclaimed six months after no

tice escheat to State of Oregon 711225Disposal of unclaimed funds of liquidated savings

and loan association 722740 722765Unclaimed deposits in liquidated banks 711590

98322

Unclaimed cooperative corporation distributions andpayments 62425 62705

98326

Disposition of unclaimed assets upon dissolution ofBusiness corporation 57625Nonprofit corporation 61595

98336

Money of unidentified dead persons disposition of146600

98396

Administrative procedure and rules of state agencies Ch 183

98402

Appeal bond not needed by state county or city22010

98416

Actions available when bank has escheated deposits 120120

98422

Rules and regulations making and filing Ch 18398610

Branded logs presumption of ownership 532040County removing or destroying drifts and drifting

materials 549720Log patrols and boom companies disposition of stray

logs boom sticks and boom chains 532510 to532710

Recovery of tree parts cast on anothers land byhigh water 99050

98814

Transfer of motor vehicle by operation of law481415

u

11778

SUPERSEDED

LOST AND UNCLAIMED PROPERTY UNORDERED PUBLICATIONS 98140

RIGHTS AND DUTIES OF FINDERS

98010 Duties of finders of money orgoods 1 If any person finds money orgoods valued at 5 or more and if the ownerthereof is unknown such person shall within five days after finding the money or goodsgive notice of the finding in writing to thecounty clerk of the county in which theproperty was found He shall also withinsuch five days cause a notice thereof to beposted in two public places in the county

2 Every finder of lost goods valued at15 or more shall in addition to the requirements of subsection 1 of this sectioncause notice of the finding to be published ina newspaper published in the county wherethe goods were found within 15 days afterthe finding If no newspaper is published inthat county notice of the finding shall beposted in three of the most public placesin the county If no person appears to claimthe goods who may be entitled thereto thefinder shall within two months after findingsuch goods and before injuring the goodsprocure an appraisal thereof by a justice ofthe peace of his county which appraisalshall be certified to by the justice and filedin the office of the county clerk of suchcounty

98020 Rights of owner If the owner oflost money or goods appears within one yearafter notice is given to the clerk as providedin ORS 98010 and establishes his rightthereto he shall have restitution of the lostproperty or its value upon paying all thecosts and charges thereon including a reasonable compensation to the finder for histrouble

for the same The finder shall also be re

sponsible to the owner for the lost money orgoods


DISPOSAL OF CONSIGNED OR BAMEDPROPERTY THAT IS UNCLADID

98110 Record to be kept by consigneeor bailee of property When personal property is consigned to or deposited with anyforwarding merchant wharf warehousetavern keeper or the keeper of any depotfor the reception and storage of trucks baggage merchandise or other personal propertythe consignee or bailee shall immediatelycause to be entered in a book kept by him adescription of such property with the dateof its reception

98120 Notice to owner of receipt ofproperty by consignee or bailee If personalproperty left with a consignee or bailee referred to in ORS 98110 was not left for the

purpose of being forwarded or disposed ofaccording to directions received by the consignee or bailee at or before the time of itsreception and if the name and residence ofthe owner of the property is known to theperson having the property in his possessionhe shall immediately notify the owner byletter directed to him and deposited in thepostoffice of the reception of such property

98130 Right of custodian to sell property If personal property deposited with aconsignee or bailee as mentioned in ORS98110 or 98120 is not claimed and taken

away within one year after the time it wasreceived the person having possession thereof may at any time thereafter proceed tosell the property in the manner provided inORS 98140 to 98240

98030 Finders obligation to county ifowner does not appear If no owner appearswithin one year as provided in ORS 98020the finder shall pay onehalf the value ofthe lost money or goods after deducting alllegal charges to the treasurer of the county where the property was found If thefinder neglects to pay the same on demandafter the expiration of such time the samemay be sued for and recovered by thetreasurer in the name of the county

98040 Liability of noncomplying finderIf any finder of lost money or goods valuedat 5 or upwards fails to comply with theprovisions of ORS 98010 and 98030 heshah be liable for the full value of the moneyor goods onehalf to the use of the countyand the other half to the person who sues

98140 Notice of sale Before propertyshall be sold pursuant to ORS 98130 atleast 60 days notice of sale shall be giventhe owner of the property if his name andresidence are known either personally orby mail or by leaving a notice at his residence or place of doing business or if thename and residence of the owner is not

known a notice shall be published containing a description of the property for sixweeks successively in a newspaper publishedin the county where the property was deposited If there is no newspaper publishedin that county then the notice shall be pub

79

SUPERSEDED


lished in a newspaper nearest thereto in thestate The last publication of the notice shallbe at least 18 days prior to the time of sale

98150 Affidavit by custodian when noresponse to notice If the owner or personentitled to the property to be sold pursuantto ORS 98130 shall not take it away andpay the charges thereon after 60 days noticeis given the person having possession thereof his agent or attorney shall deliver to ajustice of the peace of the county where theproperty was received an affidavit settingforth a description of the property remaining unclaimed the time of its reception thepublication of the notice and whether theowner of the property is known or unknown

98160 Inventory and order to sell Upon the delivery to him of the affidavit asprovided in ORS 98150 the justice shallcause the property to be examined in hispresence and a true inventory thereof to bemade He shall annex to such inventory anorder under his hand that the property therein described be sold at public auction by anyconstable of the constable district where the

property is located or if there is no constable then by the county sheriffAmended by 1963 c228 1

98170 Sale The constable or sheriff

receiving the inventory and order providedfor in ORS 98160 shall give 10 days noticeof the sale by posting written notices thereof in three or more places in such constabledistrict or in the county and sell the property at public auction to the highest bidderin the same manner as provided by law forsales under execution from justices courtsAmended by 1963 c228 2

98180 Delivery of proceeds to justiceUpon completing the sale provided for inORS 98170 the constable or sheriff makingthe sale shall indorse upon the order provided for in ORS 98160 a return of his proceedings He shall deliver the order to thejustice together with the inventory and theproceeds of sale after deducting his feesAmended by 1963 c228 31

balance if there is any he shall immediatelypay over to the treasurer of the county inwhich the property was sold and deliver astatement therewith containing a descriptionof the property sold the gross amount ofthe sale and the costs charges and expensespaid to each person

98200 Procedure by county treasurerThe county treasurer shall make an entryof the amount received by him and the timewhen received and shall file in his officethe statement delivered to him by the justicepursuant to ORS 98190

98210 Payment to person proving ownership If the owner of the property sold orhis legal representative furnishes satisfactory evidence to the treasurer of his ownership of the property deposited in the countytreasury pursuant to ORS 98190 he shallbe entitled to receive from the treasurer the

amount deposited with himAmended by 1957c670 30

Note See notes for ORS 98302 and98991

98220 Repealed by 1957c670 37

98230 Sale of perishable property Perishable property consigned or left as mentioned in ORS 98110 if not reclaimed within30 days after it was left may be sold bygiving 10 days notice thereof The sale shallbe conducted and the proceeds of the saleshall be applied as provided in ORS 98170to 98210 Any property in a state of decayor manifestly liable to immediately becomedecayed may after inspection be summarilysold by order of a justice of the peace asprovided in ORS 98160

98240 Fees allowed to justice of peaceand constable or sheriff A justice of thepeace shall receive 3 for each days servicerendered pursuant to ORS 98160 to 98230and a constable or sheriff shall receive the

same fees as are allowed by law for salesupon an execution and 10 cents a folio formaking an inventory of propertyAmended by 1963 e228 41


98190 Disposal of proceeds by justice UNIFORM DISPOSITION OF UNCLAIMEDFrom the proceeds of the sale provided for PROPERTY ACTin ORS 98170 the justice shall pay all legalcharges that have been incurred in relation 98302 Definitions As used in this Actto the property or a ratable proportion of unless the context otherwise requireseach charge if the proceeds of the sale are 1 Banking organization means anynot sufficient to pay all the charges and the bank trust company savings bank or safe

780

SUPERSEDED

CJ

1u

LOST AND UNCLAIMED PROPERTY

deposit company engaged in business in thisstate

2 Board means the State Land Board3 Business association means any

corporation other than a public corporation joint stock company business trustpartnership or any association for businesspurposes of two or more individuals

4 Financial organization means anysavings and loan association building andloan association credit union or investmentcompany engaged in business in this state

5 Holder means any person in possession of property subject to this Act belonging to another or who is trustee in caseof a trust or is indebted to another on anobligation subject to this Act

6 Life insurance corporation meansany association or corporation transactingwithin this state the business of insurance

on the lives of persons or insurance appertaining thereto including but not by way oflimitation endowments and annuities

7 Owner means a depositor in caseof a deposit a beneficiary in case of a trusta creditor claimant or payee in case ofother chores in action or any person havinga legal or equitable interest in property subject to this Act or his legal representative

8 Person means any individual business association government or politicalsubdivision public corporation public authority estate trust two or more personshaving a joint or common interest or anyother legal or commercial entity

9 Utility means any person whoowns or operates within this state for publicuse any plant equipment property franchise or license for the transmission of communications or the production storagetransmission sale delivery or furnishingof electricity water steam or gas1957c670 3

Note No substitution of specific ORS sectionnumbers for the words this Act has been made in

the above section or in the other sections of chapter670 Oregon Laws 1957 Chapter 670 Oregon Laws1957 consists of new sections which are compiled asORS 98302 to 98436 and 98991 and amendments tothe following previously existing ORS sections ORS57625 98210 327405 699050 711225 and 722740

PUBLICATIONS 98306

that may lawfully be withheld unless theowner has within seven years

a Increased or decreased the amountof the deposit or presented the passbook orother similar evidence of the deposit for thecrediting of interest or

b Corresponded in writing with thebanking organization concerning the depositor

c Otherwise indicated an interest inthe deposit as evidenced by a memorandumon file with the banking organization

2 Any funds paid in this state towardthe purchase of shares or other interest ina financial organization or any deposit madetherewith in this state and any interest ordividends thereon excluding any chargesthat may lawfully be withheld unless theowner has within seven years

a Increased or decreased the amountof the funds or deposit or presented an appropriate record for the crediting of interestor dividends or

b Corresponded in writing with thefinancial organization concerning the fundsor deposit or

c Otherwise indicated an interest in thefunds or deposit as evidenced by a memorandum on file with the financial organization

3 Any sum payable on checks certifiedin this state or on written instruments issued

in this state on which a banking or financialorganization is directly liable including byway of illustration but not of limitation certificates of deposit drafts and travelerschecks that has been outstanding for morethan seven years from the date it was payable or from the date of its issuance if payable on demand unless the owner has withinseven years corresponded in writing withthe banking or financial organization concerning it or otherwise indicated an interestas evidenced by a memorandum on file withthe banking or financial organization

4 Except as provided in ORS 711580any funds or other personal property tangible or intangible removed from a safe deposit box or any other safekeeping repository or agency or collateral deposit box inthis state on which the lease or rental periodhas expired due to nonpayment of rentalcharges or other reason or any surplusamounts arising from the sale thereof pursuant to law that have been unclaimed bythe owner for more than seven years from

98306 Property held by banking or financial organizations The following property held or owing by a banking or financialorganization is presumed abandoned

1 Any demand savings or maturedtime deposit made in this state with a banking organization together with any interestor dividend thereon excluding any charges

781

SUPERSEDED


the date on which the lease or rental periodexpired1957 c670 4

98310 Repealed by 1957 c670 37

98312 Unclaimed funds held by life insurance corporations 1 Unclaimed fundsas defined in this section held and owing bya life insurance corporation shall be presumed abandoned if the last known addressaccording to the records of the corporationof the person entitled to the funds is withinthis state If a person other than the insuredor annuitant is entitled to the funds and no

address of such person is known to the corporation or if it is not definite and certainfrom the records of the corporation whatperson is entitled to the funds it is presumedthat the last known address of the personentitled to the funds is the same as the lastknown address of the insured or annuitantaccording to the records of the corporation

2 Unclaimed funds as used in thissection means all moneys held and owingby any life insurance corporation unclaimedand unpaid for more than seven years afterthe moneys became due and payable as established from the records of the corporation under any life or endowment insurancepolicy or annuity contract which has matured or terminated A life insurance policynot matured by actual proof of the death ofthe insured is deemed to be matured and theproceeds thereof are deemed to be due andpayable if such policy was in force whenthe insured attained the limiting age underthe mortality table on which the reserve isbased unless the person appearing entitledthereto has within the preceding seven years

a Assigned readjusted or paid premiums on the policy or subjected the policy toloan or

b Corresponded in writing with the lifeinsurance corporation concerning the policyMoneys otherwise payable according to therecords of the corporation are deemed dueand payable although the policy or contracthas not been surrendered as required1957c670 5

98316 Deposits and refunds held byutilities The following funds held or owingby any utility are presumed abandoned

1 Any deposit made by a subscriber

the person appearing on the records of theutility entitled thereto for more than sevenyears after the termination of the servicesfor which the deposit or advance paymentwas made

2 Any sum which a utility has beenordered to refund and which was receivedfor utility services rendered in this statetogether with any interest thereon less anylawful deductions that has remained unclaimed by the person appearing on the records of the utility entitled thereto for morethan seven years after the date it becamepayable in accordance with the final determination or order providing for the refund1957c670 6

98320 Repealed by 1957c670 37

98322 Undistributed dividends and distributions of business associations Anystock or other certificate of ownership orany dividend profit distribution interestpayment on principal or other sum held orowing by a business association for or to ashareholder certificate holder memberbondholder or other security holder or aparticipating patron of a cooperative whohas not claimed it or corresponded in writing with the business association concerningit within seven years after the date prescribed for payment or delivery is presumedabandoned if

1 It is held or owing by a business association organized under the laws of or created in this state or

2 It is held or owing by a business association doing business in this state butnot organized under the laws of or createdin this state and the records of the businessassociation indicate that the last known address of the person entitled thereto is inthis state1957c670 71

98326 Property of business associationsand banking or financial organizations heldin the course of dissolution All intangiblepersonal property distributable in the courseof a voluntary dissolution of a business association banking organization or financialorganization organized under the laws of orcreated in this state that is unclaimed bythe owner within two years after the datefor final distribution is presumed abandoned1957 c670 81

with a utility to secure payment for or any 98330 Repealed by 1957 c670 X37sum paid in advance for utility services tobe furnished in this state less any lawful 98332 Property held by fiduciaries Alldeductions that has remained unclaimed by intangible personal property and any income

782

SUPERSEDED


or increment thereon held in a fiduciary capacity for the benefit of another person ispresumed abandoned unless the owner haswithin seven years after it becomes payableor distributable increased or decreased theprincipal accepted payment of principal orincome corresponded in writing concerningthe property or otherwise indicated an interest as evidenced by a memorandum onfile with the fiduciary

1 If the property is held by a bankingorganization or a financial organization orby a business association organized underthe laws of or created in this state or

2 If it is held by a business associationdoing business in this state but not organized under the laws of or created in this

state and the records of the business association indicate that the last known address

of the person entitled thereto is in this state

presumed abandoned in this state and subject to this Act if

1 It may be claimed as abandoned orescheated under the laws of such other

state and2 The laws of such other state make

reciprocal provision that similar specificproperty is not presumed abandoned or escheatable by such other state when held foror owed or distributable to an owner whose

last known address is within this state by aholder who is subject to the jurisdiction ofthis state

1957c670 12Note See note for ORS 98302

98350 Repealed by 1957e670 371

98352 Report of abandoned property1 Every person holding funds or otherproperty tangible or intangible presumed

b d d d th A t hall re ort to theor

3 If it is held in this state by any otherperson1957c670 9

98336 Property held by state courtsand public officers and agencies All intangible personal property held for the owner byany court public corporation public authority or public officer of this state or a political subdivision thereof that has remainedunclaimed by the owner for more than sevenyears is presumed abandoned1957 c670 101

98340 Repealed by 1957 c670 371

98342 Miscellaneous personal propertyheld for another person All intangible personal property not otherwise covered by thisAct including any income or incrementthereon and deducting any lawful chargesthat is held or owing in this state in theordinary course of the holders business andhas remained unclaimed by the owner formore than seven years after it became payable or distributable is presumed abandoned1957 c670 111

Note See note for ORS 98302

98346 Reciprocity for property presumed abandoned or escheated under thelaws of another state If specific propertywhich is subject to the provisions of ORS98306 98322 98326 98332 and 98342 isheld for or owed or distributable to an ownerwhose last known address is in another state

by a holder who is subject to the jurisdictionof that state the specific property is not

a an one un er is c s p

board with respect to the property as hereinafter provided

2 The report shall be verified and shallinclude

a The name if known and last knownaddress if any of each person appearingfrom the records of the holder to be the own

er of any property of value of 3 or morepresumed abandoned under this Act

b In case of unclaimed funds of lifeinsurance corporations the full name of theinsured or annuitant and his last known ad

dress according to the life insurance corporations records

c The nature and identifying numberif any or description of the property and theamount appearing from the records to bedue except that items of value under 3 eachmay be reported in aggregate

d The date when the property becamepayable demandable or returnable and thedate of the last transaction with the owner

with respect to the property ande Other information which the board

prescribes by rule as necessary for the administration of this Act

3 If the person holding property presumed abandoned is a successor to other persons who previously held the property forthe owner or if the holder has changed hisname while holding the property he shallfile with his report all prior known namesand addresses of each holder of the property

4 The report shall be filed before November 1 of each year as of June 30 nextpreceding but the report of life insurancecorporations shall be filed before May 1 of

83

SUPERSEDED


each year as of December 31 next precedingThe board may postpone the reporting dateupon written request by any person requiredto file a report

5 If the holder of property presumedabandoned under this Act knows the whereabouts of the owner and if the owners claim

has not been barred by the statute of limitations the holder shall before filing theannual report communicate with the ownerand take necessary steps to prevent abandonment from being presumed The holdershall exercise due diligence to ascertain thewhereabouts of the owner

6 Verification if made by a partnership shall be executed by a partner if madeby an unincorporated association or privatecorporation by an officer and if made bya public corporation by its chief fiscalofficer

7 The initial report filed under this Actshall include all items of property presumedabandoned under this Act which could have

been subject to the provisions as compiledin the 1953 part of repealed ORS 98310 to98440 and 98710 had said repealed sectionsremained in effect Items of property presumed abandoned under this Act which werenot or could not have been subject to theprovisions as compiled in the 1953 part ofrepealed ORS 98310 to 98440 and 98710must be included in the initial report underthis Act if the time period resulting in thepresumption of abandonment commencedrunning after June 30 1949 Items of property presumed abandoned under this Act onAugust 20 1957 which are not required tobe included in the initial report may be included in the initial or any subsequent report if so included the holder thereof shallbe entitled to the protective provisions ofORS 983661957c670 13


98356 Notice and publication of lists ofabandoned property 1 Within 120 daysfrom the filing of the report required byORS 98352 the board shall cause notice tobe published at least once each week for twosuccessive weeks in an English language

principal place of business within this state2 The published notice shall be entitled

Notice of Names of Persons Appearing toBe Owners of Abandoned Property andshall contain

a The names in alphabetical order andlast known addresses if any of personslisted in the report and entitled to noticewithin the county as hereinbefore specified

b A statement that information con

cerning the amount or description of theproperty and the name and address of theholder may be obtained by any persons possessing a legal or equitable interest in theproperty by addressing an inquiry to theboard

c A statement that if proof of claim isnot presented by the owner to the holder andif the owners right to receive the propertyis not established to the holderssatisfactionwithin 65 days from the date of the secondpublished notice the abandoned propertywill be placed not later than 85 days aftersuch publication date in the custody of theboard to whom all further claims mustthereafter be directed

3 The board is not required to publishin such notice any item of less than 50unless it deems such publication to be in thepublic interest

4 Within 120 days from the receipt ofthe report required by ORS 98352 the boardshall mail a notice to each person having anaddress listed therein who appears to beentitled to property of the value of 50 ormore presumed abandoned under this Act

5 The mailed notices shall contain

a A statement that according to a report filed with the board property is beingheld to which the addressee appears entitled

b The name and address of the personholding the property and any necessary information regarding changes of name andaddress of the holder

c A statement that if satisfactoryproof of claim is not presented by the ownerto the holder by the date specified in thepublished notice the property will be placedin the custody of the board to whom allfurther claims must be directed1957 c670 141

newspaper of general circulation in the coun Note See note for ORS 98302ty in this state in which is located the last

98360 Repealed by 1957 c670 37known address of any person to be named inthe notice If no address is listed or if the 98362 Payment or delivery of abanaddress is outside this state the notice shall doned property Every person who has filedbe published in the county in which the a report as provided by ORS 98352 shallholder of the abandoned property has his within 20 days after the time specified in

784

is

SUPERSEDED

C

LOST AND UNC AIMED PROPERTY PUBLICATIONS 98386

ORS 98356 for claiming the property fromthe holder pay or deliver to the board allabandoned property specified in the reportexcept that if the owner establishes hisright to receive the abandoned property tothe satisfaction of the holder within the time

specified in ORS 98356 or if it appears thatfor some other reason the presumption ofabandonment is erroneous the holder neednot pay or deliver the property which willno longer be presumed abandoned to theboard but in lieu thereof shall file a verifiedwritten explanation of the proof of claim orof the error in the presumption of abandonment1957 c670 15

98366 Relief from liability by paymentor delivery Upon the payment or deliveryof abandoned property to the board thestate shall assume custody and shall be responsible for the safekeeping thereof Anyperson who pays or delivers abandoned property to the board under this Act is relievedof all liability to the extent of the value ofthe property so paid or delivered for anyclaim which then exists or which thereafter

may arise or be made in respect to the property1957 c670 161


98370 Repealed by 1957c670 37

98372 Income accruing after paymentor delivery When property is paid or delivered to the board under this Act the owner is not entitled to receive income or other

increments accruing thereafter1957c670 171


98376 Periods of limitation not a bar

The expiration of any period of time specified by statute or court order during whichan action suit or proceeding may be commenced or enforced to obtain payment of aclaim for money or recovery of propertyshall not prevent the money or propertyfrom being presumed abandoned propertynor affect any duty to file a report requiredby this Act or to pay or deliver abandonedproperty to the board provided that thissection shall not affect any property interests which became vested prior to August 2019571957c670 181


98380 Repealed by 1957c670 371

98382 Sale of abandoned property 1All abandoned property other than moneydelivered to the board under this Act shall

be sold by it to the highest bidder at publicsale in whatever city in the state affords inits judgment the most favorable market forthe property involved The board may declinethe highest bid and reoffer the property forsale if it considers the price bid insufficientIt need not offer any property for sale if inits opinion the probable cost of sale exceedsthe value of the property

2 Any sale held under this section shallbe preceded by a single publication of noticethereof at least three weeks in advance of

sale in an English language newspaper ofgeneral circulation in the county where theproperty is to be sold

3 The purchaser at any sale conductedby the board pursuant to this Act shall receive title to the property purchased freefrom all claims of the owner or prior holderthereof and of all persons claiming throughor under them The board shall execute all

documents necessary to complete the transfer of title1957 e670 19


98386 Deposit of funds 1 All fundsreceived under this Act including the proceeds from the sale of abandoned propertyunder ORS 98382 shall forthwith be deposited by the board in the Common SchoolFund Account with the State Treasurer

Before making the deposit it shall record thename and last known address of each personappearing from the holders reports to beentitled to the abandoned property and ofthe name and last known address of each

insured person or annuitant and with respect to each policy or contract listed in thereport of a life insurance corporation itsnumber the name of the corporation andthe amount due

2 Before making any deposit to thecredit of the Common School Fund Accountthe board may deduct

a Any costs in connection with sale ofabandoned property

b Any costs of mailing and publicationin connection with any abandoned propertyand

c Reasonable service charges1957 c670 201


98390 Repealed by 1957c670 371785

SUPERSEDED


98392 Claim for abandoned propertypaid or delivered Any person claiming aninterest in any property delivered to thestate under this Act or under the provisionsof ORS 98310 to 98440 as compiled in the1953 part may file a claim thereto or tothe proceeds from the sale thereof on theform prescribed by the board1957 c670 211


98396 Determination of claim 1The board shall consider any claim filed under this Act and may hold a hearing andreceive evidence concerning it If a hearingis held it shall prepare a finding and a decision in writing on each claim filed statingthe substance of any evidence heard by itand the reasons for its decision The decision

shall be a public record

2 If the claim is allowed the boardshall make payment forthwith1957c670 22


98400 Repealed by 1957 c670 37

98412 Examination of records The

board may at reasonable times and uponreasonable notice examine the records of anyperson if it has reason to believe that suchperson has failed to report property thatshould have been reported pursuant to thisAct1957c670 251


98416 Proceeding to compel delivery ofabandoned property If any person refusesto deliver property to the board as requiredunder this Act it shall bring a suit or actionin a court of appropriate jurisdiction to enforce such delivery1957c670 26


98420 Repealed by 1957c670 37

98422 Rules and regulations The

board hereby is authorized to make necessary rules and regulations to carry out theprovisions of this Act1957c670 271


98402 Judicial action on determination

Any person aggrieved by a decision of theboard or as to whose claim the board has

failed to act within 90 days after the filingof the claim may commence an action in anappropriate court to establish his claimThe proceeding shall be brought within 60days after the decision of the board or within 180 days from the filing of the claim if theboard fails to act The action shall be tried

de novo without a jury1957c670 231

98406 Election to take payment or delivery The board after receiving reports ofproperty deemed abandoned pursuant to thisAct may decline to receive any propertyreported which it deems to have a value lessthan the cost of giving notice and holdingsale or it may if it deems it desirable because of the small sum involved postponetaking possession until a sufficient sum accumulates Unless the holder of the propertyis notified to the contrary within 120 daysafter filing the report required under ORS98352 the board shall be deemed to have

elected to receive the custody of the property1957 c670 241


98410 Repealed by 1957c670 371

98426 Effect of actions taken prior toAugust 20 1957 1 This Act shall not apply to any property that has been presumedabandoned or escheated under the laws of

another state prior to August 20 19572 The provisions as compiled in the

1953 part of ORS 98310 to 98380 9841098710 and 98990 shall remain in effect withregard to property in the hands of anyholder or custodian which should have been

reported or accounted under said repealedsections prior to August 20 19571957 670 28 351


98430 Repealed by 1957 c670 37

98432 Uniformity of interpretationThis Act shall be so construed as to effect

uate its general purpose to make uniformthe law of those states which enact the

Uniform Disposition of Unclaimed PropertyAct1957c670 21


98436 Short title This Act may becited as the Uniform Disposition of Unclaimed Property Act1957 c670 11


786

98440 Repealed by 1957c670 371


is

0

SUPERSEDED


is UNORDERED PUBLICATIONS

98510 Unordered newspapers and periodicals deemed gifts If any owner controller editor or proprietor of any newspaper orperiodical mails or sends a paper or periodical to any person in this state without firstreceiving an order for the newspaper orperiodical from such person the newspaperor periodical is deemed to be a gift and nodebt or obligation shall accrue against suchperson


REMOVAL OF TREES OR LOGS FROMANOTHERSLAND COUNTY ROADS

OR STATE IMGHWAYS

98610 Recovery of any part of treefrom private property lost from a railroador motor vehicle Any person may enterupon private property where any part of afallen tree belonging to or under the controlof the person has been lost from a railroador motor vehicle for the purpose of recovering and reclaiming the same Before entering the land he shall post a bond with thePublic Utility Commissioner to be ap

proved by the commissioner in such sum asthe commissioner may provide The bondshall run to the Public Utility Commissioner to insure to any landowner the payment of any damage resulting from removalor reclaiming of such property The ownerof the land shall be compensated for anydamages resulting from the removal or fordamage to his property caused by any partof a felled tree falling from motor vehiclesor railroads

98620 Effect of failure to remove logs1 If any person fails to remove and reclaim logs timber or any part of a fallentree within one year after it is lost uponprivate property as provided in ORS 98610it is deemed abandoned and the title theretovests in the person entitled to the possessionof the land upon which the same is found

2 If any part of a felled tree whichfalls from a log truck or a railroad is notremoved from the land within seven daysafter written notice from the owner of theland to remove the same title to that partof the felled tree is forfeited and shall vestin the owner of the land

any landowner mentioned in ORS 98610 todetermine the damages mentioned in ORS98610 resulting to the landowner and require the payment thereof In lieu of suchapplication for award of damages the landowner may pursue an action at law for suchdamages or sue on the bond provided for inORS 98610 in the circuit court of the countyin which the land is situatedAmended by 1957c459 21

98640 Owners duty to remove treeslogs poles or piling deposited on state highways 1 No person shall place or deposit anytrees timber logs poles or piling upon theright of way of any state highway or upon anyreal property adjacent thereto which is ownedby the state by and through its State Highway Commission except with permission ofany duly authorized weighmaster or peaceofficer given in connection with the removalof portions of loads which removal is pursuant to ORS 483534

2 Any trees timber logs poles or pilingso placed or deposited whether pursuant tosaid permission of a weighmaster or peaceofficer or accidentally or in violation of thissection or which have fallen dropped or beenblown upon said right of way or said adjacentproperty shall be removed by the ownerthereof within a period of not more than 30

153c312 11

98642 Effect of failure to remove trees

logs poles or piling Any trees timber logspoles or piling which remain for a period ofmore than 30 days upon the right of way ofany state highway or upon real property adjacent thereto which is owned by the state byand through its State Highway Commissionshall be conclusively presumed abandonedand title thereto shall vest in the state by andthrough its State Highway Commission andthe commission is hereby authorized to remove destroy sell or otherwise dispose of thesame

1953 c312 2

98644 ORS 98640 and 98642 inapplicable to certain trees logs poles and pilingThe provisions of ORS 98640 and 98642 shallnot apply to trees timber logs poles or pilingwhich have been placed or deposited or allowed to remain upon the right of way of astate hi hwa or real o erty adjacent thereg Y Pr P

is 98630 Landownersrights following re to under the provisions of a permit grantedmoval of logs The Public Utility Commis by the State Highway Commission nor tosioner has the power upon application of poles erected upon the right of way of a state

787

SUPERSEDED


highway for the purpose of carrying telegraph telephone or electric lines or wires1953 c312 31

98650 Owners duty to remove treeslogs poles or piling deposited on county roads1 No person shall place or deposit anytrees timber logs poles or piling upon theright of way of any county road except withpermission of any duly authorized weighmaster or peace officer given in connection withthe removal of portions of loads which removal is pursuant to ORS 483534

2 Any trees timber logs poles or pilingso placed or deposited accidentally or in violation of this section or which have fallendropped or been blown upon said right of wayshall be removed by the owner thereof withina period of not more than 30 days1953 c339 i

98652 Effect of failure to remove treeslogs poles or piling Any trees timber logspoles or piling which remain for a period ofmore than 30 days upon the right of way ofany county road shall be conclusively presumed abandoned and title thereto shall vestin the county having jurisdiction over suchcounty road and the county court or boardof county commissioners of said county mayremove destroy sell or otherwise dispose ofthe same1953 c339 21

98654 ORS 98650 and 98652 inapplioable to certain trees logs poles or piling anto certain county roads The provisions oORS 98650 and 98652 shall not applytrees timber logs poles or piling which havbeen placed or deposited or allowed to remaupon the right of way of a county road undethe provisions of a permit granted by thecounty court or board of county commissioners having jurisdiction over said county roadnor to poles placed upon the right of way of acounty road under authority of ORS 758010or 758020 nor to any county road which ignot maintained for public travel by the countycourt or board of county commissioners of thecounty in which the road is located1953c339 3


98710 Repealed by 1957c670 37


DISPOSITION OF MOTOR VEHICLESUNLAWFULLY PARKED ON PRIVATE

PARKING LOT

98810 Unauthorized parking of motorvehicle on private parking lot prohibited Noperson shall without the permission of theowner lessee or person firm or corporationin lawful possession of any private propertyused for motor vehicle parking leave or parkany motor vehicle thereon if there is in plainview on such private property a sign prohibiting public parking thereon or restricting parking thereon1953 c575 1

98812 Storage of unlawfully parkedmotor vehicle in public garage or parking lotlien of garagekeeper or parking lot operator1 The owner lessee or person firm or corporation in lawful possession of private property upon which a motor vehicle has been leftor parked in violation of ORS 98810 mayafter notice to the office of the city policewherein said motor vehicle is parked have saidmotor vehicle towed off said private propertyand placed in storage at a public garage orpublic parking lot

2 The garagekeeper or public parkingoperator shall be entitled to a lien for his justand reasonable charges on said motor vehicleand may retain possession thereof until thejust and reasonable charges for the towagecare and storage of said motor vehicle havebeen paid1953 c575 21

f98814 Sale of motor vehicle to satisfy

lien notice of sale 1 If such just and reasonable charges be not paid within 60 days

e

mafter they have begun to accrue the garagekeeper or public parking operator having such

r lien may proceed to sell such motor vehicleat public auction and apply the proceeds ofsuch sale first to the payment of the expenes of said sale including 10 days storage second to the discharge of said lien andthird the balance if any to the county clerkof the county in which such sale is made tobe held by said county clerk in trust for theowner of said vehicle Such sale must be heldin the county where said vehicle was left orparked

2 Before any sale is made notice thereofmust be given by registered mail to the legalowner as appears on the motor vehicle registration card and to any other person whoseinterest is shown in the motor vehicle recordsof the Department of Motor Vehicles Said

788

J

SUPERSEDED


registered notice must be mailed to the abovementioned parties at least 10 days prior tosale which notice shall be directed to theabove mentioned party or parties at his ortheir lastknown address if known and alsoby posting notice thereof in three publicplaces in said county one of which shall beat or near the front door of the county courthouse of said county for 10 days prior tothe day of sale

3 Said notice shall contain a particulardescription of the vehicle to be sold the nameof the owner or reputed owner thereof theamount due on said lien and the time andplace of said sale1953 c575 4

98816 Limitations on lien No garagekeeper or public parking operator shall beentitled to a lien for storage covering a periodin excess of 15 days unless within such periodhe shall have given notice of the location ofthe motor vehicle by registered mail to thelegal owner as appears on the motor vehicleregistration card and to any other personwhose interest is shown in the motor vehicle

records of the Department of Motor Vehicles In no event shall such garagekeeper or

public parking operator be entitled to a lienfor storage for a period in excess of 70 days1953 c575 51

98818 Preference of lien The lien cre

ated by ORS 98812 shall have preference overany and all other liens or encumbrances uponsuch motor vehicle1953 c575 3


PENALTIES

98990 Repealed by 1957 c670 37

98991 Penalties 1 Any person whowilfully fails to render any report or perform other duties required under this Act isguilty of a misdemeanor

2 Any person who wilfully refuses topay or deliver abandoned property to theboard as required under this Act is guiltyof a misdemeanor1957c670 36

Note No substitution of specific ORS sectionnumbers for the words this Act has been made inthe above section or in the other sections of chapter670 Oregon Laws 1957 Chapter 670 Oregon Laws1957 consists of new sections which are compiled asORS 98302 to 98436 and 98991 and amendments tothe following previously existing ORS sections ORS57625 98210 327405 699050 711225 and 722740


is


789

SUPERSEDED

790

SUPERSEDED


Property Removed by High Water

99010 Procedure for reclaiming Property Pfdon anthersland by high water

99020 Oath of arbitrators99030 procedure when five or more claimants99040 Entry to reclaim not a trespass

99050 Recovery of any part of tree from privateproperty

99060 Effect of failure to remove logs from anothers land

99070 Landowners rights following removal oflogs

CROSS REFERENCES

Boats owners to report loss or abandonment488750

Branded logs presumption as to ownership 532040County removing or destroying drifts and drifting

materials 549720Finding boat lost or adrift report required 488124

Log patrols and booming companies disposition ofstray logs boom sticks and boom chains 532510to 532710

Recovery of parts of trees lost from vehicles 98610

791

SUPERSEDED


99010 Procedure for reclaiming property placed on anthersland by high waterWhen the fence rails or other property ofany person in this state is removed by highwater and lodged upon the land of anotherthe owner of the property removed mayexcept as provided in ORS 99050 proceedupon the premises where such property islodged within four months after the removalIf the proprietor of the land refuses to deliver up the property the parties shall eachselect an arbitrator who shall examine orhear evidence upon all the circumstancesand facts and determine the case If thearbitrators cannot agree they shall selectan umpire and the decision of a majority ofthem shall be final between the parties

99020 Oath of arbitrators Before thearbitrators proceed as provided in ORS99010 they shall be sworn to dischargetheir duties faithfully impartially and according to law by a person having power toadminister oaths

99030 Procedure when five or moreclaimants When five or more persons claimproperty as provided in ORS 99010 theyshall give notice to all interested of the timeand place of such arbitration Upon hearingall the facts and circumstances in the casethe arbitrators shall award to each claimantsuch a portion of the property as the arbitrators deem reasonable and just

99040 Entry to reclaim not a trespassIt is not considered a trespass for any person to go upon the land of another for thepurpose mentioned in ORS 99010 to 99030

if such person shall if practicable go uponsuch route as will do the least possible injuryto the land

99050 Recovery of any part of tree fromprivate property Any person may enterupon private property where any part of afallen tree belonging to or under the controlof such person has been cast by freshets orhigh waters for the purpose of recoveringand reclaiming the same Before enteringthe land he shall post a bond with the PublicUtility Commissioner to be approved bythe commissioner in such sum as the commissioner may provide The bond shall runto the Public Utility Commissioner to insure to any landowner the payment of anydamage resulting from removal or reclaiming of such property The owner of the landshall be compensated for any damages resulting from the removal

99060 Effect of failure to remove logsfrom anothers land If any person fails toremove and reclaim logs timber or any partof a fallen tree within one year after it iscast upon private property as provided inORS 99050 it is deemed abandoned and thetitle thereto vests in the person entitled tothe possession of the land upon which thesame is found

99070 Landownersrights following removal of logs In all matters and respectsthe rights of a landowner mentioned in ORS99050 and the powers of the Public UtilityCommissioner in relation to the landownersclaim shall be governed by the provisions ofORS 98630 as they relate to landownersmentioned in ORS 98610

CHAPTERS 100 TO 104

Reserved for expansion

792

SUPERSEDED

CHAPTER

RESERVED

It

EXPANSIONSUPERSEDED

CHAPTER

RESERVED

FOR

EXPANSIONSUPERSEDED

Chapter 105


Actions and Suits Involving Property Rights

J

ACTIONS FOR RECOVERY OF REALPROPERTY

105005 Right of action105010 Contents of complaint105015 Answer105020 Substitution of landlord for tenant105025 Verdict105030 Damages for withholding setoff for im

provements105035 Judgment when plaintiffs right to posses

sion expires105040 Order to make survey105045 Action not prejudiced by alienation by per

son in possession105050 Widow and cotenant shall prove ouster105055 Conclusiveness of judgment105060 Effect of new trial on plaintiffspossession105065 Admeasurement of dower after judgment105070 Rights of donee under Donation Law105075 Notice to quit action to recover possession

not affected by forcible entry or wrongful detainer

105080 Reimbursement of tenants in common obtaining possession lien

FORCIBLE ENTRY AND WRONGFULDETAINER

105105 Entry to be lawful and peaceable only105110 Action for forcible entry or wrongful de

tainer

105115 Causes of unlawful holding by force105120 Notice necessary to maintain action in

certain cases waiver of notice effect ofadvance payments of rent

105125 Complaint105130 How action conducted105135 Service and return of summons105140 Continuance105145 Judgment on trial by court105150 Verdict and judgment on trial by jury105155 Form of execution105160 Additional undertaking on appeal

PARTITION

105205 Who may maintain partition105210 When and how partition prevented105215 Complaint105220 Tenants and lien creditors as defendants

liens on undivided interests105225 Summons to whom directed105230 Service by publication105235 Answer

105240 Rights determinable ascertainment of titlewhere defendant defaults or sale is necessary

105245 Sale or partition ordered by court105250 Compensation when equal partition cannot

be made

105255 How referees make partition report105260 Power of court over report final decree105265 Persons not affected by decree105270 Order of sale on referees report105275 Conclusiveness of order confirming report105280 How sale made notice of sale105285 Distribution of proceeds of sale

105290 Distribution of proceeds by referee or payment into court

105295 Continuance of suit after proceeds paidInto court

105300 When lienholder has other securities105305 Credit allowed105310 Setting off estate for life or years in part

not sold

105315 Disposition of life estate or leasehold105320 Compensation of tenants in case of sale105325 When court determines value of tenancy105330 Rules for determining value of certain

estates105335 Protection of unknown tenants105340 Provision for inchoate or future rights or

Interests105345 Notice of terms of sale separate sale of

distinct parcels105350 Purchase by referee or guardian forbidden105355 Report of sale105360 Exception to report confirmation of sale105365 Purchase by encumbrancer or party en

titled to share105370 Investment of proceeds for certain parties105375 In whose name securities taken or invest

ments made105380 When securities are payable to parties105385 Clerks treatment of securities and invest

ments

105390 When proceeds paid to guardian of infant105395 Payment of proceeds to guardian of in

competent105400 When guardian may consent to partition105405 Costs and expenses of partition

ACTIONS AND SUITS FOR NUISANCES105505 Remedies available for private nuisance105510 Procedure for abating a nuisance105515 Stay of issuance of warrant to abate105520 Justification of sureties proceedings when

nuisance is not abated105525 Abatement of public nuisances in certain

counties105530 Hearing and suit to abateSUITS TO QUIET TITLE AND REMOVE CLOUD105605 Suits to determine adverse claims when

claimant not in possession105610 Suit to cancel patent of donee under Dona

tion Law

SUIT TO ESTABLISH BOUNDARY105705 Right to bring suit105710 Pleadings105715 Mode of proceeding105720 Oath and report of commissioners105725 Proceedings on motion to confirm report

ACTIONS BASED ON CHANGE OF GRADE105755 State liability for damages resulting from

change of grade of roads other than citystreets proceedings on cause of actionlimitation

105760 State or county liability for damages resulting from change of grade of streets proceedings on cause of action

793

SUPERSEDED


105815 When double damages are awarded fortrespass

105820 Remedy of tenants in common105825 Action for injury to inheritance

MISC ANEOUS ACTIONS105805 Action for waste

105810 Treble damages for injury to or removal ofproduce trees or shrubs

CROSS REFERENCES

Air pollution abatement 449820Discrimination in selling renting or leasing real

property prohibited 659033Effect of certificate of title of registered land in

suits involving title 94225Escrows regulation 696505 to 696580Guardianship proceedings 126006 to 126565Joinder of owners in common 13150Liability of owner or person in possession of land

used for recreational purposes 30790Limitations of actions and suits Ch 12Notice of lis pendens 93740Release of state tax liens by tax commission 305140State as defendant in action affecting title to real

property in which state has interest 30360State Tax Commission as party in cases involving

state tax liens 305130Submerged and tide lands securing landowners ad

jacent to drilling operations 274800Trust deed foreclosure of 86710Water pollution abatement 449100

105005

Actions to annul letters patent issued by the state30600

Jurisdiction over realty outside of state 14030Mining claim as realty 517080Redress against militia members for property dam

age 398404Right of heirs to recover lands given for dower

113290

105030

Limitation of actions for trespass 12080105050

Curtesy treated same as dower 113020

105055

Defenses by defendant served by publication ingeneral 15150

105065

Curtesy treated same as dower 113020Limitation of action or suit to recover dower or

Curtesy 113090105070

Suit to cancel patent of donee under DonationLaw 105610

105115Tenancy when deemed to exist 91010

105120Landlord and tenant Ch 91Tenancy when deemed to exist 91010

105135

Action for rental due joinder time to answer 162201 i

105205

Action for partition of property subject to unit ownership 91670

Countysright to sue for partition 275310Venue for partition 14040

105210

Common elements of property subject to unit ownership not to be divided 91610

Action by cotenant paying taxes 311285Actions by and against owners of property subject to

unit ownership 91635794

105505Airport hazard as a nuisance 492530Apiary containing diseased bees as a nuisance

602040

Drug addict place resorted to by declared a nuisance 474130

Forest land nuisances created by 477062 477064Gambling or lottery establishments as nuisances

465010

Highway signs as nuisances 483138House of ill fame premises used as a nuisance

465110

Pests and diseases injurious to timber as nuisance527320

Plants with diseases as a nuisance 570170 570195Pollution of water as a nuisance 449320 449330Portions of cemetery as a nuisance 97870Sale of liquor on premises in violation of law as a

nuisance 471620

Slaughterhouse unclean as a nuisance 433710433990

Swimming pool as a nuisance 448060Tide and submerged lands pollution and contamina

tion 274820

105605

Inclusion of unknown claimants as defendants inquiet title suit 13070

Joinder of quiet title and lien foreclosure suits88020

Presumptions and limitations relating to county taxforeclosure titles remedy of ejectment available312214 to 312230

105610

Right of donee under Donation Law 105070

105705

Establishment of boundaries by county surveyor209160

Rules for construing descriptions in conveyances93310

105805

Limitation of action for waste 12080Tenant in dower liable for waste 113270Waste committed during period of redemption from

execution 23580Waste committed during tax redemption period

312180

105810

Actions for trespass of animals 607044 Ch 608Limitation of action for trespass 12080

105820

is

CJ

SUPERSEDED

ACTIONS AND SUITS INVOLVING PROPE RIGHTS 105040

ACTIONS FOR RECOVERY OF REALPROPERTY

105005 Right of action Any personwho has a legal estate in real property anda present right to the possession thereofmay recover possession of the property withdamages for withholding possession by anaction at law The action shall be commencedagainst the person in the actual possessionof the property at the time or if the property is not in the actual possession of anyone then against the person acting as theowner thereof

105010 Contents of complaint The

plaintiff in his complaint shall set forth1 The nature of his estate in the prop

erty whether it be in fee for life or for aterm of years including when necessaryfor whose life and the duration of the term

2 That he is entitled to the possessionthereof

3 That the defendant wrongfully withholds the property from him to his damagefor such sum as is therein claimed

4 A description of the property withsuch certainty as to enable the possessionthereof to be delivered if there is recovery

105015 Answer The defendant shallnot be allowed to give in evidence anyestate license or right of possession in theproperty in himself or another unless thesame is pleaded in his answer If pleadedthe nature and duration of the estate licenseor right of possession shall be set forth withthe certainty and particularity required in acomplaint If the defendant does not defendfor the whole of the property he shallspecify for what particular part he doesdefend

and the order making him defendant orsuch further notice as the court or judgethereof may prescribe

105025 Verdict The jury by their verdict shall find as follows

1 If the verdict is for the plaintiffthat he is entitled to the possession of all ora part of the property described in the complaint or that he owns an undivided share orinterest in all or a part of the propertyincluding the nature and duration of hisestate in such property

2 If the verdict is for the defendantthat the plaintiff is not entitled to the possession of the property described in thecomplaint or the part that the defendantdefends and the estate license or right topossession in such property established onthe trial by the defendant if any as thesame is required to be pleaded

105030 Damages for withholding setoff for improvements The plaintiff shallonly be entitled to recover damages for withholding the property for the term of sixyears next preceding the commencement ofthe action and for any period that mayelapse from the commencement to the timeof giving a verdict excluding the value ofthe use of permanent improvements madeby the defendant When permanent improvements have been made upon the propertyby the defendant or those under whom heclaims while holding under color of title ingood faith and adverse to the claim of theplaintiff the value of the improvements atthe time of trial shall be allowed as a setoffagainst such damages

105035 Judgment when plaintiffsrightto e ire If the right of the

105020 Substitution of landlord fortenant A defendant who is in actual possession may for answer plead that he is inpossession only as tenant of another naming his landlord and his place of residenceThereupon the landlord if he applies therefor shall be made defendant in place of thetenant and the action shall proceed in allrespects as if originally commenced againsthim If the landlord does not apply to bemade defendant within the day the tenant isallowed to answer he shall not be allowed tobut shall be made defendant if the plaintiffrequires it If the landlord is made defendanton motion of the plaintiff he shall be required to appear and answer within 10 daysfrom notice of the pendency of the action

possession zp

plaintiff to the possession of the propertyexpires after the commencement of theaction and before the trial the verdict shallbe given according to the fact and judgmentshall be given only for the damages

105040 Order to make survey 1 Thecourt or judge thereof may on motion andafter notice to the adverse party or causeshown grant an order allowing the partyapplying therefor to enter upon the propertyin controversy and make survey and admeasurement thereof for the purposes of theaction

2 The order shall describe the property A copy of the order shall be servedupon the defendant and thereupon the party

795

SUPERSEDED


may enter upon the property and make thesurvey and admeasurement If any unnecessary injury is done to the premises the applying party is liable therefor

105045 Action not prejudiced by alienation by person in possession An action forthe recovery of the possession of real property against a person in possession is notprejudiced by any alienation made by suchperson either before or after the commencement of the action If the alienation is madeafter the commencement of the action andthe defendant does not satisfy the judgmentrecovered for damages for withholding thepossession the damages may be recoveredby action against the purchaser

105050 Widow and cotenant shall proveouster In an action for the recovery ofdower before admeasurement or by a tenantin common of real property against a cotenant the plaintiff shall show in addition tothe evidence of his right of possession thatthe defendant either denied the plaintiffsright or did some act amounting to a denial

105055 Conclusiveness of judgment1 Except as provided in subsection 2the judgment in an action to recover thepossession of real property is conclusive asto the estate in the property and the right tothe possession thereof so far as the same isthereby determined upon the party againstwhom the judgment is given and againstall persons claiming from through or undersuch party after the commencement of theaction

2 When service of the summons ismade by publication and judgment is givenfor want of an answer at any time withintwo years from the entry thereof the defendant or his successor in interest as to thewhole or any part of the property shallupon application to the court or judge thereof be entitled to an order vacating the judgment and granting him a new trial upon thepayment of the costs of the action

3 In an action against a tenant thejudgment is conclusive against a landlordwho has been made defendant in place of thetenant to the same extent as if the actionhad been originally commenced against him

105060 Effect of new trial on plaintiffs possession If the plaintiff has takenpossession of the property before the judgment is set aside and a new trial granted asprovided in subsection 2 of ORS 105055the possession is not thereby affected in any

796

way If judgment is given for the defendantin the new trial he is entitled to restitutionby execution in the same manner as if hewere plaintiff

105065 Admeasurement of dower afterjudgment In an action to recover the possession of real property by a tenant in doweror her successor in interest when the estatein dower has not been admeasured beforethe commencement of the action the plaintiff shall not have execution to deliver thepossession thereof until it is admeasured asfollows

1 At any time after the entry ofjudgment in favor of the plaintiff he mayupon notice to the adverse party move thecourt for the appointment of referees to admeasure the dower out of the real propertyrecovered by the action The court shall allow the motion unless it appears probable onthe hearing that a partition of the propertycannot be made without prejudice to theinterests of the other owners In the lattercase the court shall disallow the motion andthereafter the plaintiff shall only proceedfor partition or sale of the real property asprovided in ORS 105205 to 105405

2 If the court allows the motion theproceedings shall be conducted as providedin ORS 105205 to 105405 At any time afterthe confirmation of the report of the referees the plaintiff may have execution forthe delivery of the possession of the property according to the admeasurement thereof and for any damages recovered for withholding the property if the damages remainunsatisfied

3 If the motion for admeasurement ismade during the term in which judgmentwas given the notice thereof shall be servedon the adverse party at such time as thecourt by general rule or special order mayprescribe

105070 Rights of donee under DonationLaw In an action at law for the recovery ofthe possession of real property if eitherparty claims the property as a donee of theUnited States under the Act of Congressapproved September 27 1850 commonlycalled the Donation Law or the Acts amendatory thereto such party from the date ofhis settlement on the property as providedin said Acts is deemed to have a legal estatein fee in the property The estate shall continue upon the condition that he performsthe conditions required by such Acts and isunconditional and indefeasible after the

is

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ACTIONS AND SUITS INVOLVING PROPERTY RIGHTS 105120

performance of such condition If bothplaintiff and defendant claim title to thesame real property by virtue of settlementunder such Acts the settlement and theperformance of the subsequent conditionsshall be conclusively presumed in favor ofthe party having or claiming under theelder patent certificate or patent unless itappears upon the face of such certificate orpatent that it is absolutely void

105075 Notice to quit action to recover possession not affected by forcibleentry or wrongful detainer In any action torecover the possession of real property asprovided for in OAS 105005 notice to quitwhen necessary may be given as prescribedin ORS 91050 to 91110 and ORS 105120

Nothing in ORS 105105 to 105160 preventssuch action from being maintained for therecovery of the possession of real propertyalthough the entry of the defendant isforcible or the holding is unlawful and withforce as defined in ORS 105105

105080 Reimbursement of tenants in

common obtaining possession lien In allcases where property in this state is or hasbeen claimed or owned by residents of thisstate in common with others and such residents have obtained or shall obtain the possession of the property at their own costexpense or labor they are entitled to reimbursement from the remaining claimant incommon of the property according to theirproportionate interest therein Residents soobtaining possession of such property havea lien upon it until the remaining claimanthas paid or tendered such proportionateshare of the reasonable costs expenses orlabor aforesaid


FORCIBLE ENTRY AND WRONGFULDETAINER

105105 Entry to be lawful and peaceable only No person shall enter upon anyland tenement or other real property unless the right of entry is given by law Whenthe right of entry is given by law the entryshall be made in a peaceable manner andwithout force

is made in a peaceable manner and possession is held by force the person entitled tothe premises may maintain in the countywhere the property is situated an action torecover the possession thereof in the circuitcourt district court or before any justice ofthe peace of the county

105115 Causes of unlawful holding byforce The following are causes of unlawfulholding by force within the meaning of ORS105110 and 105125

1 When the tenant or person in possession of any premises fails or refuses topay rent within 10 days after it is due underthe lease or agreement under which he holdsor to deliver possession of the premises afterbeing in default on payment of rent for 10days

2 When the lease by its terms has expired and has not been renewed or whenthe tenant or person in possession is holdingfrom month to month or year to year andremains in possession after notice to quitas provided in ORS 105120 or is holdingcontrary to any condition or covenant ofthe lease or is holding possession withoutany written lease or agreement

105120 Notice necessary to maintainaction in certain cases waiver of noticeeffect of advance payments of rent 1 Anaction for the recovery of the possession ofthe premises may be maintained in casesprovided in subsection 2 of ORS 105115when the notice to terminate the tenancy orto quit has been served upon the tenant orperson in possession in the manner prescribed by ORS 91110 and for the periodprescribed by ORS 91060 to 91080 beforethe commencement of the action unless theleasing or occupation is for the purpose offarming or agriculture in which case suchnotice must be served for a period of 90 daysbefore the commencement of the action

2 Any person entering into the possession of real estate under written lease as thetenant of another may by the terms of hislease waive the giving of any notice requiredby this section

3 The service of a notice to quit upona tenant or person in possession does notauthorize an action to be maintained againsthim for the possession of premises before

105110 Action for forcible entry or the expiration of any period for which thewrongful detainer When a forcible entry is tenant or person has paid the rent of themade upon any premises or when an entry premises in advance

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105125 Complaint In an action pursuant to ORS 105110 it is sufficient to statein the complaint

1 A description of the premises withconvenient certainty

2 That the defendant is in possessionof the premises

3 That he entered upon the premiseswith force or unlawfully holds the premiseswith force and

4 That the plaintiff is entitled to thepossession of the premises

105130 How action conducted Exceptas provided in ORS 105135 to 105160 anaction pursuant to ORS 105110 shall beconducted in all respects as other actions incourts of this state

105135 Service and return of summonsThe summons shall be served and returnedas in other actions The service shall be not

less than two or more than four days beforethe day of trial appointed by the court

105140 Continuance No continuance

shall be granted for a longer period thantwo days unless the defendant applyingtherefor gives an undertaking to the adverseparty with good and sufficient security tobe approved by the court conditioned forthe payment of the rent that may accrue ifjudgment is rendered against the defendant

105145 Judgment on trial by court Ifthe action is tried by the court without ajury and after hearing the evidence it concludes that the complaint is not true it shallenter judgment against the plaintiff forcosts and disbursements If the court findsthe complaint true or if judgment is rendered by default it shall render a generaljudgment against the defendant and in favorof the plaintiff for restitution of the premises and the costs and disbursements of the

action If the court finds the complaint truein part it shall render judgment for therestitution of such part only and the costsand disbursements shall be taxed as the

court deems just and equitable105150 Verdict and judgment on trial

by jury If the action is tried by a jury andthey find the complaint true they shall render a general verdict of guilty against thedefendant if not true they shall render ageneral verdict of not guilty if true in partthey shall render a verdict setting forth thefacts they find and the court shall renderjudgment according to the verdict

105155 Form of execution The execu

tion should judgment of restitution be rendered may be in the following formState of Oregon 1County of

ss

To the sheriff or any constable of thecounty

Whereas a certain action for the forcible entry and detention or the forcible detention of the following described premisesto wit lately triedbefore the above entitled court wherein

was plaintiff and was

defendant judgment was rendered on theday of A D that the

plaintiff have restitution of thepremises and also that he recover the costsand disbursements in the sum of

In the name of the State of Oregon youare therefore hereby commanded to causethe defendant and his goods and chattelsto be forthwith removed from the premisesand the plaintiff is to have restitution ofthe same In the event the goods and chattels are not promptly removed thereafter bythe defendant you are authorized and empowered to cause the same to be removedto a safe place for storage You are alsocommanded to levy on the goods and chattels of the defendant and make the costsand disbursements aforesaid and all accruing costs and to make legal service anddue return of this writ

Witness my hand and official seal ifissued out of a court of record thisday of A D

Justice of the peace or clerkof the district or circuit court

105160 Additional undertaking on appeal If judgment is rendered against thedefendant for the restitution of the real

property described in the complaint or anypart thereof no appeal shall be taken by thedefendant from the judgment until he givesin addition to the undertaking now requiredby law upon appeal an undertaking to theadverse party with two sureties who shalljustify in like manner as bail upon arrestfor the payment to the plaintiff if the judgment is affirmed on appeal of twice therental value of the real property of whichrestitution is adjudged from the commencement of the action in which the judgmentwas rendered until final judgment in theaction

798

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PARTITION

105205 Who may maintain partitionWhen several persons hold real property astenants in common in which one or moreof them have an estate of inheritance or forlife or years or when several persons holdas tenants in common a vested remainder or

reversion in any real property any one ormore of them may maintain a suit for thepartition of the real property according to therespective rights of the persons interestedtherein and for a sale of all or a part of theproperty if it appears that a partition cannot be had without great prejudice to theowner

105210 When and how partition prevented If the court finds that the propertycan neither be partitioned nor sold withoutgreat prejudice to the owners the court mayreceive evidence as to the value of the re

spective interests fix the value thereof andmake an order permitting the owners objecting to the partition or sale to borrowmoney upon the property with which to payoff the claims as so fixed of the personsdemanding a partition or sale Upon paymentof the amount in court as so fixed for thesatisfaction of the claims of those demanding partition or sale all right and interestin the property of the parties so demandingpartition or sale is satisfied fully and discharged and the property is free and clearof all claims of any such parties

105215 Complaint The interest of allknown and unknown persons in the propertyshall be specifically and particularly setforth in the complaint for partition as faras known to the plaintiff If one or moreof the parties or the share or quantity ofinterest of any of the parties is unknown tothe plaintiff or is uncertain or contingentor if the ownership of the inheritance depends upon an executory devise or theremainder is a contingent remainder sothat the parties cannot be named that factshall be set forth in the complaint

105220 Tenants and lien creditors as

defendants liens on undivided interestsThe plaintiff shall make a tenant in dowerby the curtesy for life or for years of anyportion of the entire property and creditorshaving a lien upon any portion of the property defendants in the suit When the lien

is upon an undivided interest or estate ofany of the parties and a partition is madeit is thenceforth a lien only upon the shareassigned to such party but such share shallbe first charged with its just proportion ofthe cost of the partition in preference tosuch lien

105225 Summons to whom directedThe summons shall be directed by name toall the tenants in common who are knownto all lien creditors who are made partiesto the suit and generally to all persons unknown having or claiming an interest orestate in the property

105230 Service by publication If aparty having a share or interest in or lienupon the property is unknown or any of theknown parties reside out of the state orcannot be found therein and such fact ismade to appear by affidavit the summonsmay be served on the absent or unknownparty by publication directed by the courtor judge as in ordinary cases When serviceof the summons is made by publication itmust be accompanied by a brief descriptionof the property which is the subject of thesuit

105235 Answer The defendant shallset forth in his answer the nature and extent of his interest in the property If he isa lien creditor he shall set forth how the lienwas created the amount of the debt securedthereby and remaining due and whethersuch debt is secured in any other way andif so the nature of the other security

105240 Rights determinable ascertainment of title where defendant defaults orsale is necessary The rights of the plaintiffs and defendants may be put in issuetried and determined in the suit If a defendant fails to answer or if a sale of theproperty is necessary the title shall beascertained by proof to the satisfaction ofthe court before the decree for partition orsale is given

105245 Sale or partition ordered bycourt If it is alleged in the complaint andestablished by evidence or if it appears bythe evidence to the satisfaction of the courtwithout an allegation in the complaint thatthe property or any part of itis so situatedthat partition cannot be made without greatprejudice to the owners the court may ordera sale of the property and for that purpose

99

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105250 PROPER RIGHTS AND TRANSACTIONS

may appoint one or more referees Otherwise upon the requisite proofs being madeit shall decree a partition according to therespective rights of the parties as ascertained by the court The court shall appointthree referees to partition the property andshall designate the portion to remain undivided for the owners whose interest remainunknown or not ascertained

105250 Compensation when equal partition cannot be made When it appears thatpartition cannot be made without prejudiceto the rights and interests of some of theparties the court may adjudge compensation to be made by one party to another onaccount of the inequality of partition Compensation shall not be required to be paidto others by owners unknown nor by infantsunless it appears that an infant has personal property sufficient for that purposeand that his interest will be promotedthereby

105255 How referees make partitionreport In making the partition the refereesshall divide the property and allot the several portions thereof to the respectiveparties quality and quantity relatively considered according to the respective rightsof the parties as determined by the courtThey shall designate the several portionsby proper landmarks and may employ asurveyor with the necessary assistants toaid them The referees shall make a reportof their proceedings specifying therein themanner of executing their trust and describing the property divided and the shares allotted to each party with a particular description of each share

105260 Power of court over reportfinal decree The court may confirm or setaside the report in whole or in part and ifnecessary appoint new referees Upon thereport being confirmed a decree shall begiven stating that the partition shall beeffectual forever Except as provided in ORS105265 the decree is binding and conclusive

1 On all parties named therein andtheir legal representatives who have at thetime any interest in any part of the propertydivided as owners in fee or as tenants for

life or for years2 On all parties named therein and

their legal representatives entitled to thereversion remainder or inheritance of theproperty or any part thereof after the

800

termination of a particular estate therein orwho by any contingency may be entitled toa beneficial interest in the property

3 On all parties named therein ortheir legal representatives who have aninterest in any undivided share of the property as tenants for years or for life

4 On all persons interested in theproperty who are unknown to whom noticewas given of the application for partition bypublication as directed by ORS 105230

5 On all persons claiming from partiesor persons listed in subsections 1 to 4of this section

105265 Persons not affected by decreeThe decree provided for in ORS 105260shall not affect tenants for years or for lifeof the whole of the property which is thesubject of partition Except as provided inORS 105260 the decree and partition shallnot preclude any person from claiming titleto the property in question or from controverting the title of the parties betweenwhom the partition was made

105270 Order of sale on referees report If the referees report to the court thatthe property for which partition has beendecreed or any separate portion thereof isso situated that a partition thereof cannotbe made without great prejudice to the owners and the court is satisfied that the reportis correct it may by an order direct thereferees to sell the property or separateportion thereof so situated

105275 Conclusiveness of order con

firming report If the report of the refereeis confirmed the order of confirmation is

binding and conclusive upon all parties tothe suit

105280 How sale made notice of saleAll sales of real property made by the referees shall be made by public auction to thehighest bidder in the manner required forthe sale of real property on execution Thenotice shall state the terms of sale If the

property or any part of it is to be sold subject to a prior estate charge or lien thatfact shall be stated in the notice

105285 Distribution of proceeds of saleThe proceeds of the sale of encumberedproperty shall be distributed by the decreeof the court as follows

1 To pay the propertys just proportion of the general costs of the suit

2 To pay the costs of the reference

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3 To satisfy the several liens in theirorder of priority by payment of the sumsdue and to become due according to the decree

4 The residue among the owners ofthe property sold according to their respective shares

105290 Distribution of proceeds byreferee or payment into court The proceedsof sale and the securities taken by the referees or any part thereof shall be distributedby them to the persons entitled theretowhenever the court so directs If no such

direction is given all proceeds and securitiesshall be paid into court or deposited as directed by the court

105295 Continuance of suit after proceeds paid into court When the proceeds ofsales of any shares or parcel belonging toknown persons who are parties to the suitare paid into court the suit may be continued as between such parties for the determination by the court of their respectiveclaims thereto Further testimony may betaken in court or by a referee at the discretion of the court and the court may ifnecessary require the parties to present thefacts or law in controversy by pleadings asin an original suit

105300 When lienholder has other se

curities Whenever any party to the suitwho holds a lien upon any part of the property has other securities for the payment ofthe amount of the lien the court may in itsdiscretion order the securities to be exhausted before a distribution of the proceedsof sale or may order a just deduction to bemade from the amount of the lien on theproperty

105305 Credit allowed The court shallin the order of sale direct the terms ofcredit which may be allowed for the purchase money of any portion of the premiseswhich it may direct to be sold on creditand for that portion of which the purchasemoney is required by ORS 105370 to beinvested for the benefit of unknown owners

infants or parties out of the state Thereferees may take separate mortgages andother securities for the whole or convenientportions of the purchase money of suchparts of the property as are directed bythe court to be sold on credit in the name ofthe clerk of the court and his successor inoffice When there is a known owner of full

age the security for his share shall be executed in his name

105310 Setting off estate for life oryears in part not sold When only a part ofthe property is ordered to be sold the wholeof an estate for life or years in an undividedshare of the property may be set off in anypart of the property not ordered to be sold

105315 Disposition of life estate orleasehold When the estate of any tenant forlife or years in any undivided part of theproperty in question was admitted by theparties or ascertained by the court to beexisting at the time of the order of sale andthe person entitled to such estate was madea party to the suit the estate may be firstset off out of any part of the property anda sale made of such parcel subject to thetenants prior unsold estate but if in thejudgment of the court a due regard to theinterest of all the parties requires that suchestate should also be sold the sale of theestate may be ordered

105320 Compensation of tenants in

case of sale Any person entitled to an estatefor life or years in any undivided part of theproperty whose estate has been sold shallbe entitled to receive such sum in gross asis deemed upon principles of law applicableto annuities a reasonable satisfaction forthe estate If the person so entitled consentsto that sum he shall accept it by executingan instrument that is duly acknowledged orproved in the same manner as deeds for thepurpose of record and filed with the clerk

105325 When court determines value

of tenancy If a tenant does not consentpursuant to ORS 105320 before the reportof sale the court shall ascertain and determine what proportion of the proceeds ofthe sale after deducting expenses will be ajust and reasonable sum to be invested forthe tenants benefit and shall order thatsum to be deposited in court for that purpose

105330 Rules for determining value ofcertain estates The proportion of the proceeds of the sale to be invested as providedin ORS 105325 shall be ascertained anddetermined as follows

1 If an estate in dower or curtest isincluded in the order of sale its proportionshall be onehalf of the proceeds of the saleof the property or of the sale of the undi

302

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vided share in the property upon which theclaim or dower existed

2 If any other estate for life or yearsis included in the order of sale its proportion shall be the whole proceeds of the saleof the property or of the sale of an undivided share of the property in which theestate existed

105335 Protection of unknown tenantsIf any person entitled to an estate for lifeor years is unknown the court shall provide for the protection of his rights in thesame manner as far as possible as if hewere known and had appeared

105140 Provision for inchoate or futurerights or interests In all cases of sales inpartition when it appears that a marriedwoman has an inchoate right of dower inany of the property sold or that any personhas a vested or contingent future right orestate therein the court shall ascertain andsettle the proportional value of the inchoatecontingent or vested right or estate according to the principles of law applicable toannuities and survivorship and shall directsuch proportion of the proceeds of sale tobe invested secured or paid over in suchmanner as to protect the rights and interests of the parties

105345 Notice of terms of sale separate We of distinct parcels In all cases ofsales of property the terms shall be madeknown at the time If the premises consistof distinct farms or lots they shall be soldseparately or otherwise if the court sodirects

105350 Purchase by referee or guardian forbidden Neither of the referees norany person for the benefit of either of themshall be interested in any purchase at a partition sale nor shall the guardian of aninfant party be interested in the purchase ofany real property that is the subject of thesuit except for the benefit of the infant Allsales contrary to the provisions of this section are void

105360 Exception to report confirmation of sale The report of sale may be excepted to by any party entitled to a shareof the proceeds in like manner and with likeeffect as in ordinary cases If the sale isconfirmed the order of confirmation shalldirect the referees to execute conveyancesand take securities pursuant to the salewhich acts they are hereby authorized to doThe order shall discharge the property ofthe estate or interest of every person mentioned in ORS 105260 and of tenants for lifeor years of the property sold The ordershall be binding and conclusive upon all suchpersons as if it were a decree for the partition of such property and except as providedin ORS 105350 upon all persons whomsoever as to the regularity of the proceedingsconcerning such sale

105365 Purchase by encumbrancer orparty entitled to share When a party entitled to a share of the property or an encumbrancer entitled to have his lien paid outof the sale becomes a purchaser the referees may take his receipt for so much ofthe proceeds of the sale as belongs to him

105370 Investment of proceeds for certain parties When there are proceeds of salebelonging to an unknown owner or to aperson without the state who has no legalrepresentative within it or when there areproceeds arising from the sale of an estatesubject to the prior estate of a tenant forlife or years which are paid into court orotherwise deposited by order of the courtsuch proceeds shall be invested in securitieson interest for the benefit of the personsentitled thereto

105375 In whose name securities taken

or investments made Except as provided inORS 105380 security for the proceeds ofsale shall be taken or investments of the

proceeds shall be made in the name of theclerk of the court and his successors inoffice who shall hold the same for the useand benefit of the parties interested subjectto the order of the court

105355 Report of sale After completing the sale the referees shall report it tothe court with the description of the different parcels of land sold to each purchaserthe name of the purchaser the price paid orsecured the terms and conditions of the saleand the securities if any taken The report shall be filed with the clerk

105380 When securities are payable toparties When security is taken by the referees on a sale and the parties interested inthe security by an instrument in writingunder their hands delivered to the refereesagree upon the shares and proportions towhich they are entitled or when shares andproportions have been previously adjudged

02

is

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by the court the securities shall be taken inthe names of and payable to the parties entitled thereto and shall be delivered to suchparties upon their receipt therefor Suchagreement and receipt shall be returned andfiled with the clerk

such infant or other incapable person to theowners of the other shares of the parts towhich they are respectively entitled

105405 Costs and expenses of partition 1 The expenses of the referees including those of a surveyor and his assistants when employed shall be ascertainedand allowed by the court and the amountthereof together with the fees allowed bylaw to the referees shall be paid by theplaintiff and may be allowed as part of thecharges

2 The costs of partition including feesof referees reasonable attorney fees to bedetermined by the court for services performed for the common benefit of all partiesand other disbursements shall be paid bythe parties entitled to share in the lands divided in proportion to their respective interests therein and shall be included and specified in the decree They shall be a lien onthe several shares and the decree may beenforced by execution against the partiesseparately When however a litigationarises between some of the parties only thecourt may require the expense of such litigation to be paid by any or all of thelitigating parties

105385 Clerks treatment of securitiesand investments The clerk in whose name a

security is taken or by whom an investmentis made and his successors in office shallreceive the interest and principal as it becomes due and apply and invest it as thecourt may direct He shall file in his officeall securities taken and keep an account ina book provided and kept for that purpose inhis office free for inspection by all personsof investments and moneys received and disposed of by him

105390 When proceeds paid to guardian of infant When the share of an infantis sold the proceeds of the sale may be paidby the referees making the sale to his general guardian or the special guardian appointed for him in the suit upon the guardiangiving the security required by law or ordered by the court

105395 Payment of proceeds to guardian of incompetent When the interest in realproperty of an insane person or other person adjudged incapable of conducting hisown affairs has been sold his share of theproceeds shall be given on his behalf to theguardian who is entitled to the custody andmanagement of his estate if the guardianexecutes with sufficient sureties an undertaking approved by the judge of the courtthat he will faithfully discharge the trustreposed in him and will render a true andjust account to the person entitled to theproceeds or to his legal representative


ACTIONS AND SUITS FOR NUISANCES

105505 Remedies available for privatenuisance Any person whose property orpersonal enjoyment thereof is affected by aprivate nuisance may maintain an action atlaw for damages therefor If judgment isgiven for the plaintiff in the action he mayon motion in addition to the execution toenforce the judgment obtain an order allowing a warrant to issue to the sheriff to abatethe nuisance The motion must be made atthe term at which judgment is given andshall be allowed of course unless it appearson the hearing that the nuisance has ceasedor that such remedy is inadequate to abateor prevent the continuance of the nuisancein which latter case the plaintiff may proceed in equity to have the defendant enjoined

105400 When guardian may consent topartition When an infant insane person orother person adjudged incapable of conducting his own affairs is interested in realestate held in common or in any other manner so as to authorize his being made aparty to an action for the partition thereofthe general guardian of the infant or theguardian entitled to the custody and management of the estate of insane or otherincapable person may consent to a partitionwithout suit and agree upon the share to beset off to such infant or other incapableperson When the court so orders suchguardian may execute a release on behalf of

105510 Procedure for abating a puissance If the order to abate provided for inORS 105505 is made the clerk shall whenrequested by the plaintiff within six monthsafter the order is made issue a warrant

MR

SUPERSEDED


directed to the sheriff requiring him forthwith to abate the nuisance at the expense ofthe defendant and to return the warrant as

soon thereafter as possible with his proceedings indorsed thereon The expense ofabating the nuisance may be levied by thesheriff on the property of the defendant andin this respect the warrant is to be deemedan execution against property

105515 Stay of issuance of warrant toabate At any time before an order to abateis made or a warrant to abate is issued thedefendant may on motion to the court orjudge thereof have an order to stay theissuing of the warrant for such period asmay be necessary not exceeding six monthsto allow the defendant to abate the nuisance

himself upon his giving an undertaking tothe plaintiff in a sufficient amount with oneor more sureties to the satisfaction of thecourt or judge thereof that he will abatethe nuisance within the time and in the man

ner specified in the order

105520 Justification of sureties proceedings when nuisance is not abated If theplaintiff is not notified of the time and placeof the application for the order provided forin ORS 105515 the sureties therein provided for shall justify as bail upon arrestotherwise the justification may be omittedunless the plaintiff requires it If the orderis made and undertaking given and the defendant fails to abate the nuisance within

the time specified in the order at any timewithin six months thereafter the warrantfor the abatement of the nuisance may issueas if the warrant had not been stayed

105525 Abatement of public nuisancesin certain counties Whenever it appears tothe county court or the board of countycommissioners of any county in this statehaving more than 50000 inhabitants fromthe petition of 10 residents of the countyresiding in any one voting precinct of thecounty no part of which is within the corporate limits of a city or town that a nuisanceexists in the precinct by reason of the maintenance on property therein of refuse dumpsjunk yards incinerators or stable or theoperation of any business which by reasonof smoke dust noise or noisome odors interferes with the peace and quiet of the residents in the vicinity or with the quiet enjoyment of residence property within thevicinity the county court or board of county

commissioners may order that a notice beissued and served upon the owner and occupant of the property where the nuisance isalleged to be maintained requiring the owner and occupant to appear before it at atime and place named in the notice to showcause why a nuisance should not be declaredto exist The time for appearance shall notbe less than 10 days from the service of thenotice The notice shall be served in the

manner provided by law for the service ofsummons Such a cause of action shall not

be maintained against any city county orother municipal corporation or agenciesthereof

105530 Hearing and suit to abate Atthe time and place fixed in the notice provided for in ORS 105525 the county courtor the board of county commissioners shallhold a hearing on the question of the existence of the nuisance and shall have power tosubpena witnesses and to compel their attendance If after the hearing the county courtor the board of county commissioners findsthat a nuisance exists it shall declare theexistence of a nuisance by order entered inits journal and shall order a suit to bebrought in the name of the county for itsabatement


SUITS TO QUIET TITLE ANDREMOVE CLOUD

105605 Suits to determine adverse

claims when claimant not in possession Anyperson claiming an interest or estate in realproperty not in the actual possession ofanother may maintain a suit in equityagainst another who claims an adverse

interest or estate therein for the purpose ofdetermining such conflicting or adverseclaims interests or estates Any municipalcorporation or county of this state claimingany interest or estate in real property whichis not in the actual possession of anotherincluding real property acquired by foreclosure of delinquent tax liens situated inthe same county may maintain a suit inequity against all persons who claim an adverse interest or estate in all or any part ofthe property for the purpose of determiningthe conflicting or adverse claims interestsor estates One or more parcels may be included in one suit and the issue made bythe pleadings in any suit by a municipalityor county relating only to a certain parcel

is

is804

SUPERSEDED


J

or part of the real property shall be separately tried and determined upon motion ofany interested party

105610 Suit to cancel patent of doneeunder Donation Law Whenever any personclaims real property as a donee of the UnitedStates by virtue of a settlement thereon under the Act of Congress approved September 27 1850 commonly called the DonationLaw or the Acts amendatory thereto andthe patent for such property or any portionthereof was wrongfully issued to anotherthe person may maintain a suit in equityagainst the person to whom the patent wasissued or those claiming under him for thepurpose of having the patent canceled andthe estate or interest of the plaintiff in theproperty ascertained and established Insuch suit the party entitled to and makingthe settlement under such Acts of Congressand complying with the subsequent conditions thereby required is deemed to have alegal estate in fee in the property althoughthe patent therefor was issued to another


SUIT TO ESTABLISH BOUNDARY

105705 Right to bring suit When anydispute or controversy exists between owners of adjacent or contiguous lands in thisstate concerning the boundary lines thereofor the location of the line dividing suchlands any party to the dispute or controversy may bring a suit in equity in the circuitcourt in the county where all or part of thelands are situated for the purpose of havingthe controversy or dispute determined andthe boundary line or dividing line ascertained and marked by proper monumentsupon the ground where such line is ascertained

105710 Pleadings The complaint in aboundary suit is sufficient if it appearstherefrom that the plaintiff and defendantare owners of adjacent lands some part ofwhich is in the county in which the suit isbrought and that there is a controversy ordispute between the parties concerning theirboundary or dividing line It shall not benecessary to set forth the nature of thedispute or controversy except that the plaintiff shall describe the boundary or dividingline as he claims it to be The defendant ihis answer shall set forth the nature of hi

claim with reference to the location of theline in controversy

105715 Mode of proceeding The modeof proceeding in a boundary suit is analogousto that of other suits in equity At the timeof entering the decree fixing the true location of the disputed boundary or dividingline the court shall appoint three disinterested commissioners one of whom shall bea practical surveyor and shall direct thecommissioners to go upon the land of theparties and establish and mark out upon thegrounds by proper marks and monumentsthe boundary or dividing line as ascertainedand determined by the court in its decree

105720 Oath and report of commissioners Before entering upon the discharge oftheir duties the commissioners shall makeand file their oath in writing to faithfullyand impartially perform their duties as commissioners After designating the boundaryor dividing line by proper marks and monuments they shall file in the court a reportof their doings as commissioners and thereport shall be when approved or confirmedby the court a part of the judgment roll inthe cause

105725 Proceedings on motion to confirm report The report of the commissionersmay be confirmed by the court upon writtenmotion of either party to the suit whenever itappears to the court that the motion wasserved upon the adverse party two days before the presentation thereof and no exceptions have been filed to the report withintwo days after the service If exceptions arefiled to the report they may be heard withthe motion to confirm and the court mayconfirm modify or set aside the report as isjust and in the latter case may appoint anew commission or refer the matter to thesame commissioners with appropriate instructions


ACTIONS BASED ON CHANGE OFGRADE

105755 State liability for damages resulting from change of grade of roads otherthan city streets proceedings on cause ofaction limitation 1 As used in this sectionpublic road means a road used by the general public whether designated as a statehighway county or district road or other

n wise but does not include city streets unders ORS 105760

805

SUPERSEDED


2 Whenever the State Highway Commission changes the grade of any public roadfrom a previously established or maintainedgrade the state shall be liable for and shallpay just and reasonable compensation forany legal damage or injury to any realproperty abutting upon the public road affected by the grade change except that thestate shall not be liable for any damage orinjury for any such change whenever thecounty has requested the State HighwayCommission to make such change

3 Any person having any right titleor interest in any such real property has acause of action against the state to enforcepayment of the compensation Any such action may be commenced and maintained inthe circuit court for the county in which thereal property is situated Any party to anysuch action has the right to appeal from thefinal judgment of any circuit court to theSupreme Court Any person having or claiming any right title or interest in such realproperty may join as party plaintiff or mayintervene in any action involving the realproperty in which the interest is claimed

4 The trial circuit court shall in itsfinal judgment apportion such just compensation as it may award among the variouspersons found by it to own or have someright title or interest in such real propertyThe awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made whenreal property is taken under the power ofeminent domain

5 The liability of the state terminateswholly when it pays into court the sums determined by the circuit court to be just compensation Any cause of action granted bythis section is barred unless such action iscommenced within six months after the

change of grade is physically completed andaccepted by the State Highway Commission1961 c510 1

105805 Action for waste If a guardianor tenant in severalty or in common for

105760 State or county liability fordamages resulting from change of grade ofstreets proceedings on cause of action 1If consent is given by the governing bodyof any city to change any grade of any streetas such grade has been established or maintained by the consenting city and pursuantthereto the State Highway Commission or acounty changes the grade the state or thecounty whichever makes such change ofgrade shall be liable for and shall pay justand reasonable compensation for any dam

8

age or injury to any real property abuttingupon the road or street affected by the gradechange

2 Any person having any right titleor interest in any such real property hasa cause of action against the state or againstthe county to enforce payment of the compensation Any such action may be commenced and maintained in the circuit courtfor the county in which the real propertyis situated Any party to any such actionhas the right to appeal from the final judgment of any circuit court to the SupremeCourt Any person having or claiming anyright title or interest in such real propertymay join as party plaintiff or may intervene in any action involving the real property in which the interest is claimed

3 The trial circuit court shall in itsfinal judgment apportion such just compensation as it may award among the variouspersons found by it to own or have someright title or interest in such real propertyThe awarded compensation shall be apportioned according to the rules of law governingthe distribution of awards made when realproperty is taken under the power of eminentdomain

4 The liability of the state or the liability of the county as the case may beterminates wholly when it pays into courtthe sums determined by the circuit court tobe just compensation Any cause of actiongranted by this section is barred unless suchaction is commenced within six months afterthe change of grade is physically completedand accepted by the State Highway Commission or the countyFormerly 373040


MISCELLANEOUS ACTIONS

hfe or for years of real property commitswaste thereon any person injured therebymay maintain an action at law for damagesagainst the guardian or tenant In the actionthere may be judgment for treble damagesforfeiture of the estate of the party committing or permitting the waste and evictionfrom the property Forfeiture and evictionshall only be given in favor of the personentitled to a reversion against the tenant inpossession when the injury to the estate inreversion is determined in the action to beequal to the value of the tenants estate or

06

SUPERSEDED


unexpired term or when the waste was committed with malice

105810 Treble damages for injury toor removal of produce trees or shrubsExcept as provided in ORS 477310 whenever any person without lawful authoritywilfully injures or severs from the land ofanother any produce thereof or cuts downgirdles or otherwise injures or carries off anytree timber or shrub on the land of anotherperson or of the state county United Statesor any public corporation or on the streetor highway in front of any persons houseor in any village town or city lot or cultivated grounds or on the common or publicgrounds of any village town or city or onthe street or highway in front thereofin an action by such person village towncity the United States state county orpublic corporation against the person committing such trespasses if judgment is givenfor the plaintiff it shall be given for treblethe amount of damages claimed or assessedfor the trespass In any such action uponplaintiffs proof of his ownership of thepremises and the commission by the defendant of any of the acts mentioned in this section it is prima facie evidence that the acts

were committed by the defendant wilfullyintentionally and without plaintiffsconsent

105815 When double damages are

awarded for trespass If upon the trial ofan action included in ORS 105810 it appears that the trespass was casual or involuntary or that the defendant had probablecause to believe that the land on which the

trespass was committed was his own or theland of the person in whose service or bywhose direction the act was done or that thetree or timber was taken from uninclosedwoodland for the purpose of repairing anypublic highway or bridge upon the land oradjoining it judgment shall be given fordouble damages

105820 Remedy of tenants in commonA tenant in common may maintain any proper action suit or proceeding against his cotenant for receiving more than his just proportion of the rents or profits of the estateowned by them in common

105825 Action for injury to inheritance A person seised of an estate in remainder or reversion may maintain a civilaction for any injury to the inheritancenotwithstanding the presence of an intervening estate for life or years


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill andthat the sections in this chapter are correct copies of the enrolled sections with the exceptionof the changes in form permitted by ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haley

on December 1 1961 Legislative Counsel

807

SUPERSEDED

E

808

SUPERSEDED

TITLE 11

DOMESTIC RELATIONS

Chapter 106 Marriage107 Divorce Annulment and Separation Conciliation Services108 Husband and Wife Relationship Property Rights109 Parent and Child Relationship Filiation Proceedings Adoption Age

of Majority110 Reciprocal Enforcement of Support

Chapter 106


Marriage

106010 Marriage as civil contract age of parties 106100 Retention of license by person solemnizing

106020 Prohibited and void marriages 106110marriage clerks memorandumU of marriage license pro

106030 Voidable marriages issue106041 Necessity for marriage license applica 106120 Who may solemnize marriage recording

tion of authority

106043 County clerk to furnish forms to applicant 106130 Marriage by person acting In capacity of106050 Affidavit prerequisite to the Issuance of a 106140

person authorizedSolemnizing marriage unlawfully or with

marriage license out authority106060 Consent of parent or guardian 106150 Form of solemnization witnesses solemn106071 Mental and physical prerequisites to mar ization before congregation

riage license 106160 Marriage certificate106074 Appeal from denial of medical certificate Report of marriage clerk

106077 Issuance of marriage license by county 106180106190

Filing a reportLegitimacy of issue of certain imperfect

106079clerk waiting period

False statements in records required byORS 106041 and 106071 prohibited 106210

marriageschit n ofCertain marriagesmarrriage106080 Fees and charges o physicians

declared legitimate

106090 Certificates to indigents 106990 Penalties

CROSS REFERENCES

Conciliation services 107510 to 107610 Presumption of lawful marriage 4136030 109070Divorce annulment separate maintenance Ch 107 Wife and children of commonlaw marriage entitled

Divorce decree ends marriage 107110to workmens compensation benefits 656226

Marriage counseling by community mental health 106010

clinic 430630 Certain agreements upon consideration of marriageMarriage revokes prior will 114130 to be in writing 415804108140Paternity establishing 109070

809Guardian discharged by marriage of ward 126520

SUPERSEDED


106020 106180

marriDetermination of validity of marriages Ch 107 County clerk to report marriages to State Board ofTemporary restriction upon remarriage after di Health 432405

vorce 107110

106060

Consent to marriage of child within jurisdiction ofjuvenile court 419521

Marriage of ward as discharge of guardian 126520106077

Fees relating to marriage records 205320

106190

Certain children declared legitimate 1071505Children of void marriages legitimate 109070

106210

Repeal of section 231010 OCLAand amendmentof section 63102OCLA1951 c455 2

Validity of certain marriages Ch 107

11810

SUPERSEDED

MARRIAGE

106010 Marriage as civil contract ageof parties Marriage is a civil contract whichmay be entered into by males at least 18years of age and females at least 15 yearsof age who are otherwise capable

106020 Prohibited and void marriagesThe following marriages are prohibited andif solemnized within this state are absolutelyvoid

1 When either party thereto had awife or husband living at the time of suchmarriage

2 When the parties thereto are firstcousins or any nearer of kin to each otherwhether of the whole or half blood computing by the rules of the civil law

106030 Voidable marriages When either party to a marriage is incapable of makingsuch contract or consenting thereto for wantof legal age or sufficient understanding orwhen the consent of either party is obtainedby force or fraud such marriage shall bevoid from the time it is so declared by decreeof a court having jurisdiction thereof

106040 Repealed by 1953 c143 9

106041 Necessity for marriage licenseapplication 1 All persons wishing to enterinto a marriage contract shall obtain alicense therefor from the county clerk uponapplication directed to any person or religious organization or congregation authorized by ORS 106120 to solemnize marriagesand authorizing such person organization orcongregation to join together as husband andwife the persons named in the license

2 No license shall be issued by thecounty clerk until the provisions of thissection ORS 166050 106060 and 106071are complied with

3 Each applicant for marriage licenseshall file with the county clerk from whomthe license is sought a written application forthe license on forms provided for this purpose by the State Board of Health whichshall set forth certain statistical data regarding age place of birth sex race occupationresidence and previous marital status of theapplicant and if required the name and address of the affiant under ORS 1060501953c143 21

106043 County clerk to furnish formsto applicant Upon request of the applicantsthe county clerk shall provide each applicantwith forms entitled Confidential Record oPremarital Examination and Medical Cer

106071

tificate for Marriage License as provided hORS 106071 and prepared by the StateBoard of Eugenics1953 c143 2

106050 Affidavit prerequisite to the issuance of a marriage license Before a marriage license issues the applicant thereforshall file with the county clerk an affidavitof some person other than either of the parties seeking the license showing the factsspecified in ORS 106060 or any of them thatmay be necessary to be shown in the particular case except the consent of the parentor guardian and such affidavit shall be sufficient authority to the clerk so far as suchfacts are concerned for issuing the license

106060 Consent of parent or guardianA marriage license shall not issue withoutthe written consent of the parent or guardian if any of the female if she is less than18 years of age or of the male if he is lessthan 21 years of age nor in any case unlessthe parties are each of an age capable ofcontracting marriage If either party has noparent or guardian resident within this stateand the female has resided within the county where the license is applied for for thesix months next preceding such applicationthe license may issue if otherwise properwithout the consent mentioned in this section

106070 Repealed by 1953 c143 91

106071 Mental and physical prerequisites to marriage license 1 Before anycounty clerk issues a marriage license eachapplicant therefor shall file with the clerk amedical certificate for marriage licensesigned by a physician licensed by the StateBoard of Medical Examiners except that foran applicant on active duty with the ArmedForces of the United States the certificatemay be signed by a commissioned medicalofficer of the Armed Forces or PublicHealth Service of the United States In thecertificate the physician shall certify that

a The applicant was given an examination and laboratory test on dates specifiedin the certificate

b In the opinion of the physician theapplicant is not infected with syphilis in acommunicable stage and is free from othercommunicable venereal diseases feeblemindedness mental illness drug addiction orchronic alcoholism

f 2 Before issuing a medical certificatefor marriage license the physician shall

811

SUPERSEDED

106074 DOMESTIC RELATIONS

apply or in a laboratory approved by the the certificate and shall refer all pertinentState Board of Health have applied a recog information to a committee of three apnized blood test approved by the State Board pointed by the State Board of Eugenics toof Health for the determination of syphilis gether with any other or additional evidenceThe physician shall also when considered the applicant may wish to submit If in thenecessary by him opinion of this committee the applicant

a Examine or have examined micro should not marry its decision is final unlessscopically smears from the mucous mem appealed as provided in ORS 106074 to thebranes of the applicant in determining the circuit court

possible presence of gonorrheal infection 1953 c143 4 1959 c377 1

b Perform or have performed a dark 106074 Appeal from denial of medicalfield test for syphilis3 The confidential record of premarital certificate 1 When the applicant has been

examination shall consist of the following refused a medical certificate for marriagelicense because some part of the confidena The applicants sworn statement of tial medical record of premarital examinamedical history

b The laboratory report which shall be tion is unsatisfactory he may appeal within

certified by the laboratory indicating the 90 days from the date of refusal to thecircuit court of the county in which thedates and results of the laboratory tests medical certificate was denied The circuit

c The physiciansreport of mental andphysical examination and court shall try such appeals summarily

d When required the countersigna without a jury upon the evidence containedin the confidential record of premarital exture of the health officer or State Board ofamination and any other pertinent evidenceEugenics The confidential record of pre presented

marital examination shall be filed by theexamining physician with the State Board of 2 The court may either uphold the

Eugenics within three days after completion decision of the examining physician or the

and shall not be open to public inspection committee of the State Board of Eugenicsor direct those persons to issue the medical

4 In case the blood test for syphilis is certificate for marriage license or may recertified as positive or doubtful but in the wand the case for such further examinationopinion of the physician the applicant does as the court determinesnot have syphilis in a communicable stage by 1953 c143 41reason of other clinical findings or previous 106075 Repealed by 1953 c143 9adequate treatment the physician maysecure the approval of the state or local 106077 Issuance of marriage license byhealth officer by countersignature on the county clerk waiting period 1 When theconfidential record of premarital examina county clerk has received the written applition Thereupon the physician may issue the cation and the medical certificate for marmedical certificate for marriage license as riage license from both applicants and allprovided in subsection 1 of this section other legal requirements for issuance of the

5 In case the physician finds evidence marriage license have been complied withof communicable venereal disease he shall he shall issue a marriage license valid for arefuse to issue the medical certificate for period of not more than 30 days after themarriage license except in those instances earliest date of either applicants medicalwhere he or another physician licensed by certificate for marriage license showingthe State Board of Medical Examiners certi when the blood test for syphilis on or prefies that the reason for refusal has been marital examination of either applicant wasremoved through adequate treatment If the made

physician finds no cause for denial or delay 2 The county clerk shall not issue ahe shall issue the medical certificate for marriage license until after a period of sevenmarriage license days has elapsed since the date of the appli

6 If at the time of the examination cation unless a judge of probate of the counthe physician decides that the applicant is ty for good and sufficient cause shown andineligible for a medical certificate for mar in his discretion by an order in writingriage license because of any present com signed by him authorizes the county clerkmunicable venereal disease feebleminded to issue the license before the expiration ofness mental illness drug addiction or such sevenday periodchronic alcoholism he shall delay issuance of 1953 c143 4 1957 c592 l 1963 c429 1

812

SUPERSEDED

MARRIAGE

106079 False statements in records re

quired by ORS 106041 and 106071 prohibited No applicant laboratory director orphysician shall intentionally make any material false statement in connection with therecords or certificates required by ORS106041 and 1060711953c143 41

106080 Fees and charges of physiciansAll fees and charges of any physician makinga premarital examination and issuing a medical certificate for marriage license as provided in ORS 106071 shall not exceed 750for each person examinedAmended by 1953 c143 91

106090 Certificates to indigents Thecounty physicians of the several countiesshall upon request make the necessary examination and issue the certificate which

may properly be issued under ORS 106071without charge to an indigent applicant

106100 Retention of license by personsolemnizing marriage clerks memorandumThe person solemnizing the marriage mayretain the marriage license in his possessionThe clerk who issues the license before delivering it shall enter in the marriage booka memorandum of the names of the partiesthe consent of the parent or guardian ifany the name of the affiant the substanceof the affidavit upon which the license issued and the date of the license

106110 Unlawful issue of marriage license prohibited No county clerk shall issuea license contrary to the provisions of ORS106041 to 106077 or 106100

106120 Who may solemnize marriagerecording of authority 1 Marriages maybe solemnized by any judicial officer of thestate anywhere within his jurisdiction or bycongregations or organizations as indicatedin subsection 2 of ORS 106150 or by anyminister of any church organized carryingon its work and having congregations in thisstate who is authorized by such church tosolemnize marriages and who has filed forecord with the county clerk of the countyin which he resides or in which the marriageis solemnized evidence satisfactory to thecounty clerk that he has been so authorizedIn the case of a nonresident minister suchfiling shall be in any county in which he performs any marriage ceremony but no minister shall be required to file such evidentof authority in more than one county

106150

2 The evidence of authority if approved by the county clerk shall be recordedby him in a book called Authority to Solemnize Marriages for which he shall charge10 cents per folio for recording and indexingbut no charge shall be less than 25 centsWhenever any minister who has filed suchevidence of authority with one county clerksolemnizes any marriage in any other county he shall attach to or indorse upon thecertificate required by ORS 106170 a statement over his signature showing his placeof residence and the county clerk with whomhis evidence of authority to solemnize marriages is recorded

106130 Marriage by person acting incapacity of person authorized A marriagesolemnized before any person professing tobe a judicial officer of this state or a minister of any church or congregation thereinis not void nor shall the validity thereof bein any way affected on account of any wantof power or authority in such person if suchperson was acting at the time in the officeor the capacity of a person authorized tosolemnize marriage and if such marriageis consummated with the belief on the partof the persons so married or either of themthat they have been lawfully joined in marriage

106140 Solemnizing marriage unlawfully or without authority No person shallundertake to join others in marriage knowing that he is not lawfully authorized so todo No person authorized to solemnize marriage shall join persons in marriage contraryto any of the provisions of ORS 106010 to106060 or 106100 to 106190

106150 Form of solemnization witnesses solemnization before congregation1 In the solemnization of a marriage noparticular form is required except that theparties thereto shall assent or declare in thepresence of the minister or judicial officersolemnizing the marriage and in the presence

rof at least two witnesses that they takeeach other to be husband and wife

2 All marriages to which there are nolegal impediments solemnized before or inany religious organization or congregationaccording to the established ritual or formcommonly practiced therein are valid Insuch case a certificate containing the par

e ticulars specified in ORS 106160 shall bemade and filed for record by the person pre

813

SUPERSEDED


siding or officiating in such religious organization or congregation in like manner andwith like effect as in ordinary cases

106160 Marriage certificate The person solemnizing the marriage shall give toeach of the parties to the marriage if required a marriage certificate specifying thenames and residence of the parties and of atleast two witnesses the time and place ofthe marriage the date of the license for themarriage and by whom it was issued

106170 Report of marriage to countyclerk A person solemnizing a marriage shallwithin one month thereafter make and deliver to the county clerk who issued the license for the marriage and to the countyclerk of the county where the marriage tookplace a certificate containing the particularsspecified in ORS 106160 Such certificatemay be in the following form


ss

This is to certify that the undersignedminister or judicial officer as the case maybe by authority of a license bearing datethe of 19 and issued by thecounty clerk of the County of did onthe day of 19 at the house of

in the county and state aforesaid joinin lawful wedlock A B of the County of

and State of and CD of theCounty of and State of with

their mutual assent in the presence of E Fand G H witnesses

Witness my handJ P

Judge justice of the peace or ministeras the case may be

106180 Filing and recording reportThe county clerk shall file the certificatementioned in ORS 106170 and record it in

the record of marriages No fee shall becharged for such filing recording or indexing

106190 Legitimacy of issue of certainimperfect marriages 1 The issue of mar

marry prior to the expiration of six monthsfrom the date of a decree of divorce or declaring a marriage void rendered in a suitto which one of the parents was a party orduring the period of an appeal from such adecree if the marriage is in all other respects regular are legitimate

106200 Repealed by 1957c411 71

106210 Certain marriages validatedchildren of such marriages declared legitimate Any marriage in all other respectslegal and regular but heretofore void by reason of

1 Oregon Laws of 1866 section 1 page10 section 231010 OCLA prohibitingmarriage between a white person and onehaving Negro Chinese Kanaka or Indianblood or

2 Section 2 of the Act entitled An Actto regulate marriages approved October 171862 section 63102 OCLA prohibitingmarriages between a white person and onehaving Negro or Mongolian bloodhereby is declared valid and any child conceived or born of such marriage shall bedeemed legitimate1955 c694 1 1959 c531 1


106990 Penalties 1 Violation of ORS106079 is punishable upon conviction by afine of not more than 100 or by imprisonment in the county jail for not more than 30days or both

2 Violation of ORS 106110 or of ORS

106140 is punishable upon conviction byimprisonment in the penitentiary or countyjail for not more than one year or by a fineof not more than 500 nor less than 100

3 Any medical examiner who wilfullymakes any false statement in any certificate issued as provided in ORS 106071 shallbe punished by the revocation of his licenseto practice his profession within the state

4 Refusal or neglect to comply withsubsection 2 of ORS 106120 or with ORS106170 shall result in the forfeiture of a

riages void under ORS 106020 are legiti penalty of not less than 10 nor more thanmate 50 to be recovered by action for every five

2 All children conceived or born of days of such refusal or neglect

parents who married or who Amended by 1953 c143 9 subsection 1 enactedp may hereafter

814as 1953 c143 5

is

SUPERSEDED

MARRIAGE


1u


815

SUPERSEDED

816

SUPERSEDED


Divorce Annulment and Separation Conciliation Services

C7

Appearance of and notice to defendant 16140County clerks report of divorces to State Board

of Health 432405Divorce or annulment jurisdiction exists although

defendant is nonresident 14010Divorce revokes prior will 114130Juvenile court transfer of certain proceedings in

volving children to 419478Marriage counselling by community mental health

clinic 430630Reciprocal enforcement of support Ch 110Venue in suits for divorce annulment or separa

tion 14070 14080107040

District attorney fee in divorce suits 21130 21250107045

When waiting period does not apply 107560107090

Enforcement of support orders 23775 to 23805107100

Aid in enforcement of parents liability to supportchild receiving public assistance 418135

Enforcement of support orders 23775 to 23805Welfare Recovery Division powers of in connection

with divorce and separate maintenance suits180310 to 180370

107130

Duty of support by parent 109010107150

Certain children declared legitimate 106190107160

Awards to aggrieved party in contempt proceedings 33110

107250

Investigation of parties to separation proceedinghow conducted 107180

Support and maintenance payments administrationand enforcement 23775 to 23805

107260


107280

Dower and curtesy Ch 113107420

Enforcement of support orders or decrees 23775 to23805

107430

Compensation of county officers Ch 204107520

Domestic relations departments in certain circuitcourts 3160 3312

817

DIVORCE AND ANNULMENT 107280 Decreeing disposition of property107010 When void marriage may be annulled 107290 Vacation or modification of decree

107020 When voidable marriage may be annulled 107300 Attorney fees upon appeal from separationcohabitation as defense decree

107030 Grounds for divorce107310 Effect of separation statutes on divorce107040 State as party to annulment and divorce rights or statutessuits service of summons on district

attorney 107320 Conversion of divorce suit Into suit for

107045 Waiting period In divorce suit separation107050 Residence requirements for annulment107060 Residence requirements for divorce DIVORCE ANNULMENT AND SEPARATION107070 Defenses to suit for divorce PROCEEDINGS GENERALLY

107080 Suit to have marriage declared valid re 107410 Powers of court in proceedings for divorcelief permitted annulment or separation

107090 Provisions court may by order make after 107420 Accounting by custodian of children forcommencement of suit and before decree payments for support of such children

107100 Provisions of decree of divorce or annul 107430 Investigation where children involved inment proceeding

107110 Annulment or divorce decree ends mar 107440 Complaint to state only statutory groundsriage remarriage limited facts to be provided in bill of particulars

107120 Decrees and orders as liens duration 107450 Contents of complaint parties minor chil107130 Vacation or modification of decree dren other suits107141 Validation of certain decrees of divorce or CONCILIATION SERVICES

annulment 107510 Definitions107150 Validation of certain marriages 107520 Establishment of conciliation jurisdiction107160 Attorney fees in certain domestic relations 107530 Source of conciliation services county to

matterspay expenses

SEPARATION FROM BED AND BOARD 107540 Conciliation jurisdiction by court effect107210 Grounds for separation 107550 Petition for conciliation jurisdiction con107220 Length of separation vacation or modifi tents

cation of decree 107560 Effect of petition107230 Residence requirements In suit for separa 107570 Notice attendance at hearings

tion 107580 Restriction of services priority where chil107240 Condonation of separation cause dren involved

107250 Provisions court may make after com 107590 Court orders reconciliation agreementsmencement of suit and before decree 107600 Privacy of hearings confidentiality of com

107260 Provisions of decree of separation munications records closed107270 Provisions court may make pending appeal 107610 Qualifications of conciliation counselors

CROSS REFERENCES

Appearance of and notice to defendant 16140County clerks report of divorces to State Board

of Health 432405Divorce or annulment jurisdiction exists although

defendant is nonresident 14010Divorce revokes prior will 114130Juvenile court transfer of certain proceedings in

volving children to 419478Marriage counselling by community mental health

clinic 430630Reciprocal enforcement of support Ch 110Venue in suits for divorce annulment or separa

tion 14070 14080107040

District attorney fee in divorce suits 21130 21250107045

When waiting period does not apply 107560107090

Enforcement of support orders 23775 to 23805107100


Enforcement of support orders 23775 to 23805Welfare Recovery Division powers of in connection

with divorce and separate maintenance suits180310 to 180370

107130

Duty of support by parent 109010107150

Certain children declared legitimate 106190107160

Awards to aggrieved party in contempt proceedings 33110

107250

Investigation of parties to separation proceedinghow conducted 107180


107260


107280

Dower and curtesy Ch 113107420

Enforcement of support orders or decrees 23775 to23805

107430

Compensation of county officers Ch 204107520

Domestic relations departments in certain circuitcourts 3160 3312

817

SUPERSEDED


DIVORCE AND ANN HAIU 11TT107010 When void marriage may be an

nulled A marriage may be declared voidfrom the beginning at the suit of either party for any of the causes specified in ORS106020 and whether so declared or notshall be deemed and held to be void in anyaction suit or proceeding in which it maycome into question A marriage once declared valid by the decree of a court havingjurisdiction thereof in a suit for that purpose cannot afterwards be questioned forthe same cause directly or otherwise

107020 When voidable marriage maybe annulled cohabitation as defense A marriage shall not be declared void for any ofthe causes specified in ORS 106030 exceptat the suit or claim of the party laboringunder the disability or upon whom the forceor fraud was imposed or practiced The suitor claim of such party shall fail if it appearsthat the parties freely cohabitated togetheras husband and wife after the suing orclaiming party arrived at legal age acquiredsufficient understanding was restored toreason was freed from the force or discovered the fraud as the case may be

107030 Grounds for divorce The disso

lution of the marriage contract may be declared at the suit or claim of the injuredparty for any of the following causes

1 Impotency existing at the time of themarriage and continuing to the commencement of the suit

2 Adultery but a confession of adultery whether in or out of the pleadings isnot of itself sufficient to justify a decree ofdivorce

3 Conviction of a felony4 Habitual gross drunkenness con

tracted since marriage and continuing forone year prior to the commencement of thesuit

5 Wilful desertion for the period ofone year

6 Cruel and inhuman treatment or personal indignities rendering life burdensome

T 7 Permanent mental illness where thedefendant has been adjudged mentally ill bya court of competent jurisdiction and suchmental illness has been continuous since such

adjudication for at least three years and theperson has been confined in either a privateor public institution upon the grounds ofmental illness for the major portion of thethree years immediately preceding the commencement of the suit and where it appears

818

to the satisfaction of the court by competentevidence that the illness is incurable No

decree of divorce shall be granted under thissubsection unless there is presented to thecourt as evidence a certified copy of theorder of adjudication of mental illness Theprevailing party shall not be awarded anyproperty or property right of a mentally illspouse notwithstanding the provisions ofORS 107100 except that upon competentsatisfactory evidence other than the testimony of the prevailing party the court mayaward to the prevailing party such propertyor property right standing in the name of thementally ill spouse as has been acquired exclusively by the prevailing partyAmended by 1953c439 2

107040 State as party to annulmentand divorce suits service of summons ondistrict attorney 1 In any suit for the dissolution of the marriage contract or to havea marriage declared void the state is to bedeemed a defendant a n d the plaintiffshall cause a summons to be served uponthe district attorney of the district withinwhich the suit is commenced or his duly appointed deputy at least 10 days before thetime at which the defendant is required toappear and answer The district attorneyso far as may be necessary to prevent fraudor collusion in the suit shall control the proceedings on the part of the defense and incase the defendant does not appear thereinor defend against the same in good faithshall make a defense therein on behalf ofthe state

2 The court shall not hear or determine any suit for a divorce until service hasbeen made upon the district attorney asprovided in this section except where thedistrict attorney or his duly appointed deputy waives the provisions of this sectionby appearing in person at the trial of thecause or by written acknowledgment of service waiving time for his appearance therein

107045 Waiting period in divorce suit1 Except as provided in ORS 107090 andin subsection 2 of this section no trial orhearing on the merits in a suit for the dissolution of a marriage contract upon eitherof the grounds stated in subsections 4 or6 of ORS 107030 shall be had until afterthe expiration of 60 days from the date of

a The service of the summons and complaint upon the defendant or

b The first publication of summonsunder ORS 15140

SUPERSEDED

DIVORCE ANNULMENT SEPARATION CONCILIATION SERVICES 107090

2 The court may in its discretion onwritten motion supported by affidavit setting forth grounds of emergency or necessityand facts which satisfy the court that immediate action is warranted or required toprotect the substantive rights or interestsof any party or person who might be affected by a final decree or order in the proceedings hold a hearing and grant a decree ofdivorce prior to the expiration of the waitingperiod In such case the grounds of emergency or necessity and the facts with respectthereto shall be found and recited in thedecree1957 c444 1

107050 Residence requirements for annulment If the marriage was solemnizedin this state a suit may be maintained tohave it declared void if the plaintiff is aninhabitant of the state at the time the suit

is commenced If the marriage was not solemnized in this state a suit may be maintained to have it declared void if the plaintiff is an inhabitant of the state at the timethe suit is commenced and has been for one

year prior thereto which residence is sufficient to give the court jurisdiction

107060 Residence requirements for divorce In a suit for dissolution of the mar

riage contract the plaintiff must be an inhabitant of the state at the time the suitis commenced and must have been such in

habitant for one year prior thereto Suchresidence is sufficient to give the court jurisdiction without regard to the place wherethe marriage was solemnized or where thecause of suit arose

107070 Defenses to suit for divorce

1 In a suit for dissolution of the marriagecontract on account of adultery the defendant may admit the adultery and show in barof the suit that

a The act was committed by the procurement or with the connivance of the

plaintiffb The act has been forgiven expressly

or by implication from the voluntary cohabitation of the parties after the injured partyhad knowledge thereof

c The plaintiff has been guilty ofadultery also without the procurement oconnivance of the defendant and not forgiven as provided in paragraph b of thissubsection or

d The suit has not been commencewithin one year after the discovery of theact by the plaintiff

2 When the suit is for any of thecauses specified in subsections 3 4 5or 6 of ORS 107030 the defendant mayadmit the charge and show in bar of thesuit that the act was committed by the procurement of the plaintiff or that it has beenexpressly forgiven and in case the suit isfounded on subsection 3 of ORS 107030the defendant may also show in bar thereofthat the suit was not prosecuted within oneyear after the cause of suit accrued to theplaintiff

107080 Suit to have marriage declaredvalid relief permitted When either husbandor wife claims or pretends that the marriageis void or voidable as provided in ORS106020 and 106030 respectively it may bedeclared valid and lawful at the suit of theother In such suit the court may if thepleadings and proofs authorize it declarethe marriage void from the beginning orfrom the time of the decree or that it isvalid and binding on the parties thereto

107090 Provisions court may by ordermake after commencement of suit and before decree 1 After the commencement ofa suit for dissolution of the marriage contractor to have a marriage declared void and before a decree therein the court may in itsdiscretion upon proper showing of the necessity therefor provide by order as follows

a That the husband pay to the clerkof the court such amount of money as maybe necessary to enable the wife to prosecuteor defend the suit as the case may be andalso such amount of money as may be necessary to support and maintain the wifeduring the pendency of the suit

b For the care custody and maintenance of the minor children of the marriageduring the pendency of the suit

c For the restraint of the husband orwife from in any manner molesting or interfering with the other or the minor children

d That if minor children reside in thefamily home and the court considers it necessary for their best interests to do so thecourt may require either the husband or wifeto move out of the home for such period of

r time and under such conditions as the courtmay determine whether the home is rentedowned or being purchased by the husbandwife or both

d e Restraining and enjoining either thehusband or wife or both from encumberingor disposing of any of their property real

819

SUPERSEDED

107100 DOMESTIC RM ATIONS

or personal during the pendency of the suitexcept as ordered by the courtf That in case default is made in the

payment of any moneys falling due underthe terms of an order pending suit any suchdelinquent amount shall be entered anddocketed as a judgment and execution mayissue thereon to enforce payment thereofin the same manner and with like effect as

upon a final decree The remedy provided inthis subsection shall be deemed cumulativeand not exclusive

2 The court shall not require an undertaking in case of the issuance of an orderunder either paragraph c d or e ofsubsection 1 of this sectionAmended by 1953 c602 2 1955 c648 4 1959 c5721

107100 Provisions of decree of divorce

or annulment 1 Whenever a marriage isdeclaxed void or dissolved the court haspower further to decree as follows

a For the future care and custody ofthe minor children of the marriage as it maydeem just and proper In determining custody the court shall consider the best interests of the child and the past conduct anddemonstrated moral standards of each of the

parties No preference in custody shall begiven to the mother over the father for thesole reason that she is the mother

b For the recovery from the party notallowed the care and custody of such children such amount of money in gross or ininstalments or both as may be just andproper for such party to contribute towardthe nurture and education of such children

c For the recovery from the party atfault or under unusual circumstances in thediscretion of the court from the party notat fault such amount of money in gross orin instalments or both as may be just andproper for such party to contribute to themaintenance of the other provided that incase recovery from the party not at fault isallowed the decree must contain special findings of the facts constituting the unusual circumstances provided further that thecourt may approve ratify and decree voluntary property settlement agreements thatprovide for contribution by the prevailingparty to the maintenance and support of theparty in fault In case a divorce is grantedunder the provisions of subsection 7 ofORS 107030 the court may require theprevailing party to contribute to the supportand maintenance of the mentally ill party to

820

such extent and in such manner as the court

may determine to be just and equitabled For the delivery to one party of such

partys personal property in the possessionor control of the other at the time of givingthe decree

e For the appointment of one or moretrustees to collect receive expend manageor invest in such manner as the court directs any sum of money decreed for themaintenance of a party or the nurture andeducation of minor children committed to

such partys care and custodyf To change the name of the wifeg A judgment against one party in

favor of the other for any sums of moneyfound to be then remaining unpaid upon anyenforceable order or orders theretofore dulymade and entered in the proceedings pursuant to any of the provisions of ORS 107090and for any such further sums as additionalattorney fees or additional costs and expenses of suit or defense as the court findsreasonably and necessarily incurred by suchparty or in the absence of any such orderor orders pendente lite a like judgment forsuch amount of money as the court findswas reasonably necessary to enable suchparty to prosecute or defend the suit as thecase may be

2 If an appeal is taken from a decreedeclaring a marriage void or dissolved orfrom any part of a decree rendered in pursuance of the provisions of ORS 107010 to107100 the court making such decree shallprovide for the temporary support of theminor children of the parties thereto andmay provide for the temporary support ofthe party found not to be at fault The ordermay be modified at any time by the courtmaking the decree appealed from shall provide that the support money be paid inmonthly instalments and shall further provide that it is to be in effect only during thependency of the appeal to the SupremeCourt No appeal to the Supreme Court liesfrom any such temporary order

3 If an appeal is taken from the decreeor other appealable order in a suit for dissolution or annulment of the marriage contract and the Supreme Court awards costsand disbursements to the prevailing partyit may also award to that party as part ofthe costs such additional sum of money asit may adjudge reasonable as an attorneyfee on the appeal

4 Whenever a marriage is declaredvoid or dissolved the court shall make such

u

is

SUPERSEDED


lu

J

C

division or other disposition between theparties of the real or personal property orboth of either or both of the parties as maybe just and proper in all the circumstancesin addition to any further relief decreed asprovided for in subsection 1 2 or 3of this section

5 If as a result of a suit for the dissolution or annulment of a marriage theparties to such suit become owners of anundivided interest in any real or personalproperty or both either party may maintainsupplemental proceedings by filing a petitionin such suit for the partition of such real orpersonal property or both within two yearsfrom the entry of said decree showingamong other things that the original partiesto such decree and their joint or severalcreditors having a lien upon any such realor personal property if any there be constitute the sole and only necessary parties tosuch supplemental proceedings The procedure in the supplemental proceedings shallbe as far as applicable the procedure provided for in ORS 105205 to 105405 for thepartition of real property and the courtgranting such decree and the judges thereofshall have in the first instance and retain

jurisdiction in equity for such purpose ofpartition as provided for in this subsectionAmended by 1953 c553 2 1953 c635 2 1961 c5403 1963 c476 1

107110 Annulment or divorce decree

ends marriage remarriage limited 1 Adecree declaring a marriage void or dissolvedat the suit or claim of either party terminates the marriage as to both parties exceptthat neither party shall be capable of contracting marriage with a third person untilthe expiration of six months from the dateof the decree or if an appeal is taken untilthe suit is determined on appeal whicheveris later

2 If either party does so contract heis liable therefor as if the decree had not

been given

107120 Decrees and orders as liensduration No order or decree for the future

payment of money in gross or in instalmentsentered under the subsections 1 and 2of ORS 107100 and Acts supplementarythereof shall continue to be alien on realproperty for a period of more than 10 yearsfrom the date of such order or decree unless

it is renewed as provided in ORS 18360821

107130 Vacation or modification of decree 1 The court or judge thereof has thepower at any time after a decree is givenupon the motion of either party to

a Set aside alter or modify so muchof the decree as may provide for the appointment of trustees for the support andcustody of minor children for the nurtureor education thereof or both or for themaintenance of either party to the suit and

b Make an order after personal service within this state of notice to the other

party providing for the future support orcustody of minor children residing in thestate who at the time the decree was givenwere not residents of the state or were unknown to the court or were erroneouslyomitted from the decree

2 The decree is a final judgment as toany instalment or payment of money whichhas accrued up to the time either partymakes a motion to set aside alter or modifythe decree and the court does not have thepower to set aside alter or modify suchdecree or any portion thereof which provides for any payment of money either forthe nurture or education of minor childrenor the maintenance of either party to thesuit which has accrued prior to the filingof such motion

3 The court may assess a reasonableattorneys fee against an unsuccessful moving party who files a motion to set asidealter or modify a decree as in this sectionprovidedAmended by 1961c429 1

107140 Paragraph f of subsection 1 of1959 Replacement Part enacted as 1955 c72 l repealed by 1961c551 2

107141 Validation of certain decrees of

divorce or annulment Any decree of divorceor annulment entered prior to January 11961 otherwise valid but the validity ofwhich may be affected by failure of thecourt records to evidence the service of

process upon the district attorney or thepresence of the district attorney at the finalhearing is in all respects valid1961 c551 1

107150 Validation of certain marriages1 The subsequent marriage of a party toa divorce validated by paragraph b of subsection 1 of ORS 107140 hereby is validated in so far as the validity of such marriage is affected by any irregularity mentioned in paragraph b of subsection 1of ORS 107140

SUPERSEDED


2 The subsequent marriage of a partyto a divorce validated by paragraph c ofsubsection 1 of ORS 107140 hereby isvalidated in so far as the validity of suchmarriage is affected by any irregularitymentioned in paragraph c of subsection1 of ORS 107140

3 The subsequent marriage of a partyto a divorce validated by paragraph d ofsubsection 1 of ORS 107140 hereby isvalidated in so far as the validity of suchmarriage is affected by any irregularitymentioned in paragraph d of subsection1 of ORS 107140

4 All marriages made prior to April21 1947 hereby are declared valid wherethe period of six months had not elapsedfrom the date of a decree declaring a marriage void or dissolved in which suit orclaim either party to such subsequent marriage was a party if the subsequent marriage was in all other respects legal andregular

5 Any marriage in all other respectslegal and regular made prior to January 11959 and before the expiration of six monthsfrom the date of a decree declaring a previousmarriage of one or both of the contractingparties void or dissolved hereby is declaredvalid and any child conceived or born ofsuch marriage shall be deemed legitimateSubsection 5 enacted as 1953 c491 1 1959 c2281

107160 Attorney fees in certain domestic relations matters In any proceedingbrought under ORS 108110 108120 and109100 and in any contempt proceedingbrought to compel compliance with any otherorders provided in ORS 107090 or with thedecree in any suit to avoid or dissolve themarriage contract or for separate maintenance or separation from bed and board thecourt or judge thereof may make an orderawarding to the petitioner relator or defendant prevailing in such proceeding a sum ofmoney determined to be reasonable as anattorneys fee therein The order shall beentered and docketed as a judgment andexecution may issue thereon in the samemanner and with like effect as upon a finaldecree


107170 1955c648l repealed by 1961c210 6

107180 1959 c534 l renumbered 107430

107190 to 107200 Reserved for expansionl

SEPARATION FROM BED AND BOARD

107210 Grounds for separation 1 Apermanent separation of married personsfrom bed and board may be decreed by thecircuit court for adultery if the adulterousact was not the result of connivance or con

sent of the parties and the plaintiff is notguilty of the same offense

2 A separation of married personsfrom bed and board for a limited or unlim

ited time may be decreed by the circuitcourt for the following causes

a Wilful desertion or where the wifeis plaintiff neglect or refusal to provide forher during a period of six months

b Conviction of a felonyc Habitual gross drunkenness con

tracted since marriage and continuing forone year prior to the commencement of thesuit

d Cruel and inhuman treatment orpersonal indignities rendering life burdensome

107220 Length of separation vacationor modification of decree The court shall fix

such length of time as in its estimation thecause for separation will continue to existAt the expiration of such time the decreeshall be of no further force or affect unlessupon the application of either party thecourt shall upon good cause shown extendor renew such time When the separationfrom bed and board is for an unlimited timeif either party believes that the cause forseparation has ceased to exist he may applyto the court for an order vacating the decreeor modifying it on such terms as may appearto be just and proper

107230 Residence requirements in suitfor separation In any suit for the separation from bed and board one of the partiesmust be a resident and inhabitant of this

state at the commencement of the suitwhich residence shall be sufficient to givethe court jurisdiction thereof

107240 Condonation of separationcause The offending spouse may plead indefense that the cause for the separationhas been condoned

107250 Provisions court may make after commencement of suit and before decree

After the commencement of a suit for separation from bed and board and before the

decree therein the court may in its discretion provide as follows

822

J

SUPERSEDED


1 That the husband pay to the clerk ofthe court such amount of money as may benecessary to enable the wife to prosecute ordefend the suit as the case may be and alsosuch amount of money as may be necessaryto support and maintain her during the pendency of the suit

2 For the care custody and maintenance of the minor children of the marriageduring the pendency of the suit

3 That if minor children reside in thefamily home and the court considers it necessary for their best interests to do so thecourt may require either the husband or wifeto move out of the home for such period oftime and under such conditions as the court

may determine whether the home is rentedowned or being purchased by the husbandwife or both

4 For the freedom of the wife fromthe control of the husband during the pendency of the suit

5 That in case default is made in thepayment of any moneys falling due underthe terms of an order pending suit any suchdelinquent amount shall be entered and docketed as a judgment and execution may issuethereon to enforce payment thereof in thesame manner and with like effect as upona final decree The remedy provided in thissubsection is cumulative and not exclusiveAmended by 1955c648 5 1959c572 2

107260 Provisions of decree of separation Whenever the court grants a decree ofseparation from bed and board it has powerfurther to decree as follows

1 For the future care and custody ofthe minor children of the marriage as it maydeem just and proper having due regard tothe age and sex of such children and unlessotherwise manifestly improper giving thepreference to the party less at fault

2 For the recovery from the party notallowed the custody and care of such children such amount of money in instalmentsas may be just and proper for such party tocontribute toward the nurture and education of such children

3 For the recovery from a party atfault such amount of money in instalmentsas may be just and proper for such party tocontribute to the maintenance of the other

4 For the delivery to either spouse ofhis personal property in the possession ocontrol of the other at the time of grantingthe decree

5 For the appointment of one or moretrustees to collect receive expend manageor invest in such manner as the court directs

any sum of money decreed for the maintenance of either spouse and for the nurtureand education of their minor children

107270 Provisions court may make

pending appeal If an appeal is taken fromall or part of a decree rendered in pursuanceof ORS 107260 the court which made thedecree shall provide for the temporary support of the minor children of the partiesthereto and may provide for the temporarysupport of the party in whose favor a decreefor maintenance was rendered Such order

may be modified at any time by the courtgranting the decree appealed from shallprovide for such support money to be paidin instalments and shall further providethat it is to be in effect only during thependency of the appeal to the SupremeCourt No appeal to the Supreme Court liesfrom any such temporary order

107280 Decreeing disposition ofpropertyWhenever a decree of permanent or unlimited separation from bed and board has beengranted the party at whose prayer suchdecree was granted shall be awarded in individual right such undivided or several interestin any right interest or estate in real orpersonal property owned by the other orowned by them as tenants by the entiretyat the time of such decree as may be justand proper in all circumstances in additionto the decree of maintenance The courtmay in making such award decree thatdower and curtesy as well as homesteadrights under ORS 116010 and the electionprovided in ORS 113050 are extinguishedand barredAmended by 1959c572 31

107290 Vacation or modification of de

cree Upon motion of either party at anytime after a decree is given the court mayset aside alter or modify so much of thedecree as provides for the appointment oftrustees for the care and custody of theminor children for the nurture or educationthereof or both or for the maintenance ofeither party to the suit and such decree isa final judgment as to any instalments orpayments of money provided for therein

r which have accrued up to the time eitherparty makes such a motion The court shallnot have the power to set aside or modify

823

SUPERSEDED


such decree or any part thereof which provides for payments of money either for thenurture or education of the minor childrenor the maintenance of either party to thesuit which have accrued prior to the filingof such motion

107300 Attorney fees upon appeal fromseparation decree If an appeal is takenfrom all or part of a decree rendered in pursuance of ORS 107250 107260 107280 or107290 the Supreme Court may award attorneys fees in addition to those awardedunder ORS 107160

107310 Effect of separation statuteson divorce rights or statutes ORS 107210to 107320 are not intended to and shall notrepeal or affect any existing law pertainingto the granting of an absolute divorce Theobtaining of a temporary separation underORS 107210 to 107320 shall not be a bar tothe entering ofa suit for absolute divorce byeither party No decree of divorce grantedby a court of this or any other state uponconstructive service of summons shall affectan award of maintenance made pursuant toORS 107250 107260 or 107270

107320 Conversion of divorce suit intosuit for separation If after a suit for divorce is commenced and prior to the entryof final decree the court finds that neitherparty is entitled to a decree of divorce thecourt may allow upon motion of eitherparty amendment of the pleadings to conform to the requirements of a suit for separation from bed and board and then mayallow the suit to proceed as provided in ORS107210 to 107310


DIVORCE ANNULMENT ANDSEPARATION PROCEEDINGS

GENERALLY

107410 Powers of court in proceedingsfor divorce annulment or separation Whena court is sitting in proceedings for divorceannulment or separation it shall have fullequity powers1961 c418 1

107420 Accounting by custodian of

children for payments for support of suchchildren Whenever a court in a proceedingfor divorce annulment or separation frombed and board either before or after decreeawards to a party having the care and cus

tody of minor children money for the support of such children the court may in itsdiscretion require an accounting from thecustodian of the children with reference tothe use of the money1961 c340 1

107430 Investigation where children

involved in proceeding 1 Whenever acomplaint is filed for divorce annulment orseparation from bed and board or whenevera habeas corpus proceeding or motion tomodify an existing decree is before the courtthe court having jurisdiction may in casesin which there are children involved causean investigation to be made as to the character family relations past conduct earningability and financial worth of the parties tothe action for the purpose of protecting thechildrens future interests Such findingsshall be offered as and subject to all rules ofevidence

2 The court on its own motion maycite either party to the action to appear andtestify as a witness during this investigation

3 The court having jurisdiction ofcases described in subsection 1 of this section may hire and fix the salaries of suchprofessional and clerical personnel as arenecessary to carry out the purposes of thissection The salaries of the professional andclerical assistants shall be paid in the samemanner as the salaries of county officersare paidFormerly 107180 amended by 1963 c223 1

107440 Complaint to state only statutory grounds facts to be provided in bill ofparticulars 1 Notwithstanding the provisions of ORS 16210 in a domestic relationssuit as defined in ORS 107510 the complaint or cross complaint shall state the statutory grounds for the suit without detailingallegations which constitute the basis forsuch grounds The facts relied upon as thestatutory ground for the suit shall be furnished in a verified bill of particulars servedand filed prior to the time of the trial orwithin 10 days after a written demand therefor by the other party If the bill of particulars is not furnished within the 10day periodafter demand or by the time of the trial ifno demand is made the complaint or crosscomplaint shall be dismissed by the courtWhen a bill of particulars has been demanded the time to answer or reply shallbegin to run from the time such bill of particulars is furnished

824

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SUPERSEDED

DIVORCE ANNULMENT SEPARATION CONCILIATIO SERVICES 107550

2 The court may order either party tofurnish a verified bill of particulars or if thebill of particulars furnished is insufficientmay require additional facts to be suppliedso as to advise the other party of the factsrelied upon as the statutory ground for thesuit

1963 c434 14

107450 Contents of complaint partiesminor children other suits The complaintin a domestic relations suit as defined inORS 107510 in addition to the requirementsof ORS 16210 shall state the following

1 The addresses ages and wage earnerSocial Security Account numbers if knownof the parties and the date and place of theirmarriage

2 The names addresses and dates ofbirth of the parties children who are under21 years of age and

3 Whether a domestic relations suit involving the same marriage is pending in anyother court in this or any other state if theexistence of such suit is known1963 c434 13

CONCILIATION SERVICES

107510 Definitions As used in ORS21112 107440 107450 and 107510 to107610

1 Conciliation jurisdiction means domestic relations conciliation jurisdiction andauthority exercised under ORS 21112107440 107450 and 107510 to 107610 by acircuit court in any controversy existing between spouses which may unless a reconciliation or a settlement of the controversy iseffected result in the dissolution or annulment of the marriage or in disruption of thehousehold

2 Conciliation services means domestic relations counseling and related servicesobtained by a circuit court exercising conciliation jurisdiction and used by the court inexercising that jurisdiction

3 Domestic relations suit means suitfor dissolution of the marriage contract annulment of the marriage or separation frombed and board1963 c434 1

of domestic relations suits filed in such

county may exercise conciliation jurisdictionand obtain use and provide conciliation services as provided in ORS 21112 107440107450 and 107510 to 1076101963 c434 2

107530 Source of conciliation servicescounty to pay expenses 1 A circuit courtexercising conciliation jurisdiction may obtain conciliation services by

a Employing or contracting for counselors and other personnel or

b Contracting or entering into agreements with public or private agencies to provide conciliation services to the court

2 Subject to the provisions of the LocalBudget Law the compensation and expensesof personnel performing conciliation servicesfor the circuit court and other expenses ofproviding conciliation services shall be paidby the county1963 c434 3

107540 Conciliation jurisdiction bycourt effect Whenever any domestic relations suit is commenced in a circuit court

exercising conciliation jurisdiction and providing conciliation services the court mayin its discretion exercise conciliation jurisdiction over the controversy and over theparties thereto and all persons having anyrelation to the controversy If within 45days after the court commences to exerciseconciliation jurisdiction a reconciliation or asettlement of the controversy has not beeneffected the domestic relations suit shall proceed as if the court had not exercised concili

ation jurisdiction and if the suit is for dissolution of the marriage contract the waiting period prescribed by ORS 107045 doesnot apply to the suit1963 c434 4

107520 Establishment of conciliationjurisdiction The circuit court for any countyafter making a determination that the socialconditions of the county require conciliationservices for the full and proper consideration

82r

107550 Petition for conciliation jurisdiction contents 1 Whenever eitherspouse or both spouses file in a circuit courtexercising conciliation jurisdiction and providing conciliation services a petition requesting the court to exercise conciliation jurisdiction with respect to a controversy existingbetween the spouses the court shall exerciseconciliation jurisdiction over the controversyand over the parties thereto and all personshaving any relation to the controversy

2 The petition shalla Allege that a controversy exists be

tween the spouses and request the aid of the

SUPERSEDED


court to effect a reconciliation or a settle

ment of the controversyb State the name address and age of

each spouse and the date and place of marriage

c State the name address and age ofeach minor child of the spouses or eitherspouse

d State if known whether a domesticrelations suit involving the same marriage ispending in any other court in this or anyother state and

e State such other information as thecourt by rule may require

3 If a domestic relations suit in whichthe spouses are parties has been commencedin the court no fee shall be charged for filinga petition under this section If a domesticrelations suit in which the spouses are partieshas not been commenced in the court no feeshall be charged for filing the petition1963 c434 51

107560 Effect of petition A petitionmay be filed under ORS 107550 whether ornot a domestic relations suit in which thespouses are parties has been commenced Ifa domestic relations suit has not been com

menced neither spouse may commence anydomestic relations suit within 45 days afterthe date the petition is filed but the courtmay use its full equity powers to protect andpreserve the rights of the spouses If withinthe 45day period a reconciliation or a settlement of the controversy has not beeneffected either spouse may commence a domestic relations suit and if the suit is fordissolution of the marriage contract thewaiting period prescribed by ORS 107045does not apply to the suit1963 c434 6

107570 Notice attendance at hearingsWhen a circuit court undertakes to exerciseconciliation jurisdiction pursuant to ORS107540 or 107550 it shall refer the matterto the conciliation services provided by thecourt The court shall cause notice to be

given to the spouses of the undertaking toexercise conciliation jurisdiction and theauthority therefor whether under ORS107540 or 107550 and of the time and placeof any hearing conference or other proceeding scheduled pursuant to the exercise ofconciliation jurisdiction The court may require the attendance of the spouses and ofwitnesses as in other civil cases1963 c434 7

107580 Restriction of services prioritywhere children involved Whenever a circuitcourt determines that the conciliation serv

ices provided by it are not adequate for theproper disposition of all matters that maybe referred to the services under ORS

107570 the court by rule may restrict theservices provided but shall give priority tocontroversies in which the spouses have children under 15 years of age whose welfareis involved in the outcome of the controversy1963 c434 8

107590 Court orders reconciliationagreements 1 A circuit court undertakingto exercise conciliation jurisdiction pursuantto ORS 107540 or 107550 with the consentof the spouses or after a hearing may makeorders with respect to the conduct of thespouses and with respect to the subject ofthe controversy as it considers necessary topreserve the marriage or to implement thereconciliation of the spouses but an ordershall not be effective for more than 60 daysunless the spouses consent to a continuanceof the order

2 Any reconciliation agreement between the spouses may be reduced to writing and with the consent of the spouses thecourt may make an order requiring thespouses to comply fully with the agreement1963 c434 9

826

107600 Privacy of hearings confidentiality of communications records closed 1All hearings conferences and other proceedings held pursuant to circuit court exerciseof conciliation jurisdiction pursuant to ORS107540 or 107550 shall be held in privateand all persons other than officers of thecourt conciliation services personnel thespouses their counsel and witnesses shall beexcluded The court may direct that conferences with counselors be held without coun

sel of either spouse being present2 All communications verbal or writ

ten from spouses to counselors made in conferences shall be confidential within themeaning of paragraph e of subsection 1of ORS 44040

3 All records of the court with respectto exercise of conciliation jurisdiction shallbe closed However any petition filed underORS 107550 any written reconciliationagreement between the spouses and anycourt order made in the matter may beopened to inspection by either spouse or his

SUPERSEDED


counsel upon written authorization by ajudge of the court1963 c434 10

107610 Qualifications of conciliationcounselors Persons performing conciliationservices pursuant to ORS 21112 107440107450 and 107510 to 107610 shall haveminimum educational and experience qualifi

cations of a mastersdegree in the behavioral sciences or a bachelors degree and oneyears graduate training both in the behavioral science plus two years paid case workor clinical experience or a bachelorsdegreein the behavioral sciences plus four yearspaid case work or clinical experience1963 c434 12


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill andthat the sections in this chapter are correct copies of the enrolled sections with the exceptionof the changes in form permitted by ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haley

on December 1 1963 Legislative Counsel

827

SUPERSEDED

828

SUPERSEDED

Chapter 108


Husband and Wife Relationship Property Rights

GENERAL PROVISIONS

108010 Removal of wifes civil disabilities wifescivil rights same as husbands

108020 Nonliability for other spouses obligations108030 Liability of husband for civil injuries com

mitted by wife108040 Liability for expenses of family or educa

tion of children time for commencingaction liability after divorce separationor abandonment

108050 Nonllability of wifes property for husbands obligations

108060 Noninterest of one spouse in property ofother

108070 Rights of abandoned wife adjudication ofabandonment

108080 Civil remedies between spouses in respectof separate property

108090 Conveyances transfers and liens betweenspouses creation and dissolution ofestates by entireties validation of priordissolutions

108100 Husband and wife as attorney in fact foreach other

108110 Petition for support of wife and children108120 Order on hearing petition compelling at

tendance of witnesses decree or order108130 Fees

108140 Prenuptial property agreements

COMMIINITY PROPERTY MATTERS108510 Revocation of election to come under terms

of Community Property Law of 1943108515 Disposition of fees108520 Effect of Act repealing Community Prop

erty Law of 1947108530 Removal of community property status by

agreement108540 Removal of community property status by

death of either spouse108550 Reliance on spouses right to deal with

property in his name

CROSS REFERENCES

Age of majority of married persons 109520Cost of care of person at state institution relatives

liability 179630Dower and curtesy rights 93240 Ch 113 114020Interment rights of spouses 97130 97570 97580

97630 97640Maintenance of mentally ill and mentally deficient

Ch 179

Parents liability for tort to property by child30770

Referral of relative to out patient clinic of statehospital 426224

Right to deferred or unpaid balance of purchaseprice under contract of sale of real property93240

Welfare aid to blind claims not enforced againstcertain property of widow 416310

108010

Validity of married womens deeds before 190793810

108040

Criminal nonsupport 131360 167605Juvenile Compact Administrator power to recover

expenses 417060Juvenile court transfer of certain proceedings to

419478

Support of surviving spouse and minor children116005 to 116025

108050

Wifes property not liable for husbands debtsConst Art XV 5

108090

Conveyance by spouse of insane person 93170Conveyance of interment space 97580Validity of married womens deeds before 1907

93810When conveyance creates tenancy in common

93180108110


Allowance of attorneysfees 107160Criminal nonsupport 131360 167605Enforcement of duty to support dependents Ch

110

Remarriage and issue no defense in nonsupportactions 167630

Support of surviving spouse and minor children116005 to 116025

Welfare Recovery Division powers of in supportcases 180310 to 180370

108120

Payments under support or maintenance orders ordecrees to be made to clerk of court contemptproceedings to enforce 23775 to 23805

829

SUPERSEDED

830

SUPERSEDED

HUSBAND AND WEFE RELATIONSHIP PROPERT RIGHTS 108090

GENERAL PROVISIONS

108010 Removal of wifes civil disabili

ties wifes civil rights same as husbandsAll laws which impose or recognize civil disabilities upon a wife which are not imposedor recognized as existing as to the husbandhereby are repealed and all civil rights belonging to the husband not conferred uponthe wife prior to June 14 1941 or which shedoes not have at common law hereby areconferred upon her including among otherthings the right of action for loss of consortium of her husband

108020 Nonliability for other spousesobligations Neither husband nor wife isliable for the debts or liabilities of the otherincurred before marriage and except as otherwise provided in ORS 108040 they are notliable for the separate debts of each othernor is the rent or income of property ownedby either husband or wife liable for the separate debts of the other

108030 Liability of husband for civilinjuries committed by wife For all civilinjuries committed by a married womandamages may be recovered from her aloneand her husband shall not be responsibletherefor except in case where he wouldbe jointly responsible with her if the marriage did not exist

108040 Liability for expenses of familyor education of children time for commencing action liability after divorce separationor abandonment The expenses of the familyand the education of the children are chargeable upon the property of both husband andwife or either of them and in relation thereto they may be sued jointly or separatelyprovided however that

1 In cases where it is sought to holdthe wife responsible for such expenses eitherjointly or separately the action must becommenced within two years after the causeof action accrued

2 After divorce the wife is in no wiseresponsible for debts or family expensescontracted by the husband while they wereliving together

3 After the wrongful and wilful separation or abandonment of the husband byhis wife the husband shall in no wise be re

sponsible for debts contracted by the wifesubsequent to such abandonment or separation except for maintenance support andeducation of the minor children of theparties

108050 Nonliability of wifes propertyfor husbandsobligations The property andpecuniary rights of every married woman atthe time of her marriage or afterwardsacquired including real or personal propertyacquired by her own labor during covertureshall not be subject to the debts or contractsof her husband

108060 Noninterest of one spouse inproperty of other When property is ownedby either husband or wife the other has nointerest therein which can be the subject ofcontract between them or such interest aswill make the same liable for the contractsor liabilities of either the husband or wifewho is not the owner of the property exceptas provided in ORS 108040

108070 Rights of abandoned wife adjudication of abandonment When any married man residing in this state abandons hiswife without making suitable provision forher support and absents himself from thisstate for a period of one year the countycourt of the county in which such wife resides may upon her petition setting up thefacts of such abandonment verified by herown oath summarily proceed to hear thepetition and adjudge the fact as to suchabandonment which adjudication shall beconclusive as to such fact as to third persons If such abandonment is adjudged thereupon such married woman during the absence of her husband may in all respectscontract in relation to sell convey and dealwith her separate property real and personal in the same manner as if she were afeme sole

108080 Civil remedies between spouses

in respect of separate property Shouldeither the husband or wife obtain possessionor control of property belonging to the othereither before or after marriage the ownerof the property may maintain an actiontherefor or for any right growing out of thesame in the same manner and to the sameextent as if they were unmarried

108090 Conveyances transfers andHens between spouses creation and dissolution of estates by entireties validation ofprior dissolutions 1 A conveyance transfer or lien executed by either husband orwife to or in favor of the other is valid tothe same extent as between other persons

2 When a husband or wife conveys tothe other an undivided onehalf of any realproperty and retains a like undivided half

831

SUPERSEDED


and in such conveyance there are used wordsindicating an intention to create an estate inentirety said husband and wife hold the realproperty described in the conveyance by theentirety

3 A conveyance from husband or wifeto the other of his or her interest in anestate held by them by entirety is valid anddissolves the estate by entirety All deedsheretofore executed by husband or wife tothe other for the purpose of dissolving theestate by entirety are valid

108100 Husband and wife as attorneyIn fact for each other One spouse may constitute the other his or her attorney in factto control sell and convey mortgage or bardower or curtesy for their mutual benefitand may revoke the same to the same extentand in the same manner as other persons

108110 Petition for support of wife andchildren Any married woman may apply tothe circuit court of the county in which sheresides or in which her husband may befound for an order upon her husband to provide for her support or for the support of herminor children or both and if the woman ispregnant her unborn child or both if he isthe natural father of such children or unborn

child or if he be the adoptive father of suchchildren Such woman may apply for theorder by filing in such county a petition setting forth the facts and circumstances uponwhich she relies for such order If satisfied

that a just cause exists the court shall directthat a citation issue to the husband requiring him to appear at a time set by the courtto show cause why an order of supportshould not be entered in the matter If it appears to the satisfaction of the court thatsuch woman is without funds to employcounsel and is otherwise unable to obtain

counsel the court may make an order directing the district attorney to prepare such petition and citationAmended by 1963 c497 1

108120 Order on hearing petition compelling attendance of witnesses decree ororder 1 After the hearing of the petitionfor an order of support the court shall makean order granting or denying it and fixingif allowed the terms and amount of thesupport

2 The court has the same power tocompel the attendance of witnesses or theproduction of testimony as in actions and

suits to make such decree or orders as areequitable in view of the circumstances ofboth parties and to punish violations thereofas other contempts are punished

108130 Fees At the time of filing thepetition for an order of support the petitioner shall pay to the clerk of the court a feeof 250 which shall cover all charges incident to the filing of papers necessary to acomplete determination of the matter andno part of which shall be applied toward thelibrary fund of the county The court mayupon satisfactory showing that the petitioner is without funds to pay the filing feeorder that the petition and other papers befiled without payment of the fee

108140 Prenuptial property agreements A man and woman who are partiesto an intended marriage may enter into aprenuptial agreement in writing concerningtheir respective personal property holdingsand the final disposition thereof upon suchterms and conditions as may be mutuallydetermined If such intended marriage isconsummated such prenuptial agreementshall be binding upon the parties theretotheir heirs legal representatives and assignsThis section shall not invalidate prenuptialagreements entered into prior to August 21951


COMMUNITY PROPERTY MATTERS

108510 Revocation of election to come

under terms of Community Property Law of1943 1 Notwithstanding any repeal ofchapter 440 Oregon Laws 1943 known asthe Oregon Community Property Law of1943 any husband and wife who elected tocome under the terms thereof may revokesuch election upon filing in the office ofthe Secretary of State a notice of their desire to revoke such election in the followingform

REVOCATION OF ELECTION TO COMEUNDER THE OREGON COMMUNITY

PROPERTY LAW CHAPTER 440OREGON LAWS 1943

KNOW ALL MEN BY THESE PRESENTS That we and herebystate and represent that we are husband andwife that we reside in County Oregon and our postoffice address is NoStreet City of that we do hereby revoke our election filed in the office of the

lu

832

SUPERSEDED

HUSBAND AND WOE RELATIONSHIP PROPERTY RIGHTS 108550

Secretary of State of the State of Oregonon the day of 19 to availourselves of the provisions of chapter 440Oregon Laws 1943 being the Oregon Community Property Law

IN WITNESS WHEREOF we have hereunto set our hands and seals this dayof 19

STATE OF OREGON

County ofss

BE IT REMEMBERED that on this

day of 19 before me the undersigned a notary public in and for said countyand state personally appeared the withinnamed and his wife whoare known to me to be the identical personsdescribed in and who executed the withininstrument and acknowledged to me thatthey executed the same

Notary Public for OregonMy commission expires

Acknowledgments may be taken by anyother officer authorized to take acknowledgments

2 Such an instrument together with afee of 15 shall be presented to the Secretary of State who thereupon shall file theinstrument properly index it in a book keptfor that purpose and transmit to the recording officer of each county in the state thecertificate of the Secretary of State settingforth the nature of such instrument thenames of the parties thereto the date thereof and the date of the filing thereof in theoffice of the Secretary of State Upon receiptof such certificate the recording officershall file it and properly index it in a bookkept for that purpose

3 Public notice of such revocationexists upon compliance with subsection 2of this section

restoration of titles to the status they occupied prior to the filing of the certificate ofelection

108515 Disposition of fees 1 Allmoneys received by the Secretary of Stateunder ORS 108510 shall be paid into theState Treasury to the credit of the GeneralFund

2 Any funds remaining in the Community Property Revocations Account arehereby transferred to the credit of the General FundAmended by 1959 e85 11

108520 Effect of Act repealing Community Property Law of 1947 The provisionsof ORS 108530 to 108550 do not impair oraffect any right acquired prior to April 111949 but the same may be enjoyed as fullyand to the same extent as if ORS 108520

to 108550 had not been passed under andaccording to the law in force at the timesuch right was acquired except as providedin ORS 108530 and 108540

108530 Removal of community property status by agreement Community property acquired during coverture and betweenJuly 5 1947 and April 11 1949 may beconverted into property held as tenants incommon or by entirety or as the separateproperty of either spouse by an agreementin writing evidencing such intent signed byboth husband and wife If such agreementaffects title to real property it shall describe the property affected thereby shallbe executed and acknowledged in the samemanner as deeds and shall be recorded in thedeed records of each county in which anysuch real property is located

108540 Removal of community property status by death of either spouse Uponthe death of either spouse after April 111951 all real or personal property which

4 The filing of such revocation operates to restore the title to any communityproperty of persons making the revocationto the status of the property which existedon the date on which such persons filed acertificate of election under the terms of theOregon Community Property Law of 1943Such revocation in nowise limits the right ofsuch persons to execute and record such conveyances assignments and transfers ofproperty or title thereto as may operate toeffect and make a matter of record the

would have been the separate property ofsuch spouse but for the enactment of chapter 525 Oregon Laws 1947 shall be subjectto disposition by will and to descent anddistribution as the separate property of suchdecedent as though said chapter 525 hadnot been passed

108550 Reliance on spouses right todeal with property in his name Notwithstanding any provisions of chapter 525Oregon Laws 1947 or any provision of ORS

X33

SUPERSEDED


otherwise deal with property standing in hisor her name in such manner that by lawbut for the provisions of said statutes he orshe would be entitled so to deal therewith

108520 to 108550 any other person mayrely and shall be fully protected in so doingupon the right of the husband or the wifeto receive manage control dispose of or


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do herebycompared each section printed in this chapter with the original section inthat the sections in this chapter are correct copies of the enrolled sectionsof the changes in form permitted by ORS 173160 and other changes specificallyDone at Salem Oregonon December 1 1963

certify that I havethe enrolled bill and

with the exceptionauthorized by law

Sam R HaleyLegislative Counsel

is

J

834

SUPERSEDED

Chapter 109


f

Parent and Child Relationship Filiation Proceedings AdoptionAge of Majority

PARENT AND CEMm RELATIONSHIP109010 Duty of support109020 When childs maintenance and education

Petition for leave to adopt and for change

may be defrayed out of income of own

of name

property109030 Equality in rights and responsibilities of

Consent where custody of child has been

parents109041 Relationship between adopted child and his

Consent by State Public Welfare Commis

natural and adoptive parents109050 Relation of adopted child to adopting par

of this state

ents

109060 Legal status and legal relationships where

Oregon

parents not married109070 Establishing paternity109080 Rights of mother H not married to father of

Consent where parent has deserted or neg

child or where paternity of child not es

lected child

tablished

109090 Interpretation of ORS 109060 to 109090

other

and 111231

109100 Childs petition for support by parent dis

consent

trict attorney as counsel for childFILIATION PROCEEDINGS

109110 Initiation of proceedings109120 Proceedings on return of warrant re

moval of action

109130 Payment or security in satisfaction of thewrong bond to secure countys costsand expenses discharge of accused

109140 Failure to comply with settlement provisions new complaint after discharge forwant of evidence

109150 Conduct of trial judgment appeal corroborative evidence

109160 Bond for performance of judgment discharge thereon commitment on failureto give bond

109170 Discharge from imprisonment recommitment

109180 Execution109190 Failure of the mother to prosecute109200 Proceedings at instance of public officer109210 Execution of warrant in any part of state

attendance and testimony of the female109220 Power of judge to compromise with the

father and discharge him109230 Legality of contract between mother and

father of child born out of wedlock

UN FORM ACT ON BLOOD TESTS TODETERMINE PATERNITY

109250 Short title

109252 Authority for blood test effect of refusalto submit to test

109254 Selection of experts to make tests examination of experts

109256 Compensation of experts109258 Effect of test results109260 Applicability to criminal actions109262 Uniformity of interpretation

835

ADOPTION

109305 Interpretation of adoption laws109310 Petition for leave to adopt and for change

of name

109312 Consent to adoption109314 Consent where custody of child has been

awarded in divorce proceedings109316 Consent by State Public Welfare Commis

sion or an approved childcaring agencyof this state

109318 Consent by organization located outsideOregon

109322 Consent where parent mentally ill mentallydeficient or imprisoned

109324 Consent where parent has deserted or neglected child

109326 Consent where parents not married to eachother

109328 Child 14 years of age or older must alsoconsent

109329 Consent where person to be adopted hasreached age of majority

109330 Notice to nonconsenting parent noticewhere child has no parent guardian ornext of kin

109345 Transfer of contested adoption proceedingfrom county court to circuit court

109350 Decree of adoption109360 Change of adopted childsname109370 Appeal from decree on a petition for adop

tion

109381 Effect of decree of adoption109385 Certain adoptions in foreign nations recog

nized evidence109390 Authority of State Public Welfare Commis

sion or childcaring agency in adoptionproceedings

109400 Adoption report form

AGE OF MAJORITY

109510 Age of majority109520 Majority of married persons

835

SUPERSEDED

CH 109 CROSS REF RENCES

CROSS REFERENCES

Action for injury or death of child 30010Action for seduction of daughter 30710Adopted child inheritance by and from 111210

111212

Adoption criminal aspects of 167645Adoption record with State Board of Health

432410 to 432420

AnnuityPurchase by minor 736330Receipt of proceeds by minor 736335

Child welfare Ch 418Cost of care of person at state institution relatives

liability 179630Deposits in name of minor 716740Enforcement of duty to support dependents Ch 110Gifts to minors 126805 to 126880Guardians parents preferred for appointment as

126166

Juvenile court transfer of certain proceedings involving children to 419478

Legitimation of issue of certain imperfect marriages106190 106210

Marriages validated 107150Obsceng matter sale to minors penalty 167151Presumption of legitimacy 4135064136031Referral of child to out patient clinic of state hospital

426224

Validation of adoption proceedings between January1 1956 and August 20 1957 otherwise defectivebecause jurisdiction over adoption transferredfrom court 1957c403 9

Workmans compensation law coverage of minors656132

109010Accounting for support payments 107420Child committed to state training school support

by parent 419513Criminal nonsupport 131360 167605Decree of divorce or annulment in respect of sup

port of children 107100Fathers duty to support minor or adopted chil

dren 108110Juvenile Compact Administrator recovery of ex

penses 417060Juvenile court

Jurisdiction based on failure of parents to support child 419476

Obligation to support child within jurisdiction of419519

Parents liability for family expenses and educationof children 108040

Welfare Recovery Division powers of with respectto enforcement of support 180310 to 180370

109020

Income of property in trust for infant 128060109030

Liability of parents for tort to property by child30770

109060

Descent and distribution where parents not married111231

109070

Birth certificate of child legitimized by subsequentintermarriage of parents 432425

Child born in lawful wedlock is legitimate 4136031Presumption that issue of wife cohabiting with her

husband who is not impotent is legitimate413506

109080

Consent in adoption matters where parents not married 109326

Juvenile court proceedings 419472 to 419616109120

Deposits in lieu of bond or bail Ch 22109140


Enforcement of support order or decree 23775 to23805

109160


Witness fees in criminal proceedings time andmanner of claiming 44450

109310Adoption report form 109400Effect on adoption proceeding of order by juvenile

court terminating parental rights 419529Fee original appearance 21280Probate jurisdiction31305040 46092Records in adoption cases 7211Validation of adoption proceedings in certain county

courts for period January 1 1956August 20 19571957 c403 9

109312Consent to adoption of child committed to child

caring agency which is guardian of child418275 and 418270

109324

Termination of parental rights by juvenile court ongrounds of abandonment 419523

109326Adoption jurisdiction 109310Juvenile courts 3150 3160 3330 5020 46092Rights of father if not married to childs mother

109060 109080Rights of mother if not married to father of child

109080

109330

Termination of parental rights by juvenile court ongrounds of unfitness of parents 419523

109350Fee original appearance 21280Sealing and inspection of adoption records 7211

109360

Certificate supplemental to adopted persons birthcertificate 432415

109390Commitments of children to State Public Welfare

Commission 418320Consent to adoption and guardianship of children

by commission 418285109400

Recording adoptions 432415109510

Acknowledgment by married women 93415Adoption proceedings majority of unmarried mother

109326

Negotiation of commercial paper by infant 732070109520

Indorsement by infant 732070Will execution of 114020

836

C

SUPERSEDED

PARENT AND CHILD FILIATION ADOPTION MAJORITY 109080

PARENT AND CHILD RELATIONSHIP

109010 Duty of support Parents arebound to maintain their children who are

poor and unable to work to maintain themselves and children are bound to maintaintheir parents in like circumstances

109020 When childs maintenance and

education may be defrayed out of income ofown property If any minor whose father isliving has property the income of which issufficient for his maintenance and educationin a manner more expensive than the fathercan reasonably afford regard being had tothe situation of the fathers family and toall the circumstances of the case the expenses of the maintenance and education ofsuch minor may be wholly or partially defrayed out of the income of his own property as is judged reasonable by the countycourt The charges therefor may be allowedaccordingly in the settlement of the accountsof his guardian

109030 Equality in rights and responsibilities of parents The rights and responsibilities of the parents in the absence of misconduct are equal and the mother is asfully entitled to the custody and control ofthe children and their earnings as the fatherIn case of the fathers death the mothershall come into as full and complete controlof the children and their estate as the fatherdoes in case of the mothersdeath

109040 Repealed by 1953c650 4

109041 Relationship between adoptedchild and his natural and adoptive parents1 The effect of a decree of adoption heretofore or hereafter granted by a court ofthis state shall be that the relationshiprights and obligations between an adoptedperson and his descendants and

a His adoptive parents their descendants and kindred and

b His natural parents their descendants and kindredshall be the same to all legal intents andpurposes after the entry of such decree asif the adopted person had been born in lawfulwedlock to his adoptive parents and had notbeen born to his natural parents

2 Where a person has been or shall beadopted in this state by his stepparent thissection shall leave unchanged the relationship rights and obligations between suchadopted person and his descendants and his

natural parent who is the spouse of theperson who adopted him and the descendantsand kindred of such natural parent1953 c650 1

109050 Relation of adopted child oadopting parents An adopted child bears thesame relation to his adoptive parents andtheir kindred in every respect pertaining tothe relation of parent and child as he wouldif he were the natural child of such parents

109060 Legal status and legal relationships where parents not married The legalstatus and legal relationships and the rightsand obligations between a person and hisdescendants and between a person and hisparents their descendants and kindred arethe same for all persons whether or not theparents have been married1957 c411 1

109070 Establishing paternity The

paternity of a person may be established asfollows

1 The child of a wife cohabiting withher husband who is not impotent shall beconclusively presumed to be the child of herhusband whether or not the marriage ofthe husband and wife may be void

2 A child born in wedlock there beingno decree of separation from bed or boardshall be presumed to be the child of themothers husband whether or not the marriage of the husband and wife may be voidThis shall be a disputable presumption

3 By the marriage of the parents of achild after his birth

4 By filiation proceedings as providedin ORS 109110 to 109230

5 By paternity being established ordeclared by other provision of law1957 c411 2

1oymu mignts of mother it not marriesto father of child or where paternity of childnot established If a mother has not married

the father of her child or the paternity ofthe child has not been established under ORS

109070 the mother may give all authorizations for the care custody control andwelfare of her child and for the adoption ofher child and she may be given notice ofjuvenile court proceedings relative to herchild The foregoing may be done withoutany act of the father of the child and without any notice or citation to the father thesame as if the father were dead all irrespective of the age of the mother who if she

337

SUPERSEDED


is a minor shall nonetheless be deemed tohave attained her majority for the purposesof this section

1957c411 4 1959c432 64

109090 Interpretation of ORS 109060to 109090 and 111231 1 The provisionsof ORS 109060 to 109090 and 111231 shall

apply to all persons irrespective of whetherthey are born before or after August 201957 ORS 109060 to 109090 and 111231shall not be construed to affect a decree of

distribution entered or any probate proceeding closed prior to August 20 1957

2 ORS 109060 to 109090 and 111231shall be liberally construed with the viewof effectuating their objects notwithstanding the rule of common law that statutes inderogation thereof are to be strictly construed

1957c411 5 6

109100 Childs petition for support byparent district attorney as counsel for child1 Any minor child may in accordancewith ORS 13041 apply to the circuit court inthe county in which he resides or in whichhis natural or adoptive father or mother maybe found for an order upon such childsfather or mother or both to provide for thechilds support The minor child may applyfor the order by filing in such county a petition setting forth the facts and circumstancesupon which he relies for such order If satisfied that a just cause exists the court shalldirect that a citation issue to the father or

mother requiring him or her to appear at atime set by the court to show cause why anorder of support should not be entered in thematter If it appears to the satisfaction ofthe court that such child is without funds to

employ counsel the court may make anorder directing the district attorney to prepare such petition and citation

2 The provisions of ORS 108120 and108130 shall apply to proceedings under subsection 1 of this section1963 c497 2

FILIATION PROCEEDINGS

109110 Initiation of proceedings Oncomplaint being made to any justice of thepeace by any unmarried female who is delivered of a child born out of wedlock or who

thereupon issue his warrant against the person accused directed to the sheriff or anyconstable in his county commanding himforthwith to bring the accused before thejustice to answer to the complaintAmended by 1961c338 1

109120 Proceedings on return of warrant removal of action 1 On the returnof the warrant mentioned in ORS 109110 ifthe accused is in custody or appears thejustice shall examine the complainant underoath respecting the cause of complaint andthe accused may cross examine her and putany question necessary for his defensesubject to the rules of evidence provided bythe procedural statutes Witnesses may beexamined on behalf of either party All testimony and proceedings shall be reduced towriting

2 The proceedings for cause shown maybe adjourned from time to time not exceeding five days at any one time On such adjournment the accused may be recognizedfor his appearance for such examination ina sum not less than 100 nor more than1000 with sureties to the satisfaction ofthe justice In default thereof he shall becommitted pending such examination to thecounty jail

3 The accused is entitled to a removalof such action as in criminal examination before justices of the peace

109130 Payment or security in satisfaction of the wrong bond to secure countys costs and expenses discharge of accusedIf the accused pays or secures to be paid tothe female complaining such sum of moneyor other property as she agrees to receive infull satisfaction and as is approved by thejudge of the juvenile court of the countywherein such action is pending of whichagreement and approval the justice shallmake a memorandum on his docket givesbond with sufficient sureties to be approvedby the justice to the county to secure andindemnify the county from all charges forthe maintenance of the child and pays allexpenses incurred by the county for thelyingin and support of the mother attendance upon her during her confinement andthe costs of prosecution the justice shalldischarge the accused

is pregnant with a child which if born ahvemay be born out of wedlock accusing any 109140 Failure to comply with settleperson of being the father of the child the ment provisions new complaint after disjustice shall take the complaint in writing charge for want of evidence In case theunder the oath of the female and shall accused does not comply with the provisions

838

SUPERSEDED

11


of ORS 109130 and there is probable causeto believe the accused guilty the justiceshall bind such person in a recognizancewith one or more sureties to be approved bythe justice in a sum of not less than 200nor more than 2000 to appear before thecircuit court for the proper county to answerto the complaint and to abide by the order ofsaid court thereon On the accusedsneglector refusal to find such security the justiceshall cause him to be committed to the

county jail there to be held to answer tothe complaint The justice shall thereuponcertify and return the examination and alltestimony taken before him with all processand papers in the case to the clerk of thecircuit court In case any examination hasbeen had as provided by law and the person complained of has been discharged forwant of sufficient evidence to raise a probability of his guilt and the district attorneyafterwards finds admissible evidence suf

ficient in his judgment to convict the person discharged he may notwithstanding thedischarge cause another complaint to bemade before any officer authorized by lawto make such examination and thereuponanother arrest and examination shall be hadAmended by 1959c638 10

109150 Conduct of trial judgment appeal corroborative evidence 1 The judgemay exclude the general public from the trialin filiation proceedings and shall do so atthe request of either party The issue at sucha trial is whether the accused is guilty ornot If the mother of the child is dead herexamination taken before the justice may beread in evidence and in all cases it shall beread when demanded by the accused

2 If the accused is found guilty or admits the truth of the accusation he shall beadjudged to be the father of the child andshall be chargeable with its future maintenance in such sum and in such manner asthe court directs with all expenses incurredby the county or by the mother of the childfor the lyingin and attendance of the mother during her confinement with the care andsupport of the child since its birth and withthe costs of the prosecution All such matters shall be ascertained and fixed by thecourt and shall be inserted in the judgmentprovided however that the judgment of thecourt providing for the maintenance ofchild by the father shall be in a yearlyof not more than 900 for each yearceeding until the child reaches the ag

18 years The court in determining theamount to be paid shall give due regard tothe financial resources of the parties

3 The defendant has the right of trialby jury and of appeal as provided in civilactions

4 No conviction shall behad upon theuncorroborated testimony of the complaining femaleAmended by 1961c338 2

109160 Bond for performance of judgment discharge thereon commitment onfailure to give bond If the person adjudgedunder ORS 109150 to be the father of the

child gives a bond to the proper person insuch sum and with such sureties as the court

approves conditioned upon the performanceof the judgment and the payment of allsums ordered paid as therein directed andpays the costs of prosecution and any sumsadjudged then to be paid he shall be discharged otherwise he shall be committed tothe county jail until he complies with andperforms the judgment or is otherwise discharged according to law In counties maintaining a house of correction or workhousethe commitment may be to either of theserather than to the county jail

109170 Discharge from imprisonmentrecommitment Any person imprisoned for90 days pursuant to ORS 109160 may applyfor his discharge from imprisonment to thecourt having jurisdiction of the actionNotice of the application for discharge shallbe given to the complainant if living withinthe state and to the district attorney for thecounty at least 15 days before such application is made Any such person may be recommitted as provided in ORS 109160 within 30 days after such discharge

109180 Execution The court upon motion by the mother of the child or by anyperson interested may from time to timeorder execution to issue against the defendant and his sureties in any bond given asprovided in ORS 109160 to secure the performance of any such judgment or againsta defendant who has been discharged underORS 109170 for such sum as at any timebecomes due on the judgment and remainsunpaid

the 109190 Failure of the mother to prosesum cute When the mother of a child born out ofsue wedlock commences any proceedings authore of ized by ORS 109110 and fails to prosecute

839

SUPERSEDED

109200 DOMESTICRELATIONS

the same the proper officers of the countyor any person interested in the support of thechild may prosecute the proceedings commenced by the mother to final judgmentAmended by 1961c338 3

109200 Proceedings at instance of public officer If any female is delivered of achild born out of wedlock which is or islikely to become a public charge or if thefemale is pregnant with a child likely to beborn out of wedlock and become a publiccharge any public officer duly authorized tomake or cause arrests may if he deems itproper apply to some justice of the peaceof the county in which the female resideswho shall thereupon examine her in respectof the identity of the father of the childwhen and where it was begotten and as tosuch other circumstances as he may deemnecessary The justice shall reduce the examination to writing and shall thereupon issuehis warrant without further or formal complaint to apprehend the putative father andthe same proceeding shall be had thereonand with like effect as is in ORS 109120 to109180 provided in cases of complaint madeby the femaleAmended by 1961c338 4

109210 Execution of warrant in anypart of state attendance and testimonyof the female Any warrant issued underORS 109110 109140 or 109200 may beexecuted in any part of this state and in allcases the county officers and the accusedmay compel the female to attend and testify the same as witnesses in other cases

109220 Power of judge to compromisewith the father and discharge him Thejudge of the juvenile court of the county inwhich the female referred to in ORS 109110resides may make such compromise or arrangement with the putative father of anychild born out of wedlock relative to the support of the child as the judge deems equitable and just and thereupon may dischargethe putative father from all liability for thesupport of the childAmended by 1961 c338 5

109230 Legality of contract betweenmother and father of child born out of wedlock Any contract between the mother andfather of a child born out of wedlock islegal contract and the admission by thefather of his fatherhood of the child is sufficient consideration to support the contractAmended by 1961c338 6


UNIFORM ACT ON BLOOD TESTS TOD EIMUNE PATERNITY

109250 Short title ORS 109250 to109262 may be cited as the Uniform Act onBlood Tests to Determine Paternity1953 c628 7

109252 Authority for blood test effectof refusal to submit to test In a civil actionunder ORS 109110 to 109230 in which paternity is a relevant fact the court upon itsown initiative or upon suggestion made by oron behalf of any person whose blood is involved may or upon motion of any party tothe action made at a time so as not to delaythe proceedings unduly shall order themother child and alleged father to submitto blood tests If any party refuses to submitto such tests the court may resolve the question of paternity against such party or enforce its order if the rights of others andthe interests of justice so require1953 c628 1

109254 Selection of experts to maketests examination of experts The tests shallbe made by experts qualified as examiners ofblood types who shall be appointed by thecourt The experts shall be called by thecourt as witnesses to testify to their findingsand shall be subject to cross examination bythe parties Any party or person at whosesuggestion the tests have been ordered maydemand that other experts qualified asexaminers of blood types perform independent tests under order of court the resultsof which may be offered in evidence Thenumber and qualifications of such expertsshall be determined by the court1953 c628 2

109256 Compensation of experts 1The compensation of each expert witness appointed by the court shall be fixed at areasonable amount It shall be paid as thecourt shall order The court may order thatit be paid by the parties in such proportionsand at such times as it shall prescribe orthat the proportion of any party be paid bythe county in which the proceedings are hadand that after payment by the parties orsuch county or both all or part or none ofit be taxed as costs in the action

a 2 The fee of an expert witness calledby a party but not appointed by the courtshall be paid by the party calling him butshall not be taxed as costs in the action

8401953 c628 3

SUPERSEDED

PARENT AND CHILD FIATION ADOPTION MAJORITY 109312

r

is

109258 Effect of test results If thecourt finds that the conclusions of all theexperts as disclosed by the evidence basedupon the tests are that the alleged father isnot the father of the child the question ofpaternity shall be resolved accordingly Ifthe experts disagree in their findings or conclusions the question shall be submittedupon all the evidence If the experts concludethat the blood tests show the possibility ofthe alleged fathers paternity admission ofthis evidence is within the discretion of thecourt depending upon the infrequency of theblood type1953 c628 4

109260 Applicability to criminal actionsORS 109250 to 109262 shall apply to criminal cases subject to the following limitationsand provisions

1 An order for the tests shall be madeonly upon application of a party or on thecourts initiative

2 The compensation of the expertsshall be paid by the county in which theproceedings are had under order of court

3 The court may direct a verdict ofacquittal upon the conclusions of all the experts under the provisions of ORS 109258otherwise the case shall be submitted fordetermination upon all evidence1953 c628 51

109262 Uniformity of interpretationThe Uniform Act on Blood Tests to Determine Paternity shall be so interpreted andconstrued as to effectuate its general purpose to make uniform the law of those stateswhich enact it1953 c628 6


ADOPTION

109305 Interpretation of adoption lawsThe rule that statutes in derogation of common law are to be strictly construed doesnot apply to the adoption laws of this state1957 c710 15

109310 Petition for leave to adopt andfor change of name 1 Any person maypetition any court having probate jurisdiction for leave to adopt another and if desired for a change of the others name butthe prayer of the petition by a married person shall not be granted unless the petitioners spouse joins therein

2 The petition may be filed in th

county where the petitioner resides if he isa resident of this state in the county wherethe parent or guardian of the other residesif the other is a child or if the petition isfor the adoption of a child committed or surrendered pursuant to ORS 418270 to any approved childcaring agency or to the StatePublic Welfare Commission in any countywhere such agency or commission has an office Filing of the petition in a county otherthan specified in this subsection does notconstitute a jurisdictional defect

3 If such petition is for the adoption ofa minor child a copy thereof together with astatement containing the full names and permanent address of the petitioners and thefull names and permanent addresses of allpersons whose consent to the adoption is required under ORS 109312 if such names andaddresses are known or may be readily ascertained by the petitioners shall be servedon the administrator of the State Public Welfare Commission by registered mail or personally The court shall not rule on the petition until the expiration of 45 days from thefiling of the petition unless the running ofsuch time is waived by the commission

4 Within the time and in the mannerprovided in this section the commission mayfile for the consideration of the judge beforewhom the petition for adoption is pendingsuch information regarding the status of thechild and evidence as to the suitability of theproposed foster home as the commission desires to submit Upon written request of theattorney for the petitioner the State PublicWelfare Commission shall furnish to him acopy of such information as is filed with thecourtAmended by 1953 c368 2 1957 c403 5 1959c4303 1963 c188 11

109312 Consent to adoption Except asprovided in ORS 109314 to 109329 consentin writing to the adoption under ORS 109310of a child shall be given by

1 The parents of the child or the survivor of them

2 The guardian of the person of thechild if the child has no living parent

3 The next of kin in this state if thechild has no living parent and no guardianof the person

4 Some suitable person appointed bythe court to act in the proceeding as nextfriend of the child to give or withhold con

e sent if the child has no living parent and841

SUPERSEDED


no guardian or next of kin qualified to consent

1957c710 2 ORS 109312 to 109329 enacted in lieuof ORS 109320

109314 Consent where custody of childhas been awarded in divorce proceedingsIf the legal custody of the child has beenawarded in divorce proceedings the writtenconsent of the person to whom custody ofthe child has been awarded may be heldsufficient by the court but unless theparent not having custody consents to theadoption a citation to show cause why theproposed adoption shall not be made shallbe served in accordance with ORS 109330upon the parent not having the custody andthe objections of such parent shall be heardif appearance is made This section does notapply where consent is given in loco parentisunder ORS 109316 or 1093181957c710 3 ORS 109312 to 109329 enacted in lieuof ORS 10920

109316 Consent by State Public Welfare Commission or an approved childcaringagency of this state 1 The State PublicWelfare Commission or an approved childcaring agency of this state acting in locoparentis may consent to the adoption of achild who has been

a Surrendered to it for the purpose ofadoption under ORS 418270 if complianceis had with the provisions of that sectionor

b Permanently committed to it byorder of a court of competent jurisdictionor

c Surrendered to it for the purpose ofadoption under ORS 418270 by one parentif compliance is had with the provisions ofthat section and permanently committed toit by a court of competent jurisdiction having jurisdiction of the other parent

2 Where consent is given under thissection no other consent is required

3 Where consent is given under thissection there shall be filed in the adoptionproceeding

a A certified copy of an order of acourt of competent jurisdiction formally andpermanently assigning the guardianship ofthe child to the commission or the childcaring agency or a copy of the surrenderof the child from its parent or parents orguardian or both as the case may be and

b Written formal consent by the commission or the childcaring agency as thecase may be to the proposed adoption show

842

ing that sufficient and satisfactory investigation of the adopting parties has been madeand recommending that the adoption begranted The consent of the commission orthe childcaring agency to the proposedadoption may be given by one of its officersexecutives or employes who has been authorized or designated by it for that purpose1957c710 4 ORS 109312 to 109329 enacted in lieuof ORS 109320

109318 Consent by organization locatedoutside Oregon 1 An agency or otherorganization public or private located entirely outside of this state or an authorizedofficer or executive thereof acting in locoparentis may consent to the adoption of achild under its or his custody control orguardianship of the person if such agencyor organization or officer or executive thereof is licensed or otherwise has authority inthe jurisdiction in which such agency orother organization is located to consent toadoptions in loco parentis When consent isgiven under this section no other consentis required The license or other authority toconsent to adoption in loco parentis shall beconclusively presumed upon the filing withthe court of a duly certified statement froman appropriate governmental agency of suchother state that such agency or organizationor officer or executive is licensed or otherwise has authority in such state to consentto adoptions in loco parentis

2 Where consent is given under thissection there shall be filed in the adoptionproceeding

a A certified copy of the court orderor the written authorization from the parentparents or other person or both a courtorder and such written authorization as thecase may be that enables consent to begiven in loco parentis under the law of suchother jurisdiction and

b Written formal consent by the

agency or other organization or the officeror executive thereof to the proposed adoption showing that sufficient and satisfactoryinvestigation of the adopting parties hasbeen made and recommending that the adoption be granted1957c710 5 ORS 109312 to 109329 enacted in lieuof ORS 10920

109320 Repealed by 1957c710 1 ORS 109312to 109329 enacted in lieu of ORS 109310

109322 Consent where parent mentallyill mentally deficient or imprisoned If

either parent has been adjudged mentally ill

1u

J

SUPERSEDED

PARENT AND CHILDFIIIATION ADOPTION MAJORITY 109328

or mentally deficient and remains so at thetime of the adoption proceedings or is imprisoned in a state or federal prison undera sentence for a term of not less than threeyears there shall be served upon such parentif he has not consented in writing to theadoption a citation in accordance with ORS109330 to show cause why the adoption ofthe child should not be decreed In the caseof a person adjudged mentally ill or mentallydeficient the citation shall also be servedupon the guardian of his person or if he hasno guardian of the person the court shallappoint a guardian ad litem to appear forthe person in the adoption proceedings Uponhearing being had if the court finds thatthe welfare of the child will be best promotedthrough the adoption of the child the consent of the mentally ill mentally deficientor imprisoned parent is not required andthe court shall have authority to proceedregardless of the objection of such parentThis section does not apply where consentis given in loco parentis under ORS 109316or 109318

1957c710 6 ORS 109312 to 109329 enacted in lieuof ORS 109320

109324 Consent where parent has deserted or neglected child If either parentis believed to have wilfully deserted or neglected without just and sufficient cause toprovide proper care and maintenance forthe child for one year next preceding thefiling of the petition for adoption and suchparent does not consent in writing to theadoption there shall be served upon suchparent a citation in accordance with ORS109330 to show cause why the adoption ofthe child should not be decreed Upon hearing being had if the court finds that suchparent has wilfully deserted or neglectedwithout just and sufficient cause to provideproper care and maintenance for the childfor one year next preceding the filing of thepetition for adoption the consent of suchparent at the discretion of the court is notrequired and if the court determines thatsuch consent is not required the court shallhave authority to proceed regardless of theobjection of such parent In determiningwhether the parent has wilfully deserted orneglected without just and sufficient causeto provide proper care and maintenance forthe child the court may disregard incidentalvisitations communications and contributions This section does not apply where con

sent is given in loco parentis under ORS109316 or 1093181957c710 7 ORS 109312 to 109329 enacted in lieuof ORS 109320

109326 Consent where parents not married to each other 1 The consent of themother of the child is sufficient and for thepurpose of giving such consent the motherof the child shall be deemed to have arrivedat the age of majority and for all purposesrelating to the adoption of the child thefather of the child shall be disregarded justas if he were dead when it is shown in thecourt in which the adoption proceedings arepending that

a The mother of the child was unmarried at the time of the conception of thechild to be adopted and remained unmarriedat the time of the birth of the child and wasnot married to the father of the child at thetime of her consent to the adoption or surrender of the child for the purpose of adoption under ORS 1 or

b When a mo her of the child was

married at the time of the conception orbirth of the child and it has been judiciallydetermined that her husband at such time ortimes was not the father of the child Suchdetermination of nonpaternity may be madeby any court having adoption or juvenilecourt jurisdiction The testimony or affidavitof the mother or such husband shall constitute competent evidence before the courtmaking such determination Before makingsuch determination of nonpaternity citationto show cause why such husbandsparentalrights should not be terminated shall beserved on him personally if found in thestate and if not found in the state then acopy of the citation shall be published orserved in the manner provided by ORS116750 for the service of citation by publication or for personal service outside the state

2 If the mother described in subsection1 of this section is dead or unknown consent shall be obtained in the same manner

as if such child had no living parent1957c710 8 ORS 109312 to 109329 enacted in lieuof ORS 109320 1959c609 11

109328 Child 14 years of age or oldermust also consent If the child is 14 yearsof age or older the adoption shall not bemade without his consent The consent re

quired by this section is in addition to andnot in lieu of the consent otherwise requiredby law1957c710 9 ORS 109312 to 109329 enacted in lieuof ORS 109320

843

SUPERSEDED


109329 Consent where person to beadopted has reached age of majority If theperson to be adopted is legally married or is21 years of age or older his written consentmay be held by the court to be sufficientwithout the necessity for the consent of anyother person to the adoption1957 c710 10 ORS 109312 to 109329 enacted inlieu of ORS 109320

109330 Notice to nonconsenting parent notice where child has no parent guardian or next of kin 1 In the cases providedfor in ORS 109314 109322 and 109324where a parent does not consent to the adoption of his child the court shall order a copyof the petition therefor and citation thereonto be served on him personally if found inthe state and if not found in the state thena copy of the citation to be published orserved in the manner provided by ORS116750 for the service of citation by publication or for personal service outside thestate and a copy ofthecitation to be deposited forthwith in the postoffice directedto such parent at his place of residenceunless it appears that such residence isneither known to the petitioner nor canwith reasonable diligence be ascertained byhim

2 If the child has no living parent andno guardian or next of kin in this state qualified to appear in its behalf the court mayorder such notice if any to be given as itdeems necessary or properAmended by 1957c710 11

109340 Repealed by 1957 c412 2 ORS 7211enacted in lieu of ORS 109340

109345 Transfer of contested adoptionproceeding from county court to circuitcourt Any contested adoption proceeding inthe county court at any time prior to thecommencement of a trial or hearing may betransferred by the county court to the circuit court for the county in which the proceeding is pending Such transfer may bemade on the county courts own motion orupon motion made and filed by any partyto the proceeding Such transfer shall bemade upon motion made and filed by anyparty To effect such transfer the countycourt shall enter an order transferring theproceeding to the circuit court and the county courts finding recited in said order thatthe proceeding is contested shall be a conclusive determination that the proceedingis an appropriate one to be so transferredunder the provisions of this section The

844

circuit court shall thereupon acquire exclusive jurisdiction of the proceeding to thesame extent and with like effect as thoughthe proceeding were in the court on originaljurisdiction The circuit court shall proceedto hear and determine the matter and makea final decree in the proceeding and to thatend shall have all the jurisdiction powersand intendments of the law possessed by acourt of original adoption jurisdiction Uponany such transfer all the records files andproceedings of the county court in the proceeding shall become likewise the recordsfiles and proceedings of the circuit courtwithout payment of any further filing feeAn appeal shall lie to the Supreme Courtfrom the decree or other appealable determinative order of the circuit court in suchproceeding1961 c99 1

109350 Decree of adoption If upon apetition for adoption duly presented and consented to the court is satisfied as to theidentity and relations of the persons thatthe petitioner is of sufficient ability to bringup the child and furnish suitable nurture andeducation having reference to the degreeand condition of the parents and that it isfit and proper that such adoption be effected a decree shall be made setting forth thefacts and ordering that from the date of thedecree the child to all legal intents and purposes is the child of the petitionerAmended by 1959c430 4

109360 Change of a d o p t e d childsname If in a petition for the adoption of achild a change of the childs name is requested the court upon decreeing the adoption may also decree the change of nameand grant a certificate thereof without thenotices required by ORS 33420

109370 Appeal from decree on a petition for adoption Where a court other thanthe circuit court has probate jurisdictionany party to an adoption proceeding mayappeal to the circuit court from the decreeof the probate court on a petition for theadoption of another in like manner as appeals may be taken from the other decreesof that court If the appeal is by a childmade the subject of such petition appearingby a next friend no bond shall be requiredor costs awarded against such child or nextfriend

Amended by 1957c403 7 1961 c98 1109380 Repealed by 1959c609 5

1u

SUPERSEDED


109381 Effect of decree of adoption1 A decree of a court of this state granting an adoption and the proceedings in suchadoption matter shall in all respects be entitled to the same presumptions and be asconclusive as if rendered by a court of record acting in all respects as a court of general jurisdiction and not by a court of specialor inferior jurisdiction and jurisdiction overthe persons and the cause shall be presumedto exist

2 Except for such right of appeal asmay be provided by law decrees of adoptionshall be binding and conclusive upon all parties to the proceeding No party nor anyoneclaiming by through or under a party to anadoption proceeding may for any reasoneither by collateral or direct proceedingsquestion the validity of a decree of adoptionentered by a court of competent jurisdictionof this or any other state

3 After the expiration of one year fromthe entry of a decree of adoption in this statethe validity of the adoption shall be bindingon all persons and it shall be conclusivelypresumed that the childs natural parentsand all other persons who might claim tohave any right to or over the child haveabandoned him and consented to the entry ofsuch decree of adoption and that the childbecame the lawful child of the adoptive parents or parent at the time when the decreeof adoption was rendered all irrespective ofjurisdictional or other defects in the adoption proceeding after the expiration of suchoneyear period no one may question thevalidity of the adoption for any reasoneither through collateral or direct proceedings and all persons shall be bound therebyprovided however the provisions of thissubsection shall not affect such right of appeal from a decree of adoption as may beprovided by law

4 The provisions of this section shallapply to all adoption proceedings institutedin this state after August 5 1959 This section shall also apply after the expiration ofone year from August 5 1959 to all adoptionproceedings instituted in this state beforeAugust 5 1959Subsections 1 2 and 3 enacted as 1959 c609

2 3 4 subsection 4 derived from 1959 c609 61

tive parents at least one of whom is a citizenof the United States shall be recognized asa valid and legal adoption for all purposesin the State of Oregon if the adoption isvalid and legal in the foreign nation whereinthe adoption occurred

2 The certificate of a judge of a courtof general jurisdiction under his seal or theseal of the court in any foreign nation withrespect to the adoption of a national of suchforeign nation by adoptive parents at leastone of whom is a citizen of the United Statesthat all pertinent laws of such foreign nationhave been complied with and the adoptionis in all respects legal and valid shall beprima facie evidence in any court in the Stateof Oregon in any proceeding that such adoption was in fact legal and valid Such certificate shall be prima facie evidence even ifunder the laws of the foreign nation theadoption is an administrative procedure andis not within the jurisdiction of the court orthe judge making the certificate1961 c95 2 3

109390 Authority of State Public Welfare Commission or childcaring agency inadoption proceedings Where the State Public Welfare Commission or an approvedchild caring agency has the right to consentto the adoption of a child the commissionor agency may

1 Where it deems the action necessaryor proper become a party to any proceedingfor the adoption of the child

2 Appear in court where a proceedingfor the adoption of the child is pending

3 Give or withhold consent in locoparentis to the adoption of the child only inaccordance with ORS 1093161957 c710 14

109400 Adoption report form 1When a petition for adoption is filed with acourt the petitioner or his attorney shall filewith the petition an adoption report form onwhich those blanks relating to the personalparticulars of the person to be adopted andof the prospective adoptive parents havebeen filled in The State Registrar shall prescribe the form of the adoption report form

2 Notwithstanding ORS 7211 if thecourt enters a decree of adoption the clerk

109385 Certain adoptions in foreign nations recognized evidence 1 An adoptionin any foreign nation under the laws of suchnation of a person who is at the time of theadoption a national of such nation by adop

E

of the court shall review the personal particulars filled in on the form shall fill in theremaining blanks on the form shall certifythe form and mail it within five days to theState Registrar as the adoption report1959 c430 1

45

SUPERSEDED



AGE OF MAJORITY

109510 Age of majority Except as provided in ORS 109520 in this state any person shall be deemed to have arrived at majority at the age of 21 years and thereaftershall have control of his own actions and

business have all the rights and be subjectto all the liabilities of a citizen of full age

109520 Majority of married personsExcept as provided in ORS 653105 all persons shall be deemed to have arrived at the

age of majority upon their being marriedaccording to lawAmended by 1953c343 2 1957c710 12



u

846

SUPERSEDED

Chapter 110


1963 reprint

Reciprocal Enforcement of Support

GF24FAU PROVISIONS

110005 Short title110006 Uniformity of interpretation110011 Purposes110021 Definitions110031 Remedies additional to other remedies110041 Extent of duties of support of obligors who

are present in this state

CRIMINAL ENFORCEMENT

110051 Extradition of persons owing duty of support

110061 When obligors relieved of extradition

CIIM ENFORCEMENT

110071 What duties of support are applicable110081 Reimbursement of state or political subdi

visions furnishing support110091 Duties of support enforceable by petition

jurisdiction110101 Contents of petition110111 District attorney to represent petitioner110121 Petition for minor110181 Duties of court of this state as initiating

state

110141 Payment of court fees110151 Arrest of respondent110161 Attorney General as State Information

CROSS REFERENCES

Accounting by custodian of children receiving childsupport 107420

Cost of care of person at state institution responsibility 179610 to 179770

District attorney priority to administration of lawsrelating to reciprocal enforcement of support8675

Powers of Welfare Recovery Division with respect toenforcement of support 180310 to 180370

Relatives responsibility for needy person 416020 to416260

110071

Amount of monthly contributions for support 416060Determination of liability of relative for support

416030 416230Duties of support imposed by law

Child within jurisdiction of juvenile court419476 419513 419519

Criminal nonsupport of indigent parent 167635Criminal nonsupport of wife and child 167605

Decree of divorce or annulment provisions forsupport 107100

Enforcement of duty to support of wife andminor child 108110

Expenses of Juvenile Compact Administrator417060

Mentally ill and mentally deficient in state institutions Ch 179

Mutual duties of support between parent andchild 109010


Public officials to supply information to aid in enforcement of parents liability to support childreceiving public assistance 418135

Venue in criminal nonsupport actions 131360110111

Powers of Welfare Recovery Division 180310180330

847

Agency duties110171 Duty of court of this state acting as re

sponding state110181 Duty of responding court when unable to

obtain jurisdiction110201 Order of support110211 Responding state to transmit copies of

support orders to initiating state110221 Additional powers as responding court110226 Duty of district attorney when order of

responding court cannot be enforced110231 Duties of responding court regarding re

ceipt and transmittal of support payments

110241 Duty of initiating court regarding receiptand disbursement of support payments

110251 Testimony of husband and wife110271 Credit of support payments against sup

port payments due under other proceedia

110291 Sevebility

CROSS REFERENCES

Accounting by custodian of children receiving childsupport 107420

Cost of care of person at state institution responsibility 179610 to 179770

District attorney priority to administration of lawsrelating to reciprocal enforcement of support8675

Powers of Welfare Recovery Division with respect toenforcement of support 180310 to 180370

Relatives responsibility for needy person 416020 to416260

110071

Amount of monthly contributions for support 416060Determination of liability of relative for support

416030 416230Duties of support imposed by law

Child within jurisdiction of juvenile court419476 419513 419519

Criminal nonsupport of indigent parent 167635Criminal nonsupport of wife and child 167605

Decree of divorce or annulment provisions forsupport 107100

Enforcement of duty to support of wife andminor child 108110

Expenses of Juvenile Compact Administrator417060

Mentally ill and mentally deficient in state institutions Ch 179

Mutual duties of support between parent andchild 109010


Public officials to supply information to aid in enforcement of parents liability to support childreceiving public assistance 418135

Venue in criminal nonsupport actions 131360110111

Powers of Welfare Recovery Division 180310180330

847

SUPERSEDED


GENERAL PROVISIONS

110005 Short title This chapter maybe cited as the Uniform Reciprocal Enforcement of Support Act1953 c427 27

110006 Uniformity of interpretationThis chapter shall be so interpreted and construed as to effectuate its general purposeto make uniform the law of those states

which enact the Uniform Reciprocal Enforcement of Support Act1953 c427 26

110010 Repealed by 1953c427 29

10 State includes any state territoryor possession of the United States and theDistrict of Columbia in which this or a sub

stantially similar reciprocal law has been orshall be enacted1953 c427 2

110030 Repealed by 1953 c427 29

110031 Remedies additional to other

remedies The remedies herein provided arein addition to and not in substitution for anyother remedies

1953 c427 3110040 Repealed by 1953c427 29

110041 Extent of duties of support ofobligors who are present in this state Dutiesof support arising under the law of this statewhen applicable under ORS 110071 bind theobligor present in this state regardless ofthe presence or residence of the obligee1953 c427 41

110011 Purposes The purposes of thischapter are to improve and extend by reciprocal legislation the enforcement of dutiesof support and to make uniform the lawwith respect thereto1953 c427 1

110020 Repealed by 1953 c427 29

110021 Definitions As used in this

chapter unless the context requires otherwise

1 Court shall mean and include ancourt having jurisdiction to determine theliability of persons for the support of anotherperson in this state and any state havingsubstantially similar reciprocal law

2 Duty of support includes any dutyof support imposed or imposable by law oby any court order decree or judgmentwhether interlocutory or final whether incidental to a proceeding for divorce legal separation separate maintenance or otherwise

3 Initiating state means any state iwhich a proceeding pursuant to this orsubstantially similar reciprocal law is commenced

4 Law includes both common andstatute law

5 Obligee means any person to

whom a duty of support is owed6 Obligor means any person owing

a duty of support7 Petitioner shall mean and include

person or persons for whom support issought in a proceeding instituted pursuantto this chapter either by the person entitledto support or by the political subdivision ofa state as hereinafter provided

8 Respondent shall mean and includeeach person against whom a proceeding isinstituted pursuant to this chapter

9 Responding state means any statein which any proceeding pursuant to thproceeding in the initiating state is or maybe commenced

110050 Repealed by 1953c427 29

CRIlVIINAL ENFORCEMENT

y110051 Extradition of persons owing

duty of support The Governor of this state1 may demand from the Governor of any

a other state the surrender of any personfound in such other state who is charged inthis state with the crime of failing to provide

r for the support of any person in this stateand 2 may surrender on demand by theGovernor of any other state any personfound in this state who is charged in suchother state with the crime of failing to pro

p vide for the support of a person in sucha other state The provisions for extradition of

criminals not inconsistent herewith shall

apply to any such demand although theperson whose surrender is demanded was notin the demanding state at the time of thecommission of the crime and although hehad not fled therefrom Neither the demandthe oath nor any proceedings for extraditionpursuant to this section need state or showthat the person whose surrender is demandedhas fled from justice or at the time of thecommission of the crime was in the demand

ing or other state1953 c427 5

110060 Repealed by 1953c427 29

110061 When obligors relieved of extradition Any obligor contemplated by ORS110051 who submits to the jurisdiction ofthe court of such other state and complies

e with the courts order of support shall berelieved of extradition for desertion or nonsupport entered in the courts of this state

848

SUPERSEDED

RECIPROCAL ENFORCEMENT OF SUPPORT 110161

during the period of such compliance1953 c427 6

CIV1L ENFORCEMENT

110071 What duties of support are applicable Duties of support applicable underthis chapter are those imposed or imposableunder the laws of any state where the obligorwas present during the period for which support is sought The obligor is presumed tohave been present in the responding stateduring the period for which support issought until otherwise shown1953 c427 7

110081 Reimbursement of state or political subdivisions furnishing support Whenever the state or a political subdivision thereof furnishes support to an obligee it has thesame right to invoke the provisions hereof asthe obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support1953 c427 8

110091 Duties of support enforceableby petition jurisdiction All duties of supportare enforceable by petition irrespective ofrelationship between the obligor and obligeeJurisdiction of all proceedings hereundershall be vested in the circuit court of each

county1953 c427 9

110101 Contents of petition The petition shall be verified and shall state thename and so far as known to the petitionerthe address and circumstances of the re

spondent and his dependents for whom support is sought and all other pertinent information The petitioner need not but mayinclude in or attach to the petition any information which may help in locating or identifying the respondent including but withoutlimitation by enumeration a photograph ofthe respondent a description of any distinguishing marks of his person other namesand aliases by which he has been or is knownthe name of his employer his fingerprintsor social security number1953 c427 10

110110 Repealed by 1953c427 29

110111 District attorney to representpetitioner The district attorney upon theorder of the court shall represent the petitioner in any proceeding under this chapter1953 c427 11

110120 Repealed by 1953c427 29

110121 Petition for minor A petitionon behalf of a minor obligee may be brought

by a person having legal custody of theminor without appointment as guardian adlitem

1953 c427 12110130 Repealed by 1953c427 29

110131 Duties of court of this state as

initiating state If the court of this state acting as an initiating state finds that thepetition sets forth facts from which it maybe determined that the respondent owes aduty of support and that a court of theresponding state may obtain jurisdiction ofthe respondent or his property it shall socertify and shall cause three copies of 1the petition 2 its certificate and 3 thischapter to be transmitted to the court in theresponding state If the name and address ofsuch court is unknown and the respondingstate has an information agency comparableto that established in the initiating state itshall cause such copies to be transmitted tothe state information agency or other properofficial of the responding state with a request that it forward them to the propercourt and that the court of the respondingstate acknowledge their receipt to the courtof the initiating state1953 c427 13

110140 Repealed by 1953c427 29110141 Payment of court fees The

petitioner filing a petition in this state shallpay all fees required by the responding stateNo petitioner shall be required to pay anyother court fees No fee shall be required forthe filing or handling of any papers receivedfrom another initiating state1953c427 14 1957c468 1 1959c587 1

110150 Repealed by 1953c427 29

110151 Arrest of respondent When byaffidavit and such other showing as thecourt may require the court of this stateacting either as an initiating or respondingstate has reason to believe that the respondent is about to flee the jurisdiction it may

a As an initiating state request in itscertificate that the court of the respondingstate obtain the body of the respondent byappropriate process if that be permissibleunder the law of the responding state or

b As a responding state obtain thebody of the respondent by appropriate process

1953 c427 15110160 Repealed by 1953c427 29

110161 Attorney General as State information Agency duties The AttorneyGeneral hereby is designated as the State

349

SUPERSEDED


Information Agency under this chapter andit shall be his duty

1 To compile a list of the courts andtheir addresses in this state having jurisdiction under this chapter and transmit thesame to the State Information Agency ofevery other state which has adopted theUniform Reciprocal Enforcement of SupportAct or a substantially similar Act

2 To maintain a register of such listsreceived from other states and to transmitcopies thereof as soon as possible after receipt to every court in this state havingjurisdiction under this chapter1953 c427 16

110170 Repealed by 1953c427 29

110171 Duty of court of this state acting as responding state When the court ofthis state acting as a responding state receives from the court of an initiating statethe copies referred to in ORS 110131 itshall

1 Docket the cause and2 Set a time and place for hearing and

issue citation to the respondent to appear atthe time and place so set by the court toshow cause why the relief asked for by thepetitioner in the initiating state should notbe granted1953c427 14 1957c468 21

110180 Repealed by 1953c427 29110181 Duty of responding court when

unable to obtain jurisdiction 1 If a court ofthis state acting as a responding state isunable to obtain jurisdiction of the respondent or his property due to inaccuracies orinadequacies in the petition or otherwise thecourt shall communicate this fact to thecourt in the initiating state shall on its owninitiative use all means at its disposal totrace the respondent or his property andshall hold the case pending the receipt ofmore accurate information or an amended

petition from the court in the initiating state2 If the respondent is not found within

the county where the petition is filed thedistrict attorney shall inform the court if hediscovers by any means that the respondentmay be found within another county of thisstate The clerk of the court shall uponrequest of the district attorney forward thedocuments received from the court in the

initiating state to the court in the countywhere respondent can be found The courtreceiving the documents and the district attorney of that county have the same powers

and duties as if the documents had been

originally addressed to them When the clerkof a court of this state retransmits documents to another court in this state he shallnotify the court of the initiating state1953c427 17 1961c630 1

110190 Repealed by 1953c427 29110191 Reserved for expansion

110200 Repealed by 1953c427 29

110201 Order of support If the courtof the responding state finds a duty of support it may order the respondent to furnishsupport or reimbursement therefor and subject the property of the respondent to suchorder1953 e427 18

110210 Repealed by 1953c427 29

110211 Responding state to transmitcopies of support orders to initiating stateThe court of this state when acting as aresponding state shall cause to be transmitted to the court of the initiating state a copyof all orders of support or for reimbursementtherefor

1953 c427 19

110220 Repealed by 1953c427 29

110221 Additional powers as responding court In addition to the foregoingpowers the court of this state when actingas the responding state has the power tosubject the respondent to such terms andconditions as the court may deem proper toassure compliance with its orders and inparticular

1 To require the respondent to furnishrecognizance in the form of a cash depositor bond of such character and in such amount

as the court may deem proper to assure payment of any amount required to be paid bythe respondent

2 To require the respondent to makepayments at specified intervals to the clerkof the court and to report personally to suchclerk at such times as may be deemed necessary

3 To punish the respondent who shallviolate any order of the court to the sameextent as is provided by law for contempt ofthe court in any other suit or proceedingcognizable by the court1953 c427 201

110226 Duty of district attorney whenorder of responding court cannot be enforcedIf enforcement of the courts order of support is impossible or cannot be completed by

R50

SUPERSEDED

RECIPROCAL ENFORCEMENT OF SUPPORT 110291

the court where the order was issued thedistrict attorney of that county shall transmit a certified copy of the order to the district attorney of any county in this statewhere it appears that procedures to enforcepayment of the amount due would be effective The district attorney to whom thecertified copy of the order is forwarded shallproceed with enforcement and report the results of the proceedings to the court firstissuing the order1961 c630 3

110230 Repealed by 1953c427 29

transmitted by the court of the respondingstate1953 c427 22

110250 Repealed by 1953c427 29

110251 Testimony of husband and wifeLaws attaching a privilege against the disclosure of communications between husbandand wife are inapplicable to proceedingsunder this chapter Husband and wife arecompetent witnesses and may be compelledto testify to any relevant matter includingmarriage and parentage1953 c427 23

110231 Duties of responding court regarding receipt and transmittal of supportpayments The court of this state whenacting as a responding state shall have thefollowing duties which may be carried outthrough the clerk of the court

1 Upon the receipt of a payment madeby the respondent pursuant to any order ofthe court or otherwise to transmit the sameforthwith to the court of the initiating stateand

2 Upon request to furnish to the courtof the initiating state a certified statementof all payments made by the respondent1953 c427 21

110240 Repealed by 1953c427 29

110241 Duty of initiating court regarding receipt and disbursement of support payments The court of this state when actingas an initiating state shall have the dutywhich may be carried out through the clerkof the court to receive and disburse forthwith

all payments made by the respondent or

110260 Repealed by 1953c427 29110261 Reserved for expansion110270 Repealed by 1953c427 29

110271 Credit of support paymentsagainst support payments due under otherproceedings Any order of support issued by acourt of this state when acting as a responding state shall not supersede any previousorder of support issued in a divorce separatemaintenance or any other proceedings butthe amounts for a particular period paid pursuant to either order shall be credited againstamounts accruing or accrued for the sameperiod under any such other proceedings1953 c427 24


110291 Severability If any provisionhereof or the application thereof to any person or circumstance is held invalid suchinvalidity shall not affect other provisionsor applications of the chapter which can begiven without the invalid provision or application and to this end the provisions of thischapter are declared to be severable1953 c427 25



851

SUPERSEDED

852

SUPERSEDED

TITLE 12

ESTATES OF DECEDENTS

Chapter 111 Descent and Distribution112 Uniform Simultaneous Death Act113 Dower and Curtesy Election Against Will114 Wills115 Initiation of Probate or Administration116 Administration of Estates117 Settlement and Distribution118 Inheritanoe Tax119 Gift Tax120 Escheat Estates of Persons Presumed to be Dead121 Actions and Suits Affecting Decedents Estates and Administration

Chapter 111


1963 reprint

Descent and Distribution

IN GENERAL

111010 Definitions and rules of construction forchapter

111020 Descent of real property111030 Distribution of personal property111040 Computation of degrees of kindred kin

dred of half blood

111050 Estates by curtest and dower not affected111060 Person causing death not to benefit there

from rule as to insurance and benefits111070 Right of nonresident alien to take property

by succession or testamentary disposition

ADVANCEMENTS

111110 Advancements considered as part of estateand of distributive share of descendant

111120 What grants and gills deemed advancements

111130 Nonconsideration of advancement in com

EFFECT OF ADOPTION AND ILLEGITIMACY

111210 Inheritance rights of adopted child fromadopting parents death under age orintestate

111212 Place and time of adoption as affectingInheritance by and from adopted person

111231 Descent and distribution where parents notmarried

853

puting widowspart111140 Effect of advancement on distribution111150 How advancement of realty considered ad

vancement of realty or personalty ofless than descendantsshare

111160 Determination of value of advancement111170 Death of child to whom advancement is

made

EFFECT OF ADOPTION AND ILLEGITIMACY

111210 Inheritance rights of adopted child fromadopting parents death under age orintestate

111212 Place and time of adoption as affectingInheritance by and from adopted person

111231 Descent and distribution where parents notmarried

853

SUPERSEDED


CROSS

Determination of heirship 117510 to 117560Election against will Ch 113Guardianship estate distribution 126530Inheritance tax determination of relationship for

118005

Suspension of civil rights during imprisonment137240 137250

Transfer of wards property not an ademption126495

111020

Interment plots descent of 97600Real property descends subject to possession of

administrator and satisfaction for claims againstestate 117320

Registered land to descend to personal representative of deceased 94405

White foreigners to enjoy the same rights ofdescent of property as native born citizensConst Art I 31

111030

Bank deposits disposition of on death of depositor708520 711575 716730

Beneficiarys right to proceeds of United Statesbond 114270

Brands descent of 604160

Damages recovered for wrongful death descent of30030 to 30070

Inquest disposition of property of deceased found on146250 to 146280 146590 146600 146610

Multnomah County employes interest in retirementfund disposition of deceased 238090

Payment upon death of person entitled to moneysfrom state 293490 to 293500

Public employes interest in retirement fund disposition of deceased 237165

Savings and loan association disposition of interest of deceased investor 722375 722380

State employe disposition of salary or wages ofdeceased 293490 to 293500

Teachers interest in retirement fund disposition ofdeceased 239259

Wages of deceased employe disposition of 292120to 292140 652190

111070

White foreigners to enjoy same rights of descentas native born citizens Const Art I 31

111210

Adopted person relationship to natural and adoptive parents 109041 109050

111231

Interpretation of this section 109090Legitimacy of issue of certain void marriages

106190 106210 1071505Paternity establishment of 109070

854E

SUPERSEDED

DESCENT AND DISTRIBUTI 111030

IN GENERAL er such real property shall descend in equalshares to the brothers and sisters of the

111010 Definitions and rules of con intestate and to the issue of any deceasedstruction for chapter For the purposes of brother or sister by right of representationthis chapter 4 If the intestate leaves no lineal de

1 Issue includes all the lawful and scendants surviving spouse father motherlineal descendants of the ancestor brother or sister such real property shall

2 Real property includes all lands descend to his or her next of kin in equaltenements and hereditaments and rights degree excepting that when there are twothereto and all interest therein whether in or more collateral kindred in equal degreefee simple or for the life of anotherP but claiming through different ancestors

3 Personal property includes allthose who claim through the nearest an

goods chattels money credits and effects cestor shall be preferredof any nature not included in the term real 5 When any child dies under the ageproperty of 21 years and leaves no surviving spouse

4 Inheritance by right of represen or children any real estate which descendedtation takes place when the lineal descend to such child shall descend to the heirs ofant of any deceased heir takes the same the ancestor from which such real propertyshare or portion of the estate of an intest descended the same as if such child diedate that the parent of such descendant would before the death of such ancestorhave taken if living 6 If the intestate leaves no lineal de

5 A posthumous child is to be deemed scendants or kindred such real propertyliving at the death of its parent shall escheat to the State of Oregon

111020 Descent of real property Whenany person dies seised of any real property

111080 Distribution of personal prop

or entitled to any interest therein in fee arty When any person dies possessed of any

simple or for the life of another not having personal property or of any right to or in

lawfully devised the same such real prop terest therein not having lawfully bequeathed the same such property shall

erty shall descend subject to his debts expenses of administration and to being sold

personalbe applied and distributed as follows

for the best interest of the estate or of the 1 If the intestate leaves a widow she

heirs devisees or legatees or for the pur shall be allowed all articles of her apparel

pose of distribution as follows and ornament according to the degree and

1 In equal shares to his or her chil estate of the intestate and such property

dren and to the issue of any deceased child and provision for the use and support ofherself and minor children as shall be alby right of representation and if there is

no child of the intestate living at the time lowed and ordered in pursuance of ORSof his or her death such real property shall 116005 to 116020 and this allowance shall

be made as well when the widow waives thedescend to all his or her other lineal descendants and if all such descendants are in the provision made for her in the will of hersame degree of kindred to the intestate they husband as when he dies intestate

shall take such real property equally or 2 The personal property of the intestotherwise they shall take according to the ate remaining after such allowance shall be

right of representation applied to the payment of the debts of the2 If the intestate leaves no lineal de deceased and the charges and expenses of

scendants such real property shall descend administration as provided by law

to the surviving spouse and if the intestate 3 The residue if any of the personalleaves no surviving spouse then such real property shall be distributed among the perproperty shall descend in equal proportions sons who would be entitled to the real prop

to his or her father and mother erty of the intestate and in the like pro3 If the intestate leaves no lineal de portion or share except as in this section

scendants surviving spouse or father such otherwise provided

real property shall descend to his or her 4 If the intestate leaves a survivingmother if the intestate leaves no lineal de spouse and issue such surviving spouse isscendants surviving spouse or mother such entitled to receive onehalf of the residue

real property shall descend to his or her fa of the personal property but if the intestatether if the intestate leaves no lineal de leaves a surviving spouse and no issue thescendants surviving spouse father or moth surviving spouse shall be entitled to receive

855

SUPERSEDED

111040 ESTATES OF DECEDENTS

the whole of the residue of the personalproperty

5 If there is no surviving spouse orkindred of the intestate the whole of theresidue shall escheat to the State of Oregon

111040 Computation of degrees of kindred kindred of half blood The degrees ofkindred shall be computed according to therules of the civil law and the kindred of thehalf blood shall inherit or receive equallywith those of the whole blood in the samedegree

111050 Estates by curtesy and dowernot affected Except as provided in ORS111060 nothing contained in this chaptershall affect or impair the estate of a widower as tenant by the curtesy nor that of awidow as tenant in dower

111060 Person causing death not tobenefit therefrom rule as to insurance andbenefits 1 No person who feloniously takesor causes or procures another so to take the

life of another shall inherit from such person or receive any interest whatsoever inthe estate of the decedent as survivingspouse or take by devise or legacy fromthe deceased person any portion of his or herestate

2 No beneficiary of any policy of insurance or certificate of membership issuedby any benevolent association or organization payable upon the death or disabilityof any person who in like manner takes orcauses or procures to be taken the life uponwhich such policy or certificate is issued orwho causes or procures a disability of suchperson shall take the proceeds of such policyor certificate However an insurance company shall be discharged of all liability under a policy issued by it upon payment of theproceeds in accordance with the terms thereof unless before such payment the companyshall have written notice by or on behalf ofsome claimant other than the beneficiarynamed in the policy that a claim to the proceeds of the policy will be made by theheirs of the deceased or disabled person under the provisions of this section

3 In every instance mentioned in thissection all benefits that would accrue toany person upon the death or disability ofthe person whose life is thus taken or whois thus disabled shall become subject to distribution among the other heirs of the deceased person according to the rules of descent and distribution in case of death as

856

provided by law and in case of disabilitythe benefits thereunder shall be paid tothe disabled person

111070 Right of nonresident alien totake property by succession or testamentarydisposition 1 The right of an alien notresiding within the United States or its territories to take either real or personal property or the proceeds thereof in this state bysuccession or testamentary disposition upon the same terms and conditions as inhabitants and citizens of the United States is dependent in each case

a Upon the existence of a reciprocalright upon the part of citizens of the UnitedStates to take real and personal propertyand the proceeds thereof upon the sameterms and conditions as inhabitants andcitizens of the country of which such alienis an inhabitant or citizen

b Upon the rights of citizens of theUnited States to receive by payment to themwithin the United States or its territoriesmoney originating from the estates of persons dying within such foreign country and

c Upon proof that such foreign heirsdistributees devisees or legatees may receivethe benefit use or control of money or property from estates of persons dying in thisstate without confiscation in whole or inpart by the governments of such foreigncountries

2 The burden is upon such nonresidentalien to establish the fact of existence ofthe reciprocal rights set forth in subsection1 of this section

3 If such reciprocal rights are notfound to exist and if no heir devisee or legatee other than such alien is found eligibleto take such property the property shall bedisposed of as escheated property


ADVANCEMENTS

111110 Advancements considered aspart of estate and of distributive share ofdescendant Any property real or personalthat may have been given by the intestatein his lifetime as an advancement to anychild or other lineal descendant shall beconsidered a part of the intestates estateso far as regards the division and distribution thereof among his issue and shall betaken by such child or other descendanttoward his share of the intestates estate

SUPERSEDED

DESCENT AND DISTRIBUTION

111120 What grants and gifts deemedadvancements All grants and gifts aredeemed made in advancement if so expressed in the grant or gift or if so chargedin writing by the intestate or acknowledgedin writing to be so made by the child orother descendant to whom it is made andnot otherwise

111130 Nonconsideration of advance

ment in computing widows part If the intestate leaves a widow and issue and anyof such issue has received an advancementfrom the intestate in his lifetime the valueof such advancement shall not be taken intoconsideration in computing the part to begiven to the widow but the widow shall onlybe entitled to receive the onehalf of theresidue after deducting the value of the advancement

111140 Effect of advancement on distribution If the amount of an advancementexceeds the share of the heir so advancedsuch heir shall be excluded from any furthershare or portion in the division or distribution of the estate but shall not be requiredto refund any part of the advancement Ifthe amount so received is less than his sharehe shall be entitled to so much more as willgive him his full share or portion of theestate of the intestate

111150 How advancement of realtyconsidered advancement of realty or personalty of less than descendantsshare Ifany advancement is made in real propertythe value thereof shall for the purposes ofORS 111140 be considered as part of thereal property to be divided If the advancement is either in real or personal propertyand shall in either case not exceed the shareor portion of such real or personal propertythat would come to the heir so advancedsuch heir shall not refund any part of it butshall take or receive so much less of thewhole part of the estate as will make thewhole share equal to those of the other heirswho are in the same degree with the heir soadvanced

111231

division and distribution of the estate suchadvancement shall be considered of the valueso expressed otherwise it shall be estimatedat its value when granted or given

111170 Death of child to whom advancement is made If any child or linealdescendant to whom an advancement ismade dies before the intestate leaving issuesuch advancement shall be deemed made tosuch issue and the division and distributionof the estate shall be made accordingly


EFFECT OF ADOPTION ANDILLEGITIMACY

111210 Inheritance rights of adoptedchild from adopting parents death underage or intestate An adopted child shall bearthe same relation to his adopting parentsand their kindred in respect to the inheritance of property as he would if he were thenatural child of such parents and if he diesunder age or intestate leaving propertysuch property shall be distributed as if hewere the natural child of such parents

111212 Place and time of adoption asaffecting inheritance by and from adoptedperson In applying the laws of descent anddistribution of this state the same effectshall be given to an adoption as is set forthin ORS 109041 irrespective of whether theadoption was granted heretofore or hereafter and irrespective of whether the adoption was consummated in Oregon1953 c650 21

111220 Repealed by 1957 c411 71

111230 Repealed by 1957 c411 71

111231 Descent and distribution where

parents not married In applying the lawsof descent and distribution of this state fulleffect shall be given to all relationships asdescribed in ORS 109060 Before the relationship of father and child and other relationships dependent upon the establishment of paternity shall be given effect in

h

111160 Determination of value of advancement If the value of the property realor personal so advanced is expressed in theconveyance or writing whereby the same isgranted or given or in the charge thereofmade by the intestate or in the acknowledgement by the party receiving it in the

f

determining inheritance rights heirs ipmust be established prior to the closing ofthe administration of the decedents estateor if the decedents estate is not administered in this or any other state then withinthree years after the decedents death Inthe event that such heirship be establishedsubsequent to proceedings for the sale of

157

SUPERSEDED


real property in the decedents estate the ing that citation was not issued to such heirsale proceedings shall be valid notwithstand 1957c411 3

111240 Repealed by 1957c411 7


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do herebycompared each section printed in this chapter with the original section inthat the sections in this chapter are correct copies of the enrolled sectionsof the changes in form permitted by ORS 173160 and other changes specificallyDone at Salem Oregonon December 2 1957

certify that I havethe enrolled bill and

with the exceptionauthorized by law

Sam R HaleyLegislative Counsel

858

SUPERSEDED


Uniform Simultaneous Death Act

112010

112020

112030112040

Disposition of property upon simultaneousdeath generally

Beneficiaries designated to take successively

Joint tenants or tenants by entiretyInsured and beneficiary

112050 Chapter not retroactive112060 Chapter does not apply if decedent pro

vides otherwise

112070 Construction and interpretation112080 Citation of chapter

859

SUPERSEDED


112010 Disposition of property uponsimultaneous death generally Where thetitle to property or the devolution thereofdepends upon priority of death and there isno sufficient evidence that the persons havedied otherwise than simultaneously theproperty of each person shall be disposedof as if he had survived except as providedotherwise in this chapter

112020 Beneficiaries designated to takesuccessively Where two or more beneficiaries are designated to take successively byreason of survivorship under another personsdisposition of property and there is no sufficient evidence that these beneficiaries havedied otherwise than simultaneously theproperty thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shallbe distributed respectively to those whowould have taken in the event that eachdesignated beneficiary had survived

112030 Joint tenants or tenants by entirety Where there is no sufficient evidencethat two joint tenants or tenants by theentirety have died otherwise than simultaneously the property so held shall be distributed onehalf as if one had survived andonehalf as if the other had survived Ifthere are more than two joint tenants andall of them have so died the property thusdistributed shall be in the proportion that

one bears to the whole number of joint tenants

112040 Insured and beneficiary Wherethe insured and the beneficiary in a policyof life or accident insurance have died andthere is no sufficient evidence that they havedied otherwise than simultaneously the proceeds of the policy shall be distributed as ifthe insured had survived the beneficiary

112050 Chapter not retroactive Thischapter shall not apply to the distributionof the property of a person who has died before July 5 1947

112060 Chapter does not apply if decedent provides otherwise This chapter shallnot apply in the case of wills living trustsdeeds or contracts of insurance wherein provision has been made for distribution ofproperty different from the provisions ofthis chapter

112070 Construction and interpretation This chapter shall be so construed andinterpreted as to effectuate its general purpose to make uniform the law in those stateswhich enact the Uniform SimultaneousDeath Act

112080 Citation of chapter This chapter may be cited as the Uniform Simultaneous Death Act

860

SUPERSEDED

Chapter 113


Dower and Curtesy Election Against Will

EFFECT OF EXCHANGE OR MORTGAGE OFLAND ON DOWER

113110 Exchange of land effect on dower election

GENERALLY

113010 Widows dower113020 Widowerscurtesy application of laws ap

Warrant for assignment of dower

plicable to dower113030 Election between provision in will and

ance and record of return costs

dower or curtesy113040 What constitutes election113050 Surviving spouses right to take under will

113160

or take one fourth interest in person

Endowment anew

alty personalty subject to expenses andtaxes

113060 What constitutes election under ORS113050

113070 Widow may remain in dwelling and havesustenance one year

113080 Alien or nonresident entitled to dower113090 Statute of limitation for recovery of dower

or curtesy

EFFECT OF EXCHANGE OR MORTGAGE OFLAND ON DOWER

113110 Exchange of land effect on dower election

ADMEASUREMENT OF DOWER AND CURTESY

by widow113120 Dower in land mortgaged before marriage113130 Dower in land mortgaged during coverture

Warrant for assignment of dower

for purchase money113140 Widow entitled to interest in surplus of

ance and record of return costs

mortgage sale113150 Effect on dower of satisfaction of mort

Widow may use land without having dower

gage by claimant under husband113160 Valuation of land enhanced in value after

Endowment anew

husbandssale

ADMEASUREMENT OF DOWER AND CURTESY

113210 Assignment of dower by probate courtproceedings in case of dispute

113220 Warrant for assignment of dower113230 Oath and duty of commissioners accept

ance and record of return costs113240 Property incapable of division113250 Widow may use land without having dower

assigned113260 Endowment anew

113270 Doweress not to suffer waste but to keepIn repair

113280 Bar of claim of dower by accepting assignment of dower

113290 Unauthorized recovery of dower not to prejudice infant heirs

BAR BY CONVEYANCE AND JOINTURE

113410 Bar of dower by conveyance113420 Bar of dower by jointure113430 How assent to jointure expressed113440 Pecuniary provision in lieu of dower113450 Election between jointure or pecuniary

provision and dower

DAMAGES FOR WITHHOLDING DOWER

113510 Recovery of damages in action for dower113520 Estimation of damages113530 Use of improvements not included in esti

mate of damages113540 Damages against heir

PROCEEDINGS FOR RELEASE OF DOWER ORCURTESY OF INCOMPETENT OR MISSING

PERSONS

113610 Procedure to obtain order authorizing deedor mortgage for incompetent spouseand relinquishing dower or curtesy

113620 Order to show cause113630 Service of order113640 Appointment of guardian duties and pow

ers of guardian113650 Decree113660 Provisions required to be made to protect

interests of incompetent person113670 Effect of conveyances or mortgages113680 Trustee of missing person may join with

spouse in conveyance resulting in releaseof dower or curtesy

113690 Procedure to obtain order authorizing trustee to release missing personsdower orcurtesy receipt of proceeds after sevenyears

CROSS REFERENCES


Prenuptial property agreements 108140Right to deferred or unpaid balance under contract

of sale of real property 93240113010

Conveyance of separate property by spouse ofinsane person 93170

Decree of separation from bed and board extinguishing dower and curtest 107280

Partners right in partnership property is not subject to dower or curtesy 684202e

Person causing death not to inherit receive by willor as spouse of deceased 111060

Registration of title proceedings effect on 94105Will may dispose of all property saving dower and

curtesy 114020

113020

Abandoned wifes right to deal with her separateproperty as feme sole 108070

See also Cross References under ORS 113010113030

Exercise of election by guardian 126300861

SUPERSEDED


113050

Beneficiarys right to proceeds of United Statesbond 114270

Decree of separation from bed and board barringelection 107280

Surviving spouses rights to personal property ofintestate 111030

113070

Provisions for widow and children during administration 116005 116010

113110


113210

Actions for the recovery of real property Ch 105Admeasurement of dower after judgment in action

to recover possession of real property 105065County court jurisdiction to admeasure dower5040

Partition suit for asserting dower Ch 105113250

Provisions for widow and children during administration 116005 116010

113410


Registration of title proceedings effect on dowerand curtesy 94105

Validation of certain conveyances 93810113510

Actions for the recovery of real property Ch 105Partition suit for asserting dower Ch 105

113610


Divorce on grounds of mental illness award ofproperty of mentally ill spouse to prevailingparty 107030

862

SUPERSEDED

DOWER AND CURTESY ELECTION AGAINST WILL 113060

GENERALLY

113010 Widows dower The widow ofevery deceased person shall be entitled todower the use during her natural life of onehalf part of all the land including any equitable estate in land whereof her husband wasseised of an estate of inheritance at any timeduring the marriage unless she is lawfullybarred thereof

113020 Widowers curtesy applicationof laws applicable to dower 1 The widower of every deceased person shall be entitledas tenant by the curtesy to the use duringhis natural life of onehalf part of all theland including any equitable estate in landwhereof his wife was seised of an estate ofinheritance at any time during their marriage although such husband and wife maynot have had issue born alive unless he islawfully barred thereof

2 Estates by the curtesy may be admeasured assigned and barred in the samemanner as dower and as far as practicableall other laws of this state applicable todower shall be applicable in like manner andwith like effect to estates by the curtesy

113030 Election between provision inwill and dower or curtesy If any land is devised to a surviving spouse or other provision is made for him in the will of the deceased spouse he shall make his electionwhether he will take the land so devised orthe provision so made or whether he will beendowed by the land of his deceased spousebut he shall not be entitled to both unless itplainly appears by the will to have been sointended by the testatorAmended by 1963 c308 1

113040 What constitutes electionWhen any spouse is entitled to an electionunder ORS 113030 he is deemed to haveelected to take such devise or other provision unless within six months after the dateof the admission of the will to probate hemakes executes and acknowledges and causes to be recorded in the deed records of thecounty where the estate is being administered his statement that he elects to acceptdower or curtesy instead of the provisions ofthe willAmended by 1963 c308 2

113050 Surviving spousesright to takeunder will or take one fourth interest in personalty personalty subject to expenses andtaxes 1 The surviving spouse of a de

cedent domiciled in this state at the time ofdeath shall have an election whether to takeunder the will of the decedent or to have andtake upon distribution an undivided onefourth interest in all the personal propertyof which the decedent died possessed whichinterest shall be in addition to and not inlieu of any right of dower or curtesy orhomestead

2 Such undivided one fourth interestin personal property shall be subject to thefollowing

a A proportionate share of the debtsof the decedent the expenses of last illnessand administration the inheritance tax computed under subsection 1 of ORS 118100and if applicable the inheritance tax of anyother state

b A proportionate share of the federalestate tax if any provided the total of allproperty passing to the surviving spouse ofa type which qualifies for the marital deduction under the federal estate tax law exceedsthe maximum marital deduction permittedunder such law Said proportionate shareshall be determined by first multiplying thetotal federal estate tax by the lesser of

A The total of all such property sopassing to the surviving spouse less the maximum marital deduction allowable or

B The value of such undivided onefourth interest

and then dividing the product thereof by asum equal to the value of the taxable estatefor federal estate tax purposes plus the exemption allowable under the federal estatetax law

c Being sold for the best interest ofthe estate or for purpose of distributionAmended by 1963 c272 1

113060 What constitutes election underORS 113050 The surviving spouse is

deemed to have elected to take under thewill unless within six months after the dateof the admission of the will to probate sheor he makes acknowledges serves on the executor or his attorney and causes to be filedin the estate proceedings a statement thatshe or he elects to take the undivided onefourth interest mentioned in ORS 113050 instead of under the will The clerk of thecourt shall record every such statement ofelection in the record of willsAmended by 1963 c271 1

863

SUPERSEDED


113070 Widow may remain in dwellingand have sustenance one year A widow mayremain in the dwelling house of her husbandone year after his death without beingchargeable with rent therefor and shall haveher reasonable sustenance out of the estatefor one year

113080 Alien or nonresident entitled todower A woman being an alien shall not onthat account be barred of her dower andany woman residing out of the state shall beentitled to dower of the land of her deceasedhusband lying in this state of which herhusband died seised and the same may beassigned to her or recovered by her in likemanner as if she and her deceased husbandhad been residents within the state at thetime of his death

113090 Statute of limitation for recovery of dower or curtesy No action or suitshall be brought after 10 years from thedeath of a decedent to recover or reduce topossession curtesy or dower by the survivingspouse of such decedent


EFFECT OF EXCHANGE OR MORTGAGEOF LAND ON DOWER

113110 Exchange of land effect ondower election by widow If a husbandseised of an estate of inheritance in landexchanges such land for other land hiswidow shall not have a dower of both butshall make her election to be endowed of theland given or of that taken in exchange andif such election is not evinced by the commencement of proceedings to recover herdower of the land given in exchange withinone year after the death of her husband sheshall be deemed to have elected to take herdower of the land received in exchange

113120 Dower in land mortgaged before marriage When a person seised of anestate of inheritance in land shall have executed a mortgage of such estate before marriage his widow shall be entitled to dowerout of the land mortgaged as against everyperson except the mortgagee and thoseclaiming under him

113130 Dower in land mortgaged during coverture for purchase money When ahusband purchases land during covertureand at the same time mortgages his estate

in such land to secure the payment of thepurchase money his widow is not entitled todower out of such land as against the mortgagee or those claiming under him althoughshe has not united in such mortgage but sheis entitled to dower as against all otherpersons

113140 Widow entitled to interest insurplus of mortgage sale In the cases mentioned in ORS 113120 or 113130 or in caseof a mortgage in which she has joined withher husband if the mortgagee or thoseclaiming under him after death of her husband causes the mortgaged premises to besold by virtue of such mortgage and a surplus remains after payment of the moneydue thereon and the costs and charges of thesale the widow is entitled to the interest orincome of onehalf part of such surplus forher life as dower

113150 Effect on dower of satisfactionof mortgage by claimant under her husbandIf in the cases specified in ORS 113120 to113140 the heir or other person claimingunder the husband pays and satisfies themortgage the amount so paid shall be deducted from the value of the land and thewidow shall have set out for her for herdower in the mortgaged lands the value ofonehalf of the residue after such deduction

113160 Valuation of land enhanced invalue after husbandssale When a widow isentitled to dower out of any land which hasbeen aliened by the husband in his lifetimeand such land has enhanced in value afterthe alienation in setting forth the widowsdower such land shall be estimated accordingto its value at the time it was so aliened


ADMEASUREMENT OF DOWER ANDCURTESY

113210 Assignment of dower by probate court proceedings in case of dispute1 When a widow is entitled to dower in

the land of which her husband died seisedit may be assigned to her in whatever counties the land may lie by the probate courtof the county in which the estate of thehusband is settled upon application of thewidow or any other person interested in theland Notice of such application shall begiven to the heirs devisees or any personclaiming under any of them in such manneras the court shall direct

64

SUPERSEDED

DOWER AND CURTESY ET ECMON AGAINST WIId 113290

2 If it appears on the trial of any proceeding before a county court for the admeasurement of dower from the evidence ofany of the heirs devisees or any personclaiming under any of them or from thepleadings that the right to dower is disputed by such heirs devisees or personclaiming under any of them the countycourt shall immediately make an entry thereof in its docket and cease all further proceedings and shall certify and return to thecircuit court a transcript of all the proceedings relating to such admeasurement ofdower together with all the process andother papers relating to such proceeding inthe same manner and within the same timeas upon appeal Thereupon the circuit courtshall proceed to admeasure the dower tofinal determination as if the proceedinghad been originally commenced therein anddisbursement shall abide the event of suchproceeding

113220 Warrant for assignment of

dower For the purpose of assigning dowerthe probate court shall direct a warrant toissue to three discreet and disinterested persons authorizing and requiring them to setoff the dower by metes and bounds when itcan be done without injury to the wholeestate

113230 Oath and duty of commissioners acceptance and record of return costsThe commissioners shall be sworn by a judgeof any court of record or a justice of thepeace faithfully to discharge their dutiesand forthwith shall set off the dower according to the command of the warrant mentioned in ORS 113220 and make return oftheir doings with an account of theircharges and expenses in writing to the appointing court When the return is acceptedand recorded and an attested copy thereoffiled in the office of the county clerk of thecounty where the lands are situated thedower shall remain fixed and certain unlesssuch confirmation is set aside or reversedCosts on appeal and onehalf of the costs ofsuch proceedings shall be paid by the widowand the other half by the adverse party

113240 Property incapable of divisionWhen the estate out of which dower is tobe assigned consists of a mill or other tenement which cannot be divided without damage to the whole and in all cases where theestate cannot be divided by metes and

bounds the dower may be assigned out ofthe rents issues and profits thereof to behad and received by the widow as a tenantin common with the other owners of theestate

113250 Widow may use land withouthaving dower assigned When a widow isentitled to dower in the land of which herhusband died seised she may continue tooccupy the same with the children or otherheirs of the deceased or may receive onehalf part of the rents issues and profitsthereof so long as the heirs or others interested do not object without having thedower assigned

113260 Endowment anew If a woman

is lawfully evicted of land assigned to heras dower or settled upon her as jointure oris deprived of the provision made for herby the will or otherwise in lieu of dowershe may be endowed anew in like manneras if such assignment jointure or other provision had not been made

113270 Doweress not to suffer wastebut to keep in repair No woman endowed ofany land shall commit or suffer any wasteon the same but every woman so endowedshall maintain the houses and tenementswith the fences and appurtenances in goodrepair and shall be liable to the person having the next immediate inheritance thereinfor all damages occasioned by any wastecommitted or suffered by her

113280 Bar of claim of dower by accepting assignment of dower When thewidow accepts an assignment of dower insatisfaction of her claim upon all the landof her husband it is a bar to any furtherclaim of dower against the heir of such husband or any grantee of such husband orheir unless such widow has been lawfullyevicted of the land so assigned

113290 Unauthorized recovery of dower not to prejudice infant heirs When awidow not having a right of dower shallduring the infancy of any of the heirs of thehusband or of any person entitled to thelands recover dower by the default or collusion of the guardian of such infant heirs orsuch other person such heir or person is notprejudiced thereby but when he comes to fullage has an action against such widow to recover the land so wrongfully awardedAmended by 1953c601 1

865

SUPERSEDED



BAR BY CONVEYANCE AND JOINTURE

113410 Bar of dower by conveyanceA married woman may bar her right ofdower in any estate conveyed by her husband or by his guardian if he is a minor byjoining in the deed of conveyance with orby executing a deed separately from herhusband or such guardian with or withoutmentioning the barring of dower thereinprovided that such separate deed if barringan inchoate right of dower shall not be executed to a stranger to the title but shall beexecuted to the grantee of her husband or tosuch granteesheirs or assigns

113420 Bar of dower by jointure Awoman may be barred of her dower in allthe land of her husband by a jointure settledon her with her assent before the marriageif such jointure consists of a freehold estatein land for the life of the wife at least totake effect in possession or profit immediately on the death of her husband

113430 How assent to jointure expressed Assent to jointure shall be expressed ifthe woman is of the age of 21 years by herbecoming a party to the conveyance bywhich it is settled and if she is under thatage by her joining with her father or guardian in such conveyance

113440 Pecuniary provision in lieu ofdower Any pecuniary provision that is madefor the benefit of an intended wife and inlieu of dower shall if assented to as provided in ORS 113430 bar her right of dowerin all the land of her husband

113450 Election between jointure orpecuniary provision and dower If any jointure or pecuniary provision is made beforemarriage and without the assent of the intended wife or if it is made after marriageshe shall make her election after the deathof her husband whether she will take suchjointure or pecuniary provision or be endowed with the land of her husband but sheshall not be entitled to both This electionshall be governed by the provisions of ORS113040

1130460 to 113500 Deserved for expansion866

DAMAGES FOR WITHHOLDINGDOWER

113510 Recovery of damages in actionfor dower Whenever in any action broughtfor the purpose a widow recovers her dowerin land of which her husband died seised sheis entitled also to recover damages for thewithholding of such dower

113520 Estimation of damages Damages for withholding dower shall be onehalfof the annual value of the mesne profits ofthe lands in which the widow recovers herdower to be estimated in a suit against theheirs of her husband from the time of hisdeath and in suits against other personsfrom the time of demanding her dower ofsuch persons

113530 Use of improvements not included in estimate of damages Damages forwithholding dower shall not be estimated forthe use of any permanent improvementsmade after the death of the widowshusbandby his heirs or by any other person claimingtitle to such lands

113540 Damages against heir When awidow recovers her dower in any land alienedby the heir of her husband she is entitled torecover of such heir in a civil action herdamages for withholding such dower fromthe time of the death of her husband to thetime of the alienation by the heir not exceeding six years The amount which she isentitled to recover from the heir shall be deducted from the amount she would otherwisebe entitled to recover from the grantee andany amount recovered as damages from thegrantee shall be deducted from the sum shewould otherwise be entitled to recover fromthe heir


PROCEEDINGS FOR RELEASE OFDOWER OR CURTESY OF INCOMPETENT

OR MISSING PERSONS

113610 Procedure to obtain orderauthorizing deed or mortgage for incompetent spouse and relinquishing dower orcurtesy 1 When a husband or wife isjudicially declared to be of unsound mindor incapable of conducting his or her ownaffairs the spouse of such incompetent personmay present a petition to a court havinggeneral equity jurisdiction in the countywhere the petitioner resides or where the

SUPERSEDED

DOWER AND CURTESY ELECTIO AGAINST WILL 113690

land to be affected is situated setting forththe facts and particularly describing theland sought to be conveyed or mortgagedand praying for an order authorizing theapplicant or some other person to executea deed of conveyance or mortgage for suchincompetent person and thereby relinquishing his or her right of curtesy or dower insaid land

2 The petition shall be verified by theoath of petitioner and shall be filed in theoffice of the clerk of the county where theproceeding is brought

113620 Order to show cause If it appears to the court from the petition that itis necessary or would not be detrimental tothe incompetent person that a deed be givenrelinquishing or conveying his or her curtesyor dower interest in the land the court shallmake an order directing the guardian andnext of kin of the incompetent person and allpersons interested in the land to appear before such court at a time and place to betherein specified not less than four nor morethan eight weeks from the time of makingthe order to show cause why such deedshould not be directed to be made by thecourt

113630 Service of order A copy of theorder shall be personally served on the incompetent person his guardian next of kinand all persons interested in the land at least10 days before the hearing of the petitionif such persons reside or are found in thestate If any of such persons reside out ofthe state or cannot be found in the state then

service may be made on such nonresidentand those who cannot be found in the stateby publication of the order once each weekfor four successive weeks in a newspaper

published in the county

113640 Appointment of guardian duties and powers of guardian If no guardianhas been appointed for the incompetent person the court shall appoint some discreetperson or attorney as his or her guardianThe guardian then or theretofore appointedshall inquire into the propriety good faithand necessity of the petition and may resistsuch application and subpena and take depositions to disprove or show the improprietyof granting the same

in good faith and the prayer ought to begranted the court shall enter a decree granting the prayer and authorizing petitioner orsome other proper person to make executeacknowledge and deliver all such conveyances or mortgages as shall be specified inthe decree

113660 Provisions required to be madeto protect interests of incompetent personThe court shall require of the petitioner asone of the conditions of granting the decreesuch security for the protection of the interests and for the proper support of the incompetent person as the court shall deem satisfactory The security shall be deposited withthe clerk of the court and suits may bemaintained thereon for the benefit of the in

competent person in any court of competentjurisdiction or the court shall order suchportion of the money received from the saleof the land as the court shall deem equitableand just to be set apart in such manner asthe court shall direct for the use and benefitof the incompetent person The sum so setapart shall be and remain subject to the control and order of the court

113670 Effect of conveyances or mortgages All deeds of conveyances or mortgages authorized and executed under theorder of any court made as provided in ORS113610 to 113660 shall be valid and shallconvey all the curtesy and dower interest ofthe incompetent person in and to the landso conveyed or mortgaged as fully as if suchperson had been sane and capable of conducting his or her own affairs and executedand acknowledged the same in due form oflaw

113680 Trustee of missing person mayjoin with spouse in conveyance resulting inrelease of dower or curtesy Whenever anyperson who has been determined to be amissing person pursuant to the provisions ofORS 127010 to 127190 has an inchoateright of curtesy or dower in any land locatedin the state the trustee appointed pursuantto those sections may join with the spouseof the missing person in a deed of conveyance for the purpose of and which shall result in the releasing of such right of doweror curtesy when authorized by the court soto do

113690 Procedure to obtain order

113650 Decree If the court is satisfied authorizing trustee to release missing perupon the hearing that the petition was made sons dower or curtesy receipt of proceeds

SUPERSEDED


after seven years 1 The spouse of themissing person referred to in ORS 113680shall file with the court a petition settingforth a description of the land in which themissing person has a right of dower orcurtesy and which it is proposed to conveyThe petition shall also state the actual valueof the tract of land the price to be realizedfrom any sale thereof the age of the missingperson and of the petitioner together withall other facts known to the petitioner affecting the value of the curtesy or dowerright in such property

2 Thereupon the court shall determinethe actual value of the curtesy or dowerinterest in the land and shall direct thatupon the payment of such amount to thetrustee he shall execute a deed of conveyanceon behalf of the missing person which conveyance shall operate to release the right of

curtesy or dower to the same extent asthough the deed had been executed by themissing person

3 The trustee shall hold the amountso paid to him until ordered by the courtto pay it to the spouse of such missingperson

4 At any time after seven years fromthe payment of the money to the trusteethe spouse of such missing person may appiyto the court for an order authorizing anddirecting the trustee to pay the same to suchspouse If it appears to the court upon ahearing that the person is still missing andhis whereabouts wholly unknown the courtshall presume the missing person to be deadand shall authorize and direct the trustee topay the money to the spouse of the missingperson


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I have comparedeach section printed in this chapter with the original section in the enrolled bill and that the sections inthis chapter are correct copies of the enrolled sections with the exception of the changes in form permittedby ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haleyon December 1 1963

Legislative Counsel

868

SUPERSEDED

Chapter 114


Wills

FORMALITIES

114010 Term will includes codicil

114020 Who may make wills limitations114030 Will to be in writing execution attesta

tion

114040 Person signing testators name to sign hisown name as witness

114050 Will of mariner or soldier

114060 Nonresidentswill affecting local propertylaw governing

114070 Devise or bequest to trustee of an existingtrust

REVOCATION

114110 Express revocation or alteration114120 When cancellation of will revives prior will114130 Subsequent marriage or divorce of testator

as a revocation114140 Bond or agreement to convey property de

vised as a revocation114150 Encumbrance as a revocation of previous

win

RULES OF CONSTRUCTION114210 Testators intent114220 Construction of devise for life with re

mainder in fee to children

114230 Presumption of devise of fee passing ofinterest acquired after making of willeffect of conveyance by testator afterwill made

114240 When issue of deceased devisee takesestate

114250 Pretermitted heirs to have portion of estate114260 Effect of advancement to pretermitted heir114270 Payment and ownership of proceeds of

United States bonds

WITNESSES AS BENEFICIARIES

114310 Invalidity of devise or legacy to person attesting will

114320 Attesting legatee may take intestate share114330 Result if there are sufficient other wit

nesses

114340 Creditor as witness

DEPOSIT OF WILLS WITH COUNTY CLERK

114410 Deposit of will with county clerk114420 Inclosure in sealed wrapper inscription114430 Delivery to testator during his lifetime

delivery after death114440 Public opening in court procedure when

jurisdiction is in another court

CROSS REFERENCES

Disputes respecting domicile of decedent 118855 to 114210

118880 Person feloniously causing death shall not take byElection against will 113030 to 113060 decedentswill 111060

114020Tenancy in common devise to two or more con

strued to be 93180Community property statute 108510 to 108540 Transfer of wards property not an ademptionDower and curtesy Ch 113 126495

Gift of body by will 97132 114220

Guardian of minor children appointment requested Conveyance by reversioners and remaindermen toby will 126166 life tenant vests fee 93160 93810

114030 114230

Evidence to prove a will 41520 Words of inheritance unnecessary to convey feeSubscribing witness defined 42030 93120

114260114050 Advancements generally 111110 to 111170

Time of proving and probating nuncupative will 114410115150 Custodian of will must deliver it to probate court

114060 115110

Proving and contesting foreign wills 115160 Restoring destroyed wills in possession of probate115180 court 7160

869

SUPERSEDED

114010

FORMALITIES

ESTATES OF DECEDENTS

114010 Term will includes codicil Theterm will as used in this chapter includesall codicils

114020 Who may make wills limitations Every person of 21 years of age andupward or who has attained the age ofmajority as provided in ORS 109520 ofsound mind may by will devise and bequeath all his or her estate real and personal saving to the widow if any herdower and to the widower if any hiscurtesyAmended by 1955 c69 11

114030 Will to be in writing executionattestation Every will shall be in writingsigned by the testator or by some otherperson under his direction in his presenceand shall be attested by two or more competent witnesses subscribing their names tothe will in the presence of the testator

114040 Person signing testators nameto sign his own name as witness Any personwho signs the testatorsname to any will byhis direction shall subscribe his own name asa witness to such will and state that he subscribed the testatorsname at his request

114050 Will of mariner or goldier Anymariner at sea or soldier in the militaryservice may dispose of his wages or otherpersonal property as he might have done bycommon law or by reducing the same towriting

114060 Nonresidents will affectinglocal property law governing Any personnot an inhabitant of but owning propertyreal or personal in this state may devise orbequeath such property by last will executed if realty is devised according to thelaws of this state or if personalty is bequeathed according to the laws of this stateor of the country state or territory in whichthe will is executed

114070 Devise or bequest to trustee ofan existing trust A devise or bequest in awill duly executed pursuant to the provisionsof this chapter may be made in form or substance to the trustee of a trust in existenceat the date of the testatorsdeath and established by written instrument executed prior

the last codicil thereto was executed subsequent to the time of execution of the trustinstrument and all amendments thereto1957 c345 1


REVOCATION

114110 Express revocation or alteration A written will cannot be revoked oraltered otherwise than by another writtenwill or another writing of the testator declaring such revocation or alteration andexecuted with the same formalities requiredby law for the will itself or unless the willis burnt torn canceled obliterated or destroyed with the intent and for the purposeof revoking the same by the testator himself or by another person in his presenceby his direction and consent and when sodone by another person the direction andconsent of the testator and the fact of suchinjury or destruction shall be proved by atleast two witnesses

114120 When cancellation of will revives prior will If after making any willthe testator shall duly make and execute asecond will the destruction canceling or revocation of such second will shall not revivethe first will unless it appears by the terms ofsuch revocation that it was his intention torevive and give effect to the first will orunless he shall duly republish his first will

114130 Subsequent marriage or divorceof testator as a revocation A will made byany person is deemed revoked by his or hersubsequent marriage or divorceAmended by 1955 c266 1

114140 Bond or agreement to conveyproperty devised as a revocation A bondcovenant or agreement made for a valuableconsideration by a testator to convey anyproperty devised or bequeathed in any willpreviously made is not deemed a revocationof such previous devise or bequest either inlaw or equity but such property shall passby the devise or bequest subject to the sameremedies on such bond covenant or agreement for the specific performance or otherwise against devisees or legatees as mightbe had by law against the heirs of the testator or his next of kin if the same had descended to them

to the execution of such will Such devise orbequest shall not be invalid because the trust 114150 Encumbrance as a revocationis amendable by the settlor or any other of previous will A charge or encumbranceperson or persons provided that the will or upon any real or personal estate for the

870

is

is

A

SUPERSEDED

J

114310

purpose of securing the payment of moneyor the performance of any covenant oragreement is not deemed a revocation ofany will previously executed relating to thesame estate The devises and legacies thereincontained shall pass and take effect subjectto such charge or encumbrance


RULES OF CONSTRUCTION

114210 Testatorsintent All courts andothers concerned in the execution of wills

shall have due regard to the directions ofthe will and the true intent and meaning ofthe testator in all matters brought beforethem

114220 Construction of devise for life

with remainder in fee to children If any person by will devises any real estate to anyperson for the term of such persons lifeand after his death to his or her children orheirs or right heirs in fee such devise shallvest an estate for life only in such deviseeand remainder in fee simple in such children

114230 Presumption of devise of feepassing of interest acquired after making ofwill effect of conveyance by testator afterwill made 1 A devise of real property isdeemed a devise of all the estate or interest

of the testator therein subject to his disposal unless it clearly appears from the willthat he intended to devise a less estate orinterest

2 Any estate or interest in real property acquired by anyone after the making ofhis or her will shall pass thereby unless itclearly appears therefrom that such was notthe intention of the testator

3 No conveyance or disposition of realproperty by anyone after the making of hisor her will shall prevent or affect the operation of such will upon any estate or interesttherein subject to the disposal of the testatorat his or her death

114240 When issue of deceased devisee

takes estate When any estate is devised toany child grandchild or other relative ofthe testator and such devisee dies before thetestator leaving lineal descendants such descendants shall take the estate real andpersonal as such devisee would have done ifhe had survived the testator

114310 Invalidity of devise or legacyto person attesting will Any beneficial devise legacy estate interest gift or appointment of or affecting any real or personalestate except charges in lands tenements orhereditaments for the payment of any debtgiven or made by will to any person whoattested the execution of the will is so far

only as concerns such person or any personclaiming under him void and such person

114250 Pretermitted heirs to have por shall be admitted as a witness to the execu

tion of estate If any person makes his will tion of the will871

and dies leaving a child or children or incase of their death descendants of suchchild or children not named or provided forin such will although born after the makingof such will or the death of the testator everysuch testator so far as regards such child orchildren or their descendants not providedfor shall be deemed to die intestate andsuch child or children or their descendantsshall be entitled to such proportion of theestate of the testator real and personal asif he had died intestate and the same shallbe assigned to them and all the other heirsdevisees and legatees shall refund their proportional part

114260 Effect of advancement to pretermitted heir If the child or children ortheir descendants referred to in ORS

114250 has had an equal proportion of thetestators estate bestowed on them in thetestators lifetime by way of advancementthey shall take nothing by virtue of theprovisions of ORS 114250

114270 Payment and ownership of proceeds of United States bonds Where anyUnited States savings bond or United Stateswar savings bond heretofore or hereafterissued is payable to a designated personwhether as owner coowner or beneficiaryand such bond is not transferable the rightof such person to receive payment of suchbond according to its terms and the ownership of the money so received shall not bedefeated or impaired by any statute or ruleof law governing transfer of property by willor gift or an intestacy However nothing inthis section shall limit ORS 41560 or ORS

chapter 95 relating to fraudulent conveyances and transfers


WITNESSES AS BENEFICIARIES

SUPERSEDED


ing the clerk a fee of 1 The clerk shall giveto the testator a certificate of such depositand shall safely keep every will so depositedHe shall keep an index of all such wills

114320 Attesting legatee may take intestate share If any attesting witness described in ORS 114310 would be entitled toany share in the testatorsestate in case thewill should not be established then so muchof the estate as would have descended orbeen distributed to such witness shall besaved to him as will not exceed the value ofthe devise or bequest made to him in thewill and he may recover the same from thedevisees or legatees named in the will in proportion to and out of the parts devised andbequeathed to him

114330 Result if there are sufficientother witnesses If the execution of the will

described in ORS 114310 is attested by asufficient number of other competent witnesses as required by ORS 114030 114050and 114060 then such devise legacy interest estate gift or appointment is valid

114340 Creditor as witness If by anywill any real estate is charged with any debtand any creditor whose debt is so chargedhas attested the execution of such will everysuch creditor shall be admitted as a witnessto the execution of such will

114350 Repealed by 1963c287 i114360 Repealed by 1963c287 1

114370 Repealed by 1963c287 1114380 to 114400 Reserved for expansion

DEPOSIT OF WILD WITH COUNTYCLERK

114410 Deposit of will with countyclerk A testator may deposit his will forsafekeeping in the office of the county clerkfor the county in which he resides upon pay

114420 Inclosure in sealed wrapper inscription Every will deposited pursuant toORS 114410 shall be inclosed in a sealedwrapper having inscribed upon it the nameand residence of the testator the day whenand the person by whom it was depositedThe wrapper may also have indorsed uponit the name of a person to whom the will isto be delivered after the death of the testator The wrapper shall not be opened until itis delivered to a person entitled to receive itor until it is otherwise disposed of in accordance with ORS 114430 to 114440

114430 Delivery to testator during hislifetime delivery after death During thelifetime of the testator the will shall bedelivered only to him or in accordance withhis order in writing signed by him and dulyacknowledged or with his signature satisfactorily proved to the county clerk Afterthe death of the testator it shall be delivered

to the person named in the indorsement ifhe demands it

114440 Public opening in court procedure when jurisdiction is in another courtIf the will is not called for by the person ifany named in the indorsement it shall bepublicly opened in court after notice of thetestators death If the jurisdiction of thecase belongs to another court it shall be delivered to the executors named in the will orshall be filed in the office of the countyclerk of such other court


Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill andthat the sections in this chapter are correct copies of the enrolled sections with the exceptionof the changes in form permitted by ORS 173160 and other changes specifically authorized by lawDone at Salem Oregon Sam R Haleon December 1 1963 Legislative Counsel

872

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C7Chapter 115


Initiation of Probate or Administration

NATURE OF PROCEEDINGS

115010 Pleadings and mode of procedure115020 Contents of petition to prove will or to ap

point executor or administrator

INITIATING PROBATE

115110 Custodian of will must deliver to propercourt liability

115120 Persons entitled to petition for proof of awin

115130 Order for production of will115140 County in which proof of will shall be taken115150 Probate and proof of nuncupative wills115160 Establishing foreign wills115170 Testimony of attesting witnesses affidav

its depositions115180 Contest of will115190 Letters testamentary administrator with

the will annexed115200 Issuance of letters of administration where

will declared inoperative115210 Form of letters testamentary115220 Copy of will to legatees and devisees

INITIATING ADM111TISTRATION115310 Jurisdiction to whom administration

granted serving copy of petition onclerk of State Land Board in certaincases

115320 Time for application115330 Appointment of special administrator

115340 Proceedings when will found after administration granted

115350 Form of letters of administration

EXECUTORS AND ADMINISTRATORSGENERALLY

115410 Persons not qualified to act115420 Nonresident or minor qualifying as execu

tor after disability removed115430 Necessity and amount of undertaking un

dertaking notwithstanding will115440 When sureties may become severally liable

for portions of undertaking115450 When new and sufficient undertaking may

be required115460 Effect of new undertaking or the failure

to give it115470 Removal of executor or administrator

grounds and procedure115480 Nonresident status as cause for removal

service of process if representative cannot be found

115490 Duty of court as to executors and administrators

115500 Continuation of administration after deathresignation removal or change of statusof executor or administrator

115510 Rights and powers of remaining or newadministrator

115520 Resignation of executor or administrator

115990 Penalties

PENALTIES

CROSS REFERENCES

Descent and distribution where parents not married 111231

Disputes respecting domicile of decedent 118855to 118880

115010

Fees collected by clerk of probate court 21310 to21380

Records in probate matters 7240115110

County clerk as custodian of wills 114410 t114440

115140

Jurisdiction of county court5010 5040Jurisdiction of probate matters 3130 5040 4609

115150

Nuncupative win authority of mariner or soldierto make 114050

115160

Judicial record of foreign jurisdiction proof aneffect of 43110 to 43190

115180

Disability must exist when right of action accrues12170

Probate contest filing fees 21313

115190

Bank or trust company effect of conversion consolidation or sale of assets on qualification tobe appointed executor 709230 709330 711050

0 711210

Coexecutors hold as joint tenants 93190Executor de son tort 121060

2 115310

Executor de son tort 121060Person presumed dead issuance of letters of ad

ministration 120360Trust company as administrator 709230

d Wrongdoer appointment of administrator of estateof 30090

873

SUPERSEDED


115410 115470Executor de son tort 121060 Imprisonment effect on fiduciaries 137240Imprisonment effect on fiduciaries 137240

115430

Deposits in lieu of bonds or undertakings Ch 22Expense of bond as a lawful expense of fiduciary

747100

Reduction of fiduciary bonds 709250 709260Release of sureties on bonds of fiduciaries 33510

33520

Security given by surviving partner for faithfulsettlement of partnership affairs 116460

Trust company posting of bond by 709240Undertaking increasing amount of when real prop

erty of estate is sold 116755

115500Bank or trust company effect of conversion con

solidation or sale of assets on fiduciary duties709330 711050 711210

Coexecutors hold as joint tenants 93190115510

Coexecutors hold as joint tenants 93190Rights of executor of a limited partner 69100

115990

Criminal penalty for administering estate withoutauthority 116990

874

is

SUPERSEDED

C7INITIATION OF PROBATE OR ADAHNISTRATION 115

NATURE OF PROCEEDINGS

115010 Pleadings and mode of procedure No particular pleadings or forms thereof are required in the exercise of jurisdictionof probate courts and the mode of procedurein the exercise of such jurisdiction is in thenature of a suit in equity as distinguishedfrom an action at law except as otherwiseprovided by statute The proceedings mustbe in writing and upon the petition of aparty in interest or the order of the courtAll petitions reports and accounts shall beverified by the person or at least one of thepersons making the same The court exercises its powers by means of

1 A citation to a party2 A verified petition of a party in

interest

3 A subpena to a witness4 Orders and decrees

5 An execution or warrant to enforceits orders and decrees

115020 Contents of petition to provewill or to appoint executor or administratorA petition to prove a will or for the appointment of an executor or administrator shall

set forth the facts necessary to give thecourt jurisdiction and also state whetherthe deceased left a will or not and the namesage and residence so far as known of hisheirs


MTIATING PROBATE

115110 Custodian of will must deliver

to proper court liability Every custodian ofa will within 30 days after receipt of information that the maker thereof is dead mustdeliver the same to the court having jurisdiction of the estate or to the executor

named therein Any such custodian whofails or neglects to do so is responsible forany damages sustained by any person injured thereby

115120 Persons entitled to petition forproof of a will Any executor devisee or legatee named in any will or any other personinterested in the estate may at any timeafter the death of the testator petition thcourt having jurisdiction to have the willproved whether the same is in his possession or not or is lost or destroyed or beyondthe jurisdiction of the state or is a nuncupative will

115130 Order for production of willIf it is alleged in any petition that any willis in possession of a third person and thecourt is satisfied that the allegation is correct an order must be issued and servedupon the person having possession of thewill requiring him to produce it at a timeand place named in the order

115140 County in which proof of willshall be taken Proof of a will shall be taken

by the probate court of a county as follows1 When the testator at or immediately

before his death was an inhabitant of thecounty irrespective of the place he mayhave died

2 When the testator not being an inhabitant of this state died in the countyleaving assets therein

3 When the testator not being an inhabitant of this state died out of the stateleaving assets in the county

4 When the testator not being an inhabitant of this state died out of the statenot leaving assets therein but where assetsthereafter come into the county

5 When real property owned by thetestator at the time of his death is situate

in the county and no other probate courthas gained jurisdiction under any of thepreceding subsections of this section


115150 Probate and proof of nuncupative wills 1 No probate of any nuncupativewill shall be granted for 14 days after thedeath of the testator

2 No proof shall be received of anynuncupative will unless it is offered withinsix months after speaking the testamentarywords nor unless the words or the substance thereof were reduced to writing within 30 days after they were spoken

3 No nuncupative will shall at anytime be proved unless a citation accompanied with a copy of the will together witha copy of the proposed proof of the will isissued to the widow or next of kin of the

decedent that she or they may contest thewill if she or they see fit so to do

115160 Establishing foreign wills 1If a will made pursuant to ORS 114060 is

e probated in any other state or territory ofthe United States or in any foreign countrycopies of such will and of the probate thereof certified by the clerk of the court inwhich such will was probated with the sealof the court affixed thereto if there is a

875

SUPERSEDED


seal together with a certificate of the chiefjudge or presiding magistrate that the certificate is in due form and made by the clerkor other person having the legal custody ofthe record shall be recorded in the samemanner as wills executed and proved in thisstate and shall be admitted in evidence inthe same manner and with like effect

2 If any will is filed or recorded in anyother state or territory of the Unites Statesor in any foreign country without probatethereof and probate of such will is not required by the law of the place when thesame is filed or recorded such will shall notbe deprived of record in this state by reasonof the lack of probate in the foreign jurisdiction but a copy of the will certified asprovided in subsection 1 of this sectionmay be filed in any court of competent jurisdiction in this state and thereafter suchcourt may direct that the testimony of thesubscribing witnesses to the original of suchwill be taken upon deposition issued as inother cases for taking the testimony of witnesses outside the jurisdiction of any courtIn all such cases the court shall designatethe commission before whom the testimonyof such witnesses shall be taken and whensuch deposition has been filed in such courtif it appears therefrom to the satisfactionof the court that the will was executed inall respects according to the laws of thisstate and that the testator was competentto execute the same the court may directthe certified copy of such will and the testimony of the witnesses to be recorded in thesame manner and with like effect as wills

executed and proven in this state

115170 Testimony of attesting witnesses affidavits depositions 1 Upon thehearing of a petition for the probate of awill ex parte and before contest is filed araffidavit of an attesting witness may beused in lieu of the personal presence of thewitness testifying in open court If an attesting witness is outside the reach of a subpena of the court having jurisdiction of theprobate of the will such witness may giveevidence of the execution of the will by attaching to his affidavit a photographic oxphotostatic copy of the will and may identify the signature of the testator and witnesses to the will by the use of the photographic or photostatic copy The affidavit smade shall be received in court and have thsame force and effect as to the matters con

tained therein as if such testimony weregiven in open court

2 However upon motion of any personinterested in the estate within 30 days afterthe order admitting the will to probate ismade or upon the discretion of the courtwithin that time the court may require thatthe witness making the affidavit be producedbefore the court for further examinationor if the witness is outside the reach of asubpena the court may prescribe that thedeposition of such witness may be taken andafter the order is obtained the depositionmay then be taken after notice to the proponent or his attorney in the manner provided in this state for the taking of depositions

3 However in case of contest of a willor the probate thereof in solemn form theproof of any or all material or relevant factsshall not be made by affidavit but in thesame manner as such questions of fact areproved in a suit in equity

115180 Contest of will 1 When a willhas been admitted to probate any personinterested may at any time within sixmonths after the date of the entry in thecourt journal of the order of court admittingsuch will to probate contest the same or thevalidity of such will but if a person entitledto contest the probate of a will or the validity thereof is laboring under any legal disability the time in which he may institutesuch contest shall be extended six monthsfrom and after the removal of such disability

2 Any will made pursuant to ORS114060 may be contested and annulled within the same time and in the same manneras wills executed and proven in this state

115190 Letters testamentary administrator with the will annexed 1 When a willis proven letters testamentary shall be issued to the persons therein named as executors or coexecutors or to such of them as

give notice of their acceptance of the trustand are qualified If all the persons thereinnamed decline to accept or are disqualifiedletters of administration with the will an

nexed shall be issued to the person to whomthe administration would have been grantedif there had been no will

2 Where a bank or trust company iso named in a will as executor or coexecutore and such company is converted as provided

by law or is consolidated with another bank876

is

SUPERSEDED

JJJ

INITIATION OF PROBATE OR ADMINISTRATION 115320

or trust company or sells its trust and fiduciary business or its trust department toanother bank or trust company pursuant toany law permitting such conversion consolidation or sale letters of administrationwith the will annexed shall be issued to such

converted consolidated or purchasing company if it is otherwise qualified

115200 Issuance of letters of admin

istration where will declared inoperativeIf after a will has been proven and letterstestamentary or of administration with thewill annexed have been issued thereon suchwill is set aside declared void or inoperativesuch letters shall be revoked and letters ofadministration issued

115210 Form of letters testamentaryLetters testamentary may be in the following form

State of OregonCounty of ssTO ALL PERSONS TO WHOM THESE

PRESENTS SHALL COME GREETINGKNOW YE That the Will of

deceased has been duly proved in the probate court for the county aforesaid and that

who named Execut thereinha been duly appointed such Execut bythe court aforesaid this therefore authorizes said to administer the estate of

said decedent according to lawIN TESTIMONY WHEREOF I

clerk of the court have hereunto subscribedmy name and affixed the seal of said courtthis day of A D 19

SealA B Clerk of the Court

an intestate shall be granted by the courtauthorized to take proof of a will as prescribed in ORS 115140 if such intestate hadmade a will Letters of administration thereof shall be issued as follows

a To the widow widower or next ofkin in the discretion of the court

b To one or more of the principalcreditors having claims against the estatewhich accrued prior to the death of the deceased

c If the intestate at the time of hisdeath was a citizen or subject of a foreigncountry or his or her heirs at law are allcitizens or residents of such foreign countryin that event to the consul vice consulconsular agent or other representative ofsuch foreign country resident in the Stateof Oregond To any other person competent and

qualified whom the court may select2 In every case in which the petition

for appointment of an administrator or admimstratrix does not specifically designateby name an heir or heirs of the decedentthe State Land Board is an interested partyand the party signing and presenting thepetition for the appointment of the administrator or administratrix shall immediatelyserve upon the clerk of the State LandBoard as provided by ORS 16770 to 1681016850 and 16860 a copy of the petition forappointment of the administrator or administratrix and no order appointing an administrator or administratrix therein shall be

granted by the court or entered until afterdue proof of service has been filed with theclerk of the court having jurisdiction in suchproceedings

115220 Copy of will to legatees and de115320 Time for application The per

visees Upon the entry of an order admitting any will to probate the appointed representative shall forthwith cause a copy of thedecedentswill to be mailed to each legateeand devisee named therein at his lastknown

address Proof of such mailing shall be madeby affidavit and filed at or before the hearing of the final account1963 c447 1

sons named in subsection 1 of ORS 115310if qualified and competent for the trustshall be entitled to the administration in the

order named If those named in paragraph aof that subsection do not apply for the administration within 30 days from the decease ofthe intestate they shall be deemed to haverenounced their right thereto but the courtor judge thereof in its discretion may if theyreside within the county direct that a cita

115225 to 115300 Reserved for expansion tion issue to them requiring them within

INITIATING ADMINISTRATIONsuch period to apply for or renounce theirright of administration If the persons named

115310 Jurisdiction to whom admin in paragraph b of that subsection do notlstration granted serving copy of petition make such application within 40 days fromon clerk of State Land Board in certain such decease and if the persons named incases 1 Administration of the estate of paragraph c of that subsection do not

77

SUPERSEDED


make such application within 50 days fromsuch decease they shall be deemed to haverenounced their right to the administration

115330 Appointment of special administrator When for any reason there is adelay in issuing letters testamentary or ofadministration and the property of the deceased is in danger of being lost injured ordepreciated the court may appoint a specialadministrator to take charge of the estateHe shall qualify in like manner and have thepowers and perform the duties of an administrator generally except that he is notauthorized to pay the debts of or otherwisedischarge any obligation against the deceased Upon the issuing of letters testamentary or of administration the powers ofsuch special adminstrator shall cease

115340 Proceedings when will foundafter administration granted If after administration has been granted upon an estate awill of the deceased is found and proventhe letters of administration shall be revokedand letters testamentary or of administration with the will annexed shall be issued

115350 Form of letters of administra

tion 1 Letters of administration may bein the following form


TO ALL PERSON TO WHOM THESE

PRESENTS SHALL COME GREETING

KNOW YE That it appearing to thecourt that has died intestateleaving at the time of h death propertyin this state and that the probate court forthe county aforesaid has duly appointed

administrat of the estate

of said decedent this therefore authorizessaid to administer the estate

of said decedent according to law

IN TESTIMONY WHEREOF etc thesame as in letters testamentary

2 Letters to an administrator of thepartnership with the will annexed or to aspecial administrator may be issued according to the foregoing forms with such variations as may be proper in the particular case


EXECUTORS AND ADMINISTRATORSGENERALLY

115410 Persons not qualified to actThe following persons are not qualified toact as executors or administrators Nonresidents of this state minors judicial officersother than justices of the peace persons ofunsound mind persons who have been convicted of any felony persons who have beenconvicted of a misdemeanor involving moralturpitude persons suspended for misconductor disbarred from the practice of law during the period of such suspension or disbarment

115420 Nonresident or minor qualifying as executor after disability removedIf a person is named in a will as executorwho is a nonresident of the state or a minorupon the removal of such disability he isentitled to qualify as such executor if he applies therefor within 30 days from the removal of such disability if otherwise competent If in the meantime an administratorwith the will annexed has been appointedhis powers and duties cease with the qualification of such executor but if another executor has qualified and is acting as suchthey thereby become joint executors

115430 Necessity and amount of undertaking undertaking notwithstanding will1 No executor or administrator shall exceptas stated in this section act as such until hefiles with the clerk of the court having jurisdiction of the estate an undertaking whichshall be void upon the condition that the executor or administrator faithfully performsthe duties of his trust according to law inan amount and with sureties as follows

a With one or more sufficient personalsureties approved by the court in a sum notless than double the probable value of thepersonal property of the estate plus doublethe probable value of the annual rents andprofits of and from the real property of theestate or

b If the undertaking is signed and executed by a surety company qualified totransact surety business in this state thenin a sum not less than the probable value ofthe personal property of the estate plus theprobable value of the annual rents and profits of and from the real property of the estate

2 When there are stocks and bondsregistered in the decedents name which

878

1u

SUPERSEDED

INITIATION OF PROBATE OR ADMINISTRATION 4115480

C

may not be sold or transferred of record bythe executor or administrator without an or

der of court authorizing such sale or transfer the required undertaking shall be basedonly upon the estimated dividends and interest to be derived from such stocks and bonds

during the period of administration unlesssuch stocks and bonds are ordered by thecourt to be sold at which time a further undertaking shall be required by the court forthe full market value of such stocks andbonds

3 When by the terms of his will atestator expressly declares that no bondshall be required of his executor such executor may act upon taking an oath faithfullyto perform his trust without filing the undertaking mentioned in this section butsuch executor is criminally and civilly liablefor any dereliction of duty as are other executors and administrators Notwithstand

ing such provisions in a will the court mayat any time in its discretion upon the petition of any person interested in the estaterequire such executor to give the undertaking required by this section

4 If upon filing the inventory or atany time thereafter it appears to the satisfaction of the court that the penalty namedin the undertaking is other than the amountrequired by this section the court may byorder reduce or increase the penalty of theundertaking accordingly

5 Nothing in this section shall affectthe provisions of ORS 709230 and 709240relating to a trust company acting as executor or administrator

115440 When sureties may become severally liable for portions of undertakingWhenever the penal sum in the undertakingprescribed by ORS 115430 exceeds 2000three or more sureties may become severallyliable for portions of that sum if the aggregate sum for which such sureties becomeliable equals the penal sum provided in theundertaking

115450 When new and sufficient under

taking may be required Whenever t h eamount of an executors or administrators

undertaking is insufficient or the suretiestherein or either of them have become non

residents of this state or are likely to orhave become insolvent the executor or administrator shall be required to give a newand sufficient undertaking The application

E

for such new undertaking may be made byany heir legatee devisee creditor or otherperson interested in the estate and in themanner prescribed in ORS 115470 for theremoval of executors and administrators

115460 Effect of new undertaking orfailure to give it The new undertaking required under ORS 115450 when given andreceived discharges the sureties in the former undertaking from any liabilities on account of their principal arising from his actsor omissions subsequent thereto When anew undertaking is ordered if the executoror administrator fails to comply therewithwithin five days from the entry thereof orsuch further time as the order may prescribe thenceforward the authority of suchexecutor or administrator ceases and he isdeemed removed and his letters revoked

115470 Removal of executor or admin

istrator grounds and procedure Any heirlegatee devisee creditor or other person interested in the estate may apply for the removal of an executor or administrator whohas ceased to be a resident of this state or

becomes mentally incompetent or has beenconvicted of any felony or a misdemeanorinvolving moral turpitude or who in anyway has been unfaithful to or neglectful ofhis trust to the probable loss of the applicant or the estate Such application shallbe by petition and upon notice to the executor or administrator served in the mannerprovided for the service of summons If thecourt finds the charge to be true it shallgive and make an order removing such executor or administrator and revoking hisletters

115480 Nonresident status as cause for

removal service of process if representativecannot be found If an executor or an administrator becomes a nonresident of this

state he may be removed and his lettersrevoked in the manner prescribed in ORS115470 and whenever after due diligencethe person to whom letters have been granted cannot be found within the state serviceof process issuing from the probate courtmay be made upon his bondsman and if heor it cannot be found within the state uponthe county clerk of the county in which theproceeding is pending in like manner andwith like effect as if it were served personallyupon such person to whom letters haveissued

19

SUPERSEDED


115490 Duty of court as to executorsand administrators Whenever it appearsprobable to the court or judge that any ofthe causes for removal of an executor or

administrator exists or have transpired asspecified in ORS 115470 it is the duty ofsuch court or judge to cite the executor oradministrator to appear and show cause whyhe should not be removed and if he failsto appear or show sufficient cause an ordershall be made removing him and revokinghis letters It is the duty of the court orjudge thereof to exercise a supervisory control over an executor or administrator tothe end that he faithfully and diligently performs the duties of his trust according tolaw

115500 Continuation of administration

after death resignation removal or changeof status of executor or administrator 1Whenever an executor or administrator diesresigns or is removed if there is a coexecutor or administrator he shall thenceforward

exercise the powers and perform the dutiesof the trust If all the executors or admin

istrators die resign or are removed administration of the estate remaining unadministered shall be granted to those next entitled if they are competent and qualified

2 Whenever a bank or trust companyis appointed and qualified as an executor oradministrator and thereafter such companyis converted as provided by law or is consolidated with another bank or trust companyor sells its trust and fiduciary business orits trust department to another bank ortrust company pursuant to any law permitting such conversion consolidation or salethe converted consolidated or purchasingcompany shall continue and complete theadministration of the estate as though it hadbeen originally appointed as the executoror administrator with all the rights obligations and responsibility incident thereto

115510 Rights and powers of remainingor new administrator The surviving or remaining executor or administrator or thenew administrator as the case may be isentitled to the exclusive administration of

the estate and for that purpose may maintain any necessary and proper action suit orproceeding on account thereof against theexecutor or administrator ceasing to act oragainst his sureties or representatives

115520 Resignation of executor or administrator The court or judge thereof inits discretion may allow an executor or administrator to resign when it appears thatsuch executor or administrator has publisheda notice of his intention to apply therefor insome newspaper in general circulation in thecounty for the period of four weeks priorto such application and that he is not indefault in any matter connected with theduties of his trust Such executor or admin

istrator shall pay the cost of the proceeding and if the application is allowed heshall surrender his letters to be canceledand his powers as such shall cease from thattime forward


PENALTIES

115990 Penalties Any person whowilfully sequesters or secretes any last willof a person then deceased or who havingthe custody of any such will wilfully failsor neglects to produce and deliver the same tothe judge of the court having jurisdiction ofits probate or to any executor named therein within a reasonable time after the deathof the testator thereof with intention to injure or defraud any person interested therein is punishable upon conviction by imprisonment in the county jail not more thanone year or by a fine not exceeding 500



880

SUPERSEDED

Chapter 116


Administration of Estates

SUPPORT OF SURVIVING SPOUSE ANDMINOR CHILDREN

116005 Possession of homestead wearing appareland furniture before inventory provision for support

116010 Setting apart property exempt from execution

116015 Further order for support116020 Small estates setting apart to surviving

spouse and children termination of administration

116025 When estate all to be deemed assets

POWERS AND DUTIES OF EXECUTORS ANDADMINISTRATORS GENERALLY

116105 Possession and control of property116110 Performance of contract to convey116115 Authority of executor when will includes

gift of body for scientific and medicalpurposes nonliability for actions

116120 Right to file notice of and perfect lien116125 Power to borrow money116130 Executor or administrator may compound

for debts due estate

116135 Medium of compromise of secured debtsbonds of federal corporations

116140 Right to redeem mortgaged property116145 Order for sale where redemption deemed

improper116150 Citation to mortgagee or payee applica

tion of proceeds of sale116155 Inapplicability of sections to certain mort

gages and liens116160 Satisfaction of debt not due116165 Power to redeem property sold at fore

closure or execution sale118170 Authority of executor or administrator to

continue a business116175 Debts incurred in operating a business116180 Discontinuance of business or modification

of authority116186 Delivery of personal property and payment

of debts to foreign administrators andexecutors publication of notice effectof payment or delivery

116190 Recording of copies of records in othercounties wherein real property is situated

116195 Discharge of representative conditioned oncompliance with ORS 116190 filing order of discharge

DISCOVERY OF ASSETS

116305 Proceedings in case of refusal to discloseproperty

116310 Mode of examination116315 Proceedings in case such person refuses to

appear or answer116320 Person intrusted with property of estate

compelled to account116325 Damages for embezzlement alienation or

conversion of property before administration granted

116330 Avoidance of acts of decedent in fraud ofcreditors

116355 Order allowing proceedings therefor116340 Disposition of property recovered

INVENTORY AND APPRAISAL

116A05 Inventory of estate when and how made116410 Money of deceased and debts due deceased116415 Property discovered after filing inventory116420 Appraisement appointment of appraisers116425 Compensation of appraisers116430 Oath of appraisers116435 Each article to be separately appraised

appraisement of money and debts116440 Debt due from person named as executor

inclusion in inventory liability for debt116445 Discharge by will or bequest of a claim of

decedent

116450 Inventory and appraisal of copartnershipproperty duties of surviving partner

116455 Surviving partner may remain In possession of partnership estate accountingby partner

116460 Security of surviving partner for faithfulsettlement of affairs

116465 Failure of partner to file Inventory appraisal account or bond contempt appointment of receiver

CLAIMS AGAINST THE ESTATE

116505 Publication of notice by executor or administrator

116510 Time for presentation of calms effect ofnonpresentation of claim In time

116515 Verification of claims production of written evidence of claim

116520 Indicating approval or rejection of claims116525 Contesting rejected claims election to have

matter tried as action or suit in circuitcourt

116530 Summary determination116535 Appeal from summary order of county

court

116540 Notice demanding trial after summary determination

116545 Time within which action or suit must befiled in circuit court trial de novo

116550 Appeal to Supreme Court116555 Statute of limitations shall not be waived

quantum of proof to establish claims116560 Costs and disbursements decrees for pay

ment of money how enforced116565 Effect of judgment or decree against exe

cutor or administrator116570 Proof of judgment rendered against de

ceased in his lifetime execution notprevented

116575 Reference of claim116580 Claim of executor or administrator116585 Determination of claim of executor or ad

ministrator on settlement of final aocount

116590 Exemption of homestead when it Is notdevised

385

SUPERSEDED

CK 116 CROSS

116595 Exemption of homestead when it is devised

SALE OR LEASE OF PROPERTY

116705 Applicatioit for order for sale citation toheirs

116710 Application to sell personalty terms ofsale

116715 Time manner and of sale of personalty return

116720 Personalty may be sold at private salespecial bequests exempt

116725 Effect of escheat of personalty on powerto order sale

116730 Real property when sold specific devises116735 Sale of realty to obviate resort to specific

bequest or legacy116740 Contents of petition to sell realty116745 Citation of heirs and devisees time for

appearance

116750 Manner of service of citation effect ofpersonal appearance

116755 Order to sell undertaking of executor oradministrator

116760 How sale is made security for purchaseprice

116765 Sale where all estate or realty does notexceed 500

116770 Sale of contract for the purchase of realproperty

116775 Sale of contract subject to deferred payments undertaking of purchaser

116780 Assignment of contract effect116785 Acceptance of real property in part pay

ment of price116790 Report of proposal to accept other real

property in part payment116795 Hearing on objections to proposal to accept

other real property in part payment116800 Conveyance to executor or administrator

of real property accepted in part payment

116805 Return of sale and objections thereto116810 Confirmance or vacation of sale resale116815 Recitals in conveyance effect116820 Effect of order of confirmation when pur

chase by executor or administrator void116825 Disposition of property under power in will116830 Proceeding in case property appropriated

by will insufficient116835 Validation of certain sales

116840 Lease of real property petition116850 Contents of petition to authorize lease116860 Court order hearing116870 Manner of service of citation

116880 Terms of lease royalty on mineral leases116890 Effect of lease extending beyond duration

of guardianship or estate proceeding116900 Application of ORS 116745 116825 116840

to 116900 126436 and 126490

PENALTIES116990 Penalties

CROSS REFERENCES


Disputes respecting domicile of deceedent 118855 to118880

Executors and administrators generally Ch 115Fees in probate proceedings 21310 to 21380Gift to minor duty of custodian upon death of minor

126820

Inheritance tax lien effect of sale or mortgage ofproperty of estate 118230 118280

Notice to State Treasurer of devise or descent ofrealty 118480

Records in probate proceedings7240 205220Trust deed sale notice of 86740 86770Unclaimed property disposition of 98332 98302 to

98436

Winding up guardianship estate 126530116005

Widow allowed articles of apparel and ornament111030

Widow may remain in dwelling and have sustenance for one year 113070

Widow may use land without having dower assigned 113250

116010

Decree of separation from bed and board extinguishing homestead rights 107280

116105

Causes of action survive to the personal representative 30020 to 30080 121020

Commencement of actions against executors andadministrators 121080 121090

Funeral charges who may incur 117150Investments by executors and administrators

Mortgage participation certificates and securities guaranteed by mortgage insurance746080

Property approved by Federal Housing Administrator 86610 86620

Savings and loan associations 722325 722330Scope generally 128020 to 128050

Registered land devolves as personalty to executoror administrator 94405

Registered land power of executor or administrator to deal with 94410 to 94445

Representative chargeable with all the property ofthe estate which comes into his possession117160

Revival of causes of action in personal representative time for commencement 12190

116110

Contract for the purchase of real property sale of116770 to 116780

Execution of deed where executor or administrator has been discharged or refuses to sat 93420

116115

Effect of compliance with will making gift of body97134

116140

Foreign executors and administrators authority tosatisfy mortgages 86130

116165

Redemption generally 23530 to 23570116170

Collection agency operation of business of deceased697165

Debt consolidation agency operation of business ofdeceased 697695

Liquor licensee operation of business of deceased471301 472141

Partnership continuation of business upon death ofpartner 68630 68640 116450 to 116465

116180

Motor carrier continuation of business by executoror administrator 767185

116186

Foreign executors or administrators authority tosatisfy mortgages 86130

116305

Bank deposits of decedent payment to survivorswithout probate accounting to administrator708520

Coroners or district attorneys inquest propertyfound at payment to personal representative146270 146600

882

SUPERSEDED

CROSS REFERENCES

Cost of care of person at state institution determination of ability to pay 179640

Declaratory judgments availability to executorsand administrators 28040

Payee of public assistance check or warrant payment to survivors upon death of 411610

Person entitled to payment from state payment tosurvivors upon death of accounting to administrator 293490 to 293500

Savings and Loan Association interest in payment of without probate accounting to administrator 722380

State employes payment of wages upon death ofaccounting to administrator 291526 to 291530

Teachers retirement fund payment of deceasedsinterest in 239259

Veteran as payee of compensation warrant forbonus bond payment to survivor upon death of407400

116325See Cross References to ORS 116305

116330

Declaratory judgment available to executor or administrator 28040

Fraudulent conveyances and transfers Ch 95Liability of estate where decedent fraudulently ob

tained public assistance 411620116405

Disposition by executor or administrator of notarypublic of his official records and papers 194130

116420

Inheritance tax inventory and appraisal for 118610to 118700

Mode of determining value of securities 33610116435

Appraisal for determining inheritance tax 118640118650

116450

Deceased partners personal representative accountable to surviving partner 68340

116455

Continuation of business on death of partner68630 68640

Death of partner rights in partnership property68420

116465

Bonds and undertakings or deposits in lieu thereof Ch 22

Release of sureties on fiduciaries bonds 3351033520

116505

Claim of county for expenses of burying poor416320

Notice of appointment of executor or administratorand notice of sale of property when estate doesnot exceed minimum sum 116765

Notice to State Treasurer of devise or descent ofrealty 118480

Preferred claims amounts due Industrial AccidentFund by deceased employers as 656562

Public assistance as claim against estate of deceased recipientBlind aid to 416310Disabled aid to 412600Generally 416310Medical assistance to aged 413200Old age assistance 413200

116510

Compounding debts due estate 116130116515

Funeral charges who may incur 117150116525

Presentation of claims to circuit court3140 3340116535

Undertaking on appeal may be dispensed with ifappellant is executor or administrator 19050

CH 116

116550

Undertaking on appeal may be dispensed with ifappellant is executor or administrator 19050

116555

Declarations of decedents admissibility 41850116560

Costs chargeable against estate unless judge ordersotherwise 20150

116575

Powers of referees Ch 17

116590

Amount of homestead exemption 23240 23250Claiming and setting off homestead 23270Exempt property generally Ch 23Homestead exemption inapplicability to certain

liens and mortgages 23260Public assistance claims 411620 413200 416310

116595See Cross References under OAS 116590

116705

Bulk sales law does not apply to executors or administrators 761030

Power to sell property to pay inheritance tax118280


Securities Oregon Securities Act does not applyto executors and administrators sales of 59120

Special Acts for sales by executors or administrators prohibited Const Art IV 23

116710

Funeral charges who may incur 117150116715

Liquor licensee sale of stock of deceased 471301472141

Motor vehicle transfer of by executor or administrator 481415

Stock of corporation or banking association belonging to decedent sale of prohibited prior topayment of inheritance tax unless State Treasurer consents 118310 to 118340

116730

Power to sell property to pay inheritance tax118280


116745

Application of 1963 amendment 116900116755

Amount of undertaking required of executors andadministrators 115430

Bonds and undertakings or deposits in lieu thereofCh 22

Release of sureties on fiduciaries bonds 3351033520

116770

Performance of contract to convey real property116110

116775

Bonds and undertakings or deposits in lieu thereofCh 22

116800

Conveyance to executors or administrators createsjoint tenancy 93190 93200

116810

Execution of deed where executor or administratorhas been discharged or refuses to act 93420

116825

Application of 1963 amendment 116900116835

Repeal of validating statutes effect of 174070116990

See Cross References to ORS 111030 for disposition of certain personalty without probate ofestate

883

SUPERSEDED

116005 ESTATES OF DECED

SUPPORT OF SURVIVING SPOUSEAND MINOR CHILDREN

116005 Possession of homestead wearing apparel and furniture before inventoryprovision for support Until administrationof the estate is granted and the inventoryfiled the surviving spouse and minor children of the deceased are entitled to remainin the possession of the homestead all thewearing apparel of the family and household furniture of the deceased The widowand minor children shall also have a reason

able provision for their support during suchperiod to be allowed by the court

116010 Setting apart property exemptfrom execution Upon the filing of the inventory the court or judge thereof shallmake an order setting apart for the widowwidower or minor children of the deceasedif any all the property of the estate exempt from execution according to exemption laws in effect as of date of death of de

ceased The property thus set apart is theproperty of such widow or widower to beused or expended by her or him in the maintenance of herself or himself and minor chil

dren if any If there is no widow or widower it is the property of the minor child orif more than one child then of the minorchildren in equal shares to be used or expended in the nurture and education of suchchild or children by the guardian thereof asthe law directs

116015 Further order for support Ift h e exempt property described in ORS116010 is insufficient for the support of thewidow and minor children according to theircircumstances and condition in life for oneyear after the filing of the inventory thecourt or judge thereof may order that theexecutor or administrator pay to such widow if any and if not then to the guardianof such minor children an amount sufficientfor that purpose but such order shall not bemade unless it appears probable that theestate is sufficient to satisfy all the debtsand liabilities of the deceased and pay theexpenses of administration in addition to thepayment of such amount

116020 Small estates setting apart tosurviving spouse and children terminationof administration If upon filing the inventory of the estate of an intestate decedentwho died leaving a spouse or minor childrenit appears from the inventory that the valueof the estate does not exceed 1000 over

884

and above property exempt from executionthe court or judge thereof shall make adecree providing that the whole of the estateafter the payment of funeral expenses andexpenses of administration be set apart forsuch spouse or minor children in like mannerand with like effect as in case of propertyexempt from execution There shall be nofurther proceeding in the administration ofsuch estate unless further property is discovered


116025 When estate all to be deemedassets If an intestate leaves neither surviving spouse nor minor children all the property of the estate is assets in the hands ofthe administrator for the payment of funeral expenses expenses of administration thedebts of the deceased or distribution according to law


POWERS AND DUTIES OF EXECUTORSAND ADMINISTRATORS GENERALLY116105 Possession and control of prop

erty The executor or administrator is entitled to the possession and control of theproperty of the deceased both real and personal and to receive the rents and profitsthereof until the administration is completed or the same is surrendered to the heirs ordevisees by order of the court or judge thereof but where any such property is in thepossession of a third person by virtue of avalid subsisting lease or bailment the possession and control of the executor or administrator is subordinate to the right of thelessee or bailee During the time the property is in the possession or control of theexecutor or administrator it is his duty tokeep the same in repair and preserve it fromloss or decay as far as possible

116110 Performance of contract to

convey 1 If any deceased person was atthe time of his death a party to a bond fora deed or other enforceable contract requiringhim to convey real estate the interest andtitle of the deceased may be conveyed by hisexecutor or administrator upon full compliance with the terms and conditions of suchbond or contract by the other party theretoand a deed so made transfers the same titleas though made by the deceased if living

2 Such conveyance shall be made uponreport to the judge of the court in which

SUPERSEDED

J

ADMINISTRATION OF ESTATES

the estate of such deceased person is beingadministered showing that all the terms andconditions of the bond or contract have beenmet so as to entitle the other party theretoto a conveyance and the judge shall if satisfied therewith thereupon make an orderauthorizing and directing the execution anddelivery of the requisite deed to the properparties

116115 Authority of executor when willincludes gift of body for scientific and medical purposes nonliability for actions Theauthority of a person named executor of awill which includes a gift pursuant to ORS97132 extends to performing acts necessaryto carrying out the gift although the letterstestamentary have not been issued A personnamed executor who carries out the gift ofthe testator before issuance of letters testa

mentary or under a will which is not admitted to probate shall not be liable to thesurviving spouse or next of kin for performing acts necessary to carry out the gift ofthe testator

1961 c674 4

116120 Right to file notice of and perfect lien If any person who is entitled to alien under the provisions of any statute ofthis state dies prior to the expiration of thetime allowed by law for the filing of noticeof such lien or otherwise perfecting thesame the executor administrator or legalrepresentative of such person has the samerights to file notice and to perfect the lienthat his testator or intestate would or mighthave if living

116125 Power to borrow money Anexecutor or administrator with the consentof the court in which the estate is being administered may borrow money upon anyproperty belonging to the estate and executea mortgage thereon as security at such rateof interest and upon such terms as the courtshall prescribe for the purpose of fundingthe indebtedness against the estate or forthe purpose of paying the interest on outstanding obligations that are liens on premises to be mortgaged or for the purpose ofsecuring funds for the payment of expensesof administration taxes or indebtedness ofthe estate of decedent or for the purposeof paying off homestead dower curtesy orexempt property rights when it is shownby verified petition to the satisfaction ofthe court to be necessary whether suchproperty has or has not before that time

116140

been mortgaged by the decedent or his executor or administrator

116130 Executor or administrator maycompound for debts due estate Whenever adebtor of a deceased person is unable to payall his debts an executor or an administrator by order of the court or judge thereofmay compound with him and give him a discharge upon receiving a fair and just proportion of his effects but if such compounding is procured or induced by the false orfraudulent representations or conduct ofsuch debtor such payment shall only operate to discharge a like amount of the debt

116135 Medium of compromise of secured debts bonds of federal corporationsThe court having jurisdiction of the estateof a deceased person may on the application of the executor or administrator of the

estate authorize the executor or administrator by order of the judge thereof to compromise any debt owing the estate securedby mortgage on real property or by mortgage on real and personal property and bysuch compromise to accept in lieu thereofbonds issued by the Home Owners LoanCorporation organized pursuant to Act ofCongress of June 13 1933 and the bonds ofthe Federal Farm Mortgage Corporation andthe bonds of any other corporation all thestock of which is owned beneficially by theUnited States either directly or indirectlyor to accept part cash and the balance insuch bonds as the executor or administratorand the court shall deem to be for the bestinterests of the estate and to give a discharge to such debtor upon receiving suchbonds or bonds and cash but if such compromising is procured or induced by falseor fraudulent representations of the debtorsuch payment shall operate only to dischargea like amount of his debt

116140 Right to redeem mortgagedproperty If the deceased left any propertyreal or personal under mortgage and didnot devise or provide for the redemption ofthe same by will the court or judge thereof upon the application of the executor oradministrator or the application of an heiror creditor or other person interested in theestate may order the executor or administrator to redeem such property out of theproceeds of the other personal property ifit appears that such redemption would befor the interest of the estate and not prejudicial to creditors

885

SUPERSEDED


116145 Order for sale where redemption deemed improper If upon such application such redemption is deemed improper orinexpedient the court shall order such property to be sold as is provided in other casesof the sale of real property by ORS 116705to 116830 The conveyance to the purchasershall convey to him all the estate rightand interest which the deceased would havehad in the property had not the same beenmortgaged by him

116150 Citation to mortgagee or payeeapplication of proceeds of sale Ten days before making an order for the application ofthe proceeds of such sale the mortgagee orother person to whom the debt which is secured by such mortgage is payable shall becited to appear and show the amount of hisdebt and make his objections if any to thereport of the expenses of the proceeding andsale as claimed by the executor or administrator Thereupon the court shall order thatthe proceeds of the sale be applied first tothe payment of the proper expenses of theproceeding and sale and secondly to thesatisfaction of such debt and the residue ifany in due course of administration

116155 Inapplicability of sections tocertain mortgages and liens ORS 116140116145 and 116150 do not include a mortgage which has been foreclosed or uponwhich a suit has been commenced for foreclosure before the application for the orderof redemption or sale is made nor to anyother lien arising upon judgment or decreegiven against the deceased in his lifetime

116160 Satisfaction of debt not due If

the debt secured by the mortgage mentionedin ORS 116140 is not due at the time of the

making of the order for redemption or application of the proceeds of sale the party towhom it is payable is entitled to receive insatisfaction thereof such sum as may be ascertained to be equal to the present valuethereof

116165 Power to redeem property soldat foreclosure or execution sale Any executor or administrator of an estate of any decedent may redeem for the benefit of theestate any real estate belonging to the estate which may at any time be sold at public auction either by decree of court on foreclosure of mortgage or upon judgment inthe same manner and upon the same terms

886

that property may be redeemed by anydebtor

116170 Authority of executor or administrator to continue a business In allcases where a person dies while engaged inany trade or business other than a trade orbusiness in which the decedent was engagedas a partner the court having jurisdictionof the administration of the estate of suchdecedent may in its discretion authorizethe executor or administrator of the estateto continue and carry on such trade or business for a period not to exceed 12 monthsafter the death of the decedent The courtshall require such executor or administratorto file such additional undertaking conditioned upon his faithfully carrying out histrust and all orders of the court as thecourt shall direct and approve Nothing inthis section shall affect the provisions ofORS 709240 relating to a trust companyacting as executor or administrator

116175 Debts incurred in operating abusiness In the conduct of a trade or business the executor or administrator shallkeep full and accurate account of all receipts and expenditures and also of all accounts payable and receivable and shallmake monthly reports thereof to the courtAll debts contracted by the executor or administrator including moneys borrowedshall constitute expenses of administration

116180 Discontinuance of business or

modification of authority 1 Any personinterested in the estate may at any timepetition the court for an order requiring theexecutor or administrator to discontinue and

wind up the trade or business or for an ordermodifying or limiting authority theretoforeconferred The petition shall be served uponthe executor or administrator or his attorney of record in the manner provided bylaw for the service of pleadings and shall beheard by the court upon 10 days notice tosuch executor or administrator At that time

the court shall hear the testimony of therespective parties and may in its discretionrequire an audit or such additional information as may be necessary for a complete understanding of the issues and shall thenenter such order as may be to the best interests of the estate

2 Whether or not a petition thereforhas been filed the court may at any timeorder the discontinuance and winding up ofthe business

is

is

SUPERSEDED

J

r

C7


116185 Repealed by 1961 c417 2

116186 Delivery of personal propertyand payment of debts to foreign administrators and executors publication of notice effect of payment or delivery 1 Foreignadministrators and executors may receivepayment of and discharge debts owing byresidents of this state and accept deliveryof and give acquittances for personal property in the possession of residents of thisstate upon complying with the provisions ofthis section

2 If the indebtedness is in an amountor the personal property is of a value inexcess of 500 such payment or deliveryshall not be made until 90 days after firstpublication of notice as provided in subsection 3 of this section If such notice is notrequired such payment or delivery shall notbe made until 90 days after the date ofdeath of the deceased owner

3 a If the indebtedness is in anamount or the personal property is of avalue in excess of 500 the foreign administrator or executor shall publish a noticeonce each week for four successive weeksin a newspaper of general circulation in thecounty in which the debtor or person inpossession of personal property resides or isengaged in business describing the debt orpersonal property identifying the debtor orperson in possession thereof showing his residence or business address stating that after90 days from the date of first publicationpayment or delivery of such indebtedness orpersonal property to such foreign administrator or executor will be requested anddirecting any person objecting to such payment or delivery to give notice in writing tothe debtor or person in possession of personal property that he objects thereto Suchnotice shall be directed to all persons interested as creditors or beneficiaries in theestate of the decedent

116190

notice is not required the debtor or personin possession of personal property may paysuch debt or deliver such personal propertyto the foreign administrator or executor ifprior to such payment or delivery he shallnot have received written notice of objectionsthereto and he shall have received

a Proof of publication of notice asprovided in ORS 193070 if such notice berequired by subsection 3 of this section

b An affidavit of the executor or administrator averring to the best of his knowledge and belief that no other letters on saidestate are then outstanding that no petitionfor such letters is then pending in this statethat no ancillary proceedings will be broughtand that there are no unpaid creditors of thedecedent or the estate in this state who

have not consented to such payment or delivery

c Copy of letters testamentary or ofadministration certified by the clerk of thecourt out of which such letters issued The

certificate of the clerk shall be dated no

more than 30 days prior to the date of delivery thereof to the debtor or person in possession of personal property and shall declare that at the date thereof the persontherein named is the duly appointed qualified and acting executor or administrator ofthe estate of the decedent and

d Release in writing of such indebtedness or personal property given by the StateTreasurer in respect to inheritance taxes

5 Payment or delivery of personalproperty to a foreign administrator or executor as provided in this section shall constitute an acquittance and discharge of thedebtor or person in possession of personalproperty to the extent thereof1961 c417 1

116190 Recording of copies of recordsIn other counties wherein real property issituated 1 If any real property belonging

b If the person indebted to or holdingpersonal property of the decedent maintainsbranch offices the publication shall be inthe county where it is located and the notices and consent by claimants shall be givento the office or branch at which the accountevidencing the indebtedness or credit is carried or at which the personal property is located or controlled

4 Upon expiration of 90 days after thefirst publication of such notice if requiredor upon the expiration of 90 days after thedate of death of the deceased owner if such

E

to an estate of a deceased person is situatedin any county other than that in which theestate is being administered the administrator or executor of the estate shall causeto be recorded in the deed records of each

of such counties a certified copy of the willif any petition for appointment of executoror administrator order appointing executoror administrator and order determining heirship if any

2 If any such real property has beensold during the administration of such estate the administrator or executor shall also

187

SUPERSEDED


cause to be recorded in the deed records ofthe county where such real property is situated a certified copy of so much of the proceedings in relation to the administration ofsuch estate as will be necessary to show theauthority of the executor or administratorto sell such property

3 If any real property situated in anycounty other than that in which the estateis being administered has not been sold during the administration of the estate the administrator shall cause to be recorded in thedeed records of such county a certified copyof the order approving the final account ofan order decreeing that all expenses of administration all taxes and all other knownlawful claims against the estate have beenfully satisfied and discharged and the administration so far as it relates to the presentation and allowance of claims has beencompleted

116195 Discharge of representativeconditioned on compliance with ORS 116190filing order of discharge No order shall bemade discharging an executor or adminstrator until it appears to the satisfaction of thecourt that the provisions of ORS 116190have been complied with fully and when theestate is closed a certified copy of the orderof discharge and of closing the estate shallbe filed by the executor and administrator inevery county of the state where any realproperty belonging to the estate of the deceased person is situated


DISCOVERY OF ASSETS

116305 Proceedings in case of refusalto disclose property Whenever it appearsprobable from an affidavit of an executoradministrator heir or other person interested in the estate that any person has concealed or in any way secreted or disposedof any property of the estate or any writingrelating or pertaining thereto or that anyperson has knowledge of any such propertyor writing being so concealed secreted ordisposed of and refuses to disclose the sameto the executor or administrator the courtor judge thereof upon the application of theexecutor or administrator may cite suchperson to appear and answer under oathconcerning the matter charged

116310 Mode of examination Such examination may be oral or upon written interrogatories filed by the applicant but in

888

either case the answers of the person citedshall be reduced to writing and subscribedby him and filed If such person is not in thecounty where administration is granted theproceeding may be either before the courtor judge thereof of such county or beforethe court or judge thereof of the countywhere such person resides or may be foundIn the latter case a certified copy of thewritten interrogatories if any and the examination or other proceeding thereon orconnected therewith shall be filed with theclerk of the court where administration isgranted

116315 Proceedings in case such personrefuses to appear or answer If the personcited refuses to appear or to answer suchinterrogatories as may be allowed to be putto him touching the matter charged he maybe punished for a contempt or may at oncebe committed by the warrant of the judgeto the county jail there to remain in closecustody until he submits to the order of thecourt or judge

116320 Person intrusted with propertyof estate compelled to account The court orjudge thereof upon the application of theexecutor or administrator may cite any person who has been intrusted with any of theproperty of the deceased to appear and answer concerning the same when it appearsprobable that such person refuses or neglectsto render to the executor or administratora true account thereof The application shallbe made and the proceeding conducted in themanner prescribed in ORS 116305 to 116315

116325 Damages for embezzlementalienation or conversion of property beforeadministration granted If any person before administration is granted embezzlesaliens or in any way converts to his own useany of the property of a deceased person heis liable to the executor or administrator indouble the amount of damages which maybe assessed therefor

116330 Avoidance of acts of decedentIn fraud of creditors Whenever the assetsof the estate are insufficient to satisfy thefuneral charges expenses of administrationand the claims against the estate and thedeceased in his lifetime made or suffered anyconveyance transfer or sale of any propertyor any right or interest therein with intentto delay hinder or defraud creditors orwhen such conveyance transfer or sale was

SUPERSEDED


so made or suffered that the same is voidin law as against creditors or when thedeceased in his lifetime suffered consentedor procured any judgment or decree to begiven against him with such intent or insuch manner as to be likewise void suchexecutor or administrator shall make application by petition to the probate court orjudge thereof for leave to commence andprosecute to final judgment or decree thenecessary and proper actions suits or proceedings to have such conveyance transfersale judgment or decree declared void andthe property affected thereby dischargedfrom the effect thereof

116335 Order allowing proceedingstherefor If upon the application it appearsto such court or judge that the assets areinsufficient for the purposes specified inORS 116330 and that it is probable thatthe conveyance transfer judgment or decree was made suffered consented to orprocured with the intent or in the mannerspecified in such section it shall make theorder directing the proceedings to be commenced and prosecuted as to any or all ofthe matters alleged in the petition andnecessary to supply the deficiency in theassets

116425

all debts due the deceased the written evidence thereof the security therefor if anyexists specifying the name of each debtorthe date of each written evidence of debtand security therefor the sum originallypayable the indorsements thereon if anyand their dates and the sum appearing thento be due thereon

116415 Property discovered after filinginventory If after the filing of the inventory property not mentioned therein shallcome to the knowledge or possession of theexecutor or administrator he shall immediately make an inventory thereof and causeit to be appraised in the manner prescribedin ORS 116420 to 116445 and file the samewith the clerk

116420 Appraisement appointment ofappraisers Before the inventory is filed theproperty therein described shall be appraisedat its true cash value by three disinterestedand competent persons who shall be appointed by the court provided that thecourt may in its discretion appoint but oneappraiser if the probable value of the estatedoes not exceed 10000 exclusive of cashand securities of the United States Government If any part of the property is in acounty other than that wherein the administration is granted the appraiser or appraisers thereof may be appointed by such courtor the court of the county in which theproperty is located In the latter case a certified copy of the order of appointment shallbe filed with the inventoryAmended by 1957c364 1

116425 Compensation of appraisers

116545 to 116400 Reserved for expansion 1 Each appraiser is entitled to receivecompensation not in excess of the following

116340 Disposition of property recovered The property recovered by means ofany proceeding pursuant to ORS 116330and 116335 is to be sold and appropriatedto supply the deficiency mentioned in ORS116330 in the same manner as other likeproperty but the right to or interest in thesurplus if any remains as if such proceeding had not been allowed or commenced

INVENTORY AND APPRAISAL

116405 Inventory of estate when andhow made An executor or administratorshall within one month from the date of hisappointment or if necessary such furthertime as the court or judge thereof may allowmake and file with the clerk an inventoryverified by his own oath of all the real andpersonal property of the deceased whichshall come to his possession or knowledge

116410 Money of deceased and debtsdue deceased The inventory shall containan account of all money belonging to thedeceased or a statement that none has cometo the possession or knowledge of the executor or administrator also a statement of

I

rates

a For appraising real estate 1 per1000 of appraised value on the first100000 and 50 cents for each1000 thereafter

b For appraising listed securities andinsurance 25 cents per 1000 of appraisedvalue

c For appraising unlisted overthecounter securities other than those mentioned in paragraph d 1 per 1000 of appraised value

d For appraising an interest in a partnership or stock in a closed corporation 1per 1000 of appraised value on the first100000 and 50 cents for each1000 thereafter

t89

SUPERSEDED


e For appraising cash nothingf For appraising other property 1

per 1000 of appraised value on the first100000 and 50 cents for each1000 thereafter The rates provided for in this paragraph shall include the appraisal of mortgages on real and personal tangible property conditional sales contracts thereon andcontracts receivable for sale thereof and allother secured obligations of similar character but shall not be deemed to include corporate bonds or debentures

2 These allowances shall not be increased solely because the estatesinterest inproperty is less than an entire interestThese allowances may be increased uponshowing of an extraordinary amount ofwork necessary to be done and if such ashowing is made the appraisers shall be paidfor such extraordinary work at a fair compensation to be fixed by the judge

3 In addition to compensation providedin this section the appraisers shall be allowed their actual and necessary travelingexpenses

116430 Oath of appraisers Beforemaking the appraisement the appraisersshall each file with the inventory an affidavit to the effect that he will honestly andimpartially appraise the property whichshall be exhibited to him according to thebest of his knowledge and ability

116435 Each article to be separatelyappraised appraisement of money and debtsThe appraisers shall appraise each article ofproperty separately and set down the valuethereof in dollars and cents opposite theentry of the article in the inventory Moneyof whatever nature that is a legal tender isto be appraised at its nominal value butdebts of all descriptions or kinds are to beappraised at that sum which in the judgment of the appraisers may be realized fromthem by due process of law When the appraisement is completed the inventory shallbe signed by the appraisers

116440 Debt due from person named asexecutor inclusion in inventory liability fordebt The naming of any one as executor ina will shall not operate to discharge suchexecutor from any claim which the testatorhad against him but the claim shall be included in the inventory If the person sonamed accepts the administration of theestate he shall be liable for such claim as

for so much money in his hands at the timethe claim became due and payable otherwisehe is liable for such claim as any otherdebtor of the deceased

116445 Discharge by will or bequest ofa claim of decedent The discharge or bequest in a will of any claim of the testatoragainst a person named as executor thereinor against any other person shall as againstthe creditors of the deceased be invalidSuch claim shall be included in the inventory and for all the purposes of administration is to be deemed and treated as a specificlegacy of that amount

116450 Inventory and appraisal of copartnership property duties of survivingpartner Within 30 days after the death of apartner the surviving partner shall file averified inventory of the assets of the partnership in the probate court in which letterstestamentary or of administration are issuedon the estate of the decedent or if no letters are issued in the probate court of thecounty of which the decedent was a residentat the time of his death The inventory shallstate the value of the assets as shown bythe books of the partnership and a list of theliabilities of the partnership If letters testamentary or of administration have issued onthe estate of the decedent the survivingpartner shall cause the assets of the partnership to be appraised in like manner asthe individual property of a deceased person which appraisal shall include the valueof the assets of the partnership and a list ofthe liabilities The appraisers appointed bythe court to appraise the separate propertyof the deceased partner shall appraise thepartnership property and the surviving partner shall file the inventory and appraisalwith the court in which the estate of the de

ceased partner is being administered

116455 Surviving partner may remainin possession of partnership estate accounting by partner The surviving partner maycontinue in possession of the partnershipestate pay its debts and settle its businessand shall account to the executor or the ad

ministrator of the decedent and shall payover such balances as may from time totime be payable to him Upon the verifiedpetition of the executor or administrator oron its own motion the probate court whenever it appears necessary may order thesurviving partner to account to said court

890

SUPERSEDED

ADMINISTRATION OFESTATES 116520

116460 Security of surviving partnerfor faithful settlement of affairs If the surviving partner commits waste or if it appears to the probate court that it is for thebest interest of the estate of the decedent

such court may order the surviving partnerto give security for the faithful settlement ofthe partnership affairs and the payment tothe executor or administrator of any amountdue the estate

116465 Failure of partner to file inventory appraisal account or bond contemptappointment of receiver If the survivingpartner fails or refuses to file the inventorylist of liabilities or appraisal or if it appearsproper to order the surviving partner to account to the probate court or to file a bondthe court shall order a citation to issue re

quiring the surviving partner to appear andshow cause why he has not filed an inventory list of liabilities or appraisal or why heshould not account to the court or file abond The citation shall be served not less

than 10 days before the return day designated therein If the surviving partner neglects or refuses to file an inventory list ofliabilities or appraisal or fails to account tothe court or to file a bond after he has beendirected to do so he may be punished for acontempt or the court may commit him tojail until he complies with the order of thecourt Where the surviving partner fails tofile a bond after being ordered to do so bythe court the court may also appoint a receiver of the partnership estate with likepowers and duties of receivers in equity andorder the costs and expenses of the proceedings to be paid out of the partnership estateor out of the estate of the decedent or bythe surviving partner personally or partlyby each of the parties

six months from the date of such notice tothe executor or the administrator at a placewithin the county therein specified Beforethe expiration of such six months a copy ofthe notice as published with the properproof of publication shall be filed with theclerk

116510 Time for presentation ofclaims effect of nonpresentation of claim intime A claim not presented within sixmonths after the first publication of thenotice is not barred but it cannot be paiduntil the claims presented within that periodhave been satisfied If a claim is not thendue or if it is contingent it shall nevertheless be presented as any other claim Untilthe final account is filed a claim againstthe estate not barred by the statute of limitations may be presented allowed and paidout of any assets then in the hands of theexecutor or administrator not otherwise appropriated or liableAmended by 1957 c410 1

116515 Verification of claims production of written evidence of claim Everyclaim presented to the executor or administrator shall be verified by the affidavit ofthe claimant or some one on his behalf whohas personal knowledge of the fact to theeffect that the amount claimed is justly duethat no payments have been made thereonexcept as stated and that there is no justcounterclaim to the same to the knowledgeof the affiant When it appears or is allegedthat there is any written evidence of suchclaim the executor or administrator maydemand that such evidence be produced or itsnonproduction accounted for

116520 Indicating approval or rejectionof claims When the claim is presented to theexecutor or administrator if he is satisfied


CLAIMS AGAINST THE ESTATE

116505 Publication of notice by executoror administrator Every executor or administrator shall immediately after his appointment publish a notice thereof in some newspaper published in the county if there isone or otherwise in such paper as may bedesignated by the court or judge thereof asoften as once a week for four successiveweeks and oftener if the court or judge shallso direct Such notice shall require all persons having claims against the estate to present them with the proper vouchers within

a

that it is just he shall indorse upon it thewords Examined and allowed with thedate thereof and officially subscribe suchnotation and pay such claim in due courseof administration If he is not so satisfiedhe shall indorse thereon the words Exam

ined and rejected with the date thereofofficially subscribe such notation and filesuch rejected claim with the clerk of thecourt and serve notice thereof in writingupon the claimant or his attorney in personor by mail If the executor or administratorneither allows nor rejects and files suchclaim with the clerk of the court within 60days after the receipt thereof by him itshall be deemed rejected by him

X91

SUPERSEDED


116525 Contesting rejected claimselection to have matter tried as action orsuit in circuit court Any claimant may present any rejected claim to the probate courtfor allowance within 30 days after serviceof notice upon him or his attorney of suchrejection or within 30 days after the claimis deemed to have been rejected under theprovisions of ORS 116520 Any claimant ofsuch rejected claim or his attorney or theexecutor or administrator or his attorneyupon notice of summary hearing being givenmay elect to have the matter tried as anaction or suit as the case may be in and bythe circuit court by serving on the opposingparty or his attorney and filing with theclerk of the court a notice in writing signedby himself or his attorney to the effect thathe demands such trial Such notice shall beserved and filed at least three days prior tothe time set for the summary hearing by thenotice thereofAmended by 1957c410 2

116530 Summary determination If

neither the claimant or his attorney nor theexecutor or administrator or his attorneymakes a demand pursuant to ORS 116525the probate court has jurisdiction to hearand determine any such rejected claim in asummary manner and forthwith shall causea concise entry of the order of allowance orrejection thereof to be made in the probatejournalAmended by 1957c410 3

116535 Appeal from summary order ofcounty court If such order is made by thecounty court it has the force and effect ofa decree from which an appeal to the circuitcourt may be taken as in ordinary mattersin probate

116540 Notice demanding trial aftersummary determination If either party isaggrieved by an order issued pursuant toORS 116530 he may have the matter triedas an action or suit as the case may be inand by the circuit court by serving on theopposing party or his attorney and filingwith the clerk of the court a notice in writing signed by himself or his attorney to theeffect that he demands such trial Suchnotice shall be served and filed within 30days from and after the making of theentry of the order of allowance or rejectionupon summary hearing and if the notice isgiven by the executor or administrator or

his attorney it shall recite the provisionsof ORS 116545 or the effect thereofAmended by 1957c410 4

116545 Time within which action orsuit must be filed in circuit court trial denovo Whenever a trial in the circuit courtis demanded by either party under ORS116525 or 116540 the claimant shall within60 days after the date of the service of suchdemand file an original action or suit onsuch claim in the circuit court and unlesssuch action or suit is so filed the claim shallthereafter be of no validity and shall bebarred Every such matter for trial in thecircuit court shall be unless the partiesotherwise agree and the court approvestried anew and fully as an action or suitwhichever is its natureAmended by 1957c410 5

116550 Appeal to Supreme Court Anappeal shall lie to the Supreme Court fromthe judgment decree or other determinativeorder of the circuit court made in such matter as in the ordinary case

116555 Statute of limitations shall notbe waived quantum of proof to establishclaims No claim which is barred by thestatute of limitations shall be allowed by anyexecutor administrator or court No otherclaim which has been rejected by the executor or administrator shall be allowed byany court except upon some competent satisfactory evidence other than the testimonyof the claimant

116560 Costs and disbursements decrees for payment of money how enforcedCosts may be awarded in favor of one partyagainst another to be paid personally or outof the estate or fund in any proceedingscontested adversely but such costs cannotexceed those allowed in the trial of a civilaction in the court trying the contest Witness fees and other disbursements similarto those allowed on the trial of a civil actionmay also be allowed to be paid in like manner Orders or decrees for the payment ofmoney may be enforced by execution orotherwise in the same manner as orders ordecrees for the payment of money in thecircuit court

116565 Effect of judgment or decreeagainst executor or administrator The effect of a judgment or decree against an executor or administrator on account of aclaim against the estate of his testator or

is

892

SUPERSEDED

ADIIIINISTRATION OF ESTATES

intestate is only to establish the claim asif it had been allowed by him so as to require it to be satisfied in due course of administration unless it appears that the complaint alleged assets in his hands applicableto the satisfaction of such claim and thatsuch allegation was admitted or found to betrue in which case the judgment or decreemay be enforced against such executor oradministrator personally

116570 Proof of judgment renderedagainst deceased in his lifetime executionnot prevented A claim established by judgment or decree against the deceased in hislifetime need not be verified by affidavitbut it is sufficient to present a certified copyof the judgment docket thereof to the executor or administrator for allowance or re

jection as in other cases This section doesnot prevent an execution from being issuedupon such judgment or decree

116575 Reference of claim 1 If theexecutor or administrator doubts the validityof any claim presented to him he may agreein writing with the claimant that an orderof reference be made by the court or judgethereof concerning the same Upon the filingof such agreement the court or judge shallmake the order accordingly

2 The referee shall proceed to hearand determine the matter and report thereonto the court that made the order of reference in the same manner and with likeeffect as if the order were made in an action

or suit upon such claim

116580 Claim of executor or administrator If the executor or administrator ishimself a creditor of the decedent his claimduly verified may be presented to the courtor judge thereof for allowance or rejectionbut the allowance of such claim by the courtor judge does not conclude a creditor heiror other person interested in the estate inany action suit or proceeding between theexecutor or administrator and such creditorheir or other person

116595

if the same is controverted or objected to byany person interested in the estate the rightof the executor or administrator to have theallowance claimed shall be tried and deter

mined by the court If the claim is not presented to the court or judge as provided inORS 116580 before it is barred by the statute of limitations such claim cannot beallowed retained or recovered

116590 Exemption of homestead whenit is not devised When the owner of anyhomestead dies not having lawfully devisedthe same such homestead descends free ofall judgments and claims against the deceased owner or his homestead estate except mortgages executed thereon and laborers and mechanics liens to the personand in the manner provided by law Suchexemption shall not extend to any personother than a child or grandchild widow orwidower and father or mother of the deceased owner Such homestead shall be sub

ject to and charged with the expenses of hislast sickness and for his funeral the cost andcharges of administration and the claim ofthe State Public Welfare Commission forthe net amount of public assistance as defined in ORS 411010 which was paid to oron behalf of the deceased and the recoveryof which from the estate of a deceased re

cipient is authorized by statute other thanthis section Nothing in this section shallprevent or limit the court or judge fromsetting apart for the widow widower orminor children of the deceased the home

stead as provided in ORS 116010Amended by 1955 c444 1

116595 Exemption of homestead whenit is devised When any homestead is devisedby the will of the owner thereof the deviseetakes the same free of all judgments andclaims against the testator of his homesteadestate except mortgages executed thereonand laborers and mechanics liens Suchexemption shall not extend to any deviseeother than a child or grandchild widow or

116585 Determination of claim of executor or administrator on settlement of final

account If the court or judge thereof rejectsthe claim of the executor or administratoreither in whole or in part or in case theclaim is not presented for allowance as provided in ORS 116580 the executor or administrator may retain the amount thereof untilthe final settlement of his accounts when

E

widower and father or mother of the testator Such homestead shall be subject toand charged with the expenses of his lastsickness and of his funeral the costs andcharges of probate and the claim of theState Public Welfare Commission for the net

amount of public assistance as defined inORS 411010 which was paid to or on behalf of the deceased and the recovery of

93

SUPERSEDED


which from the estate of a deceased recipient is authorized by statute other than thissection Nothing in this section shall preventor limit the court or judge from setting apartfor the widow widower or minor childrenof the deceased the homestead as providedin ORS 116010Amended by 1955 c444 2


SALE OR LEASE OF PROPERTY

116705 Application for order for salecitation to heirs No sale of the property ofan estate is valid unless made by order of thecourt or judge thereof or as provided in ORS116825 and 116830 The application for anorder of sale shall be by the petition of theexecutor or administrator and in case of realproperty a citation to the heirs and othersinterested in such property

116710 Application to sell personaltyterms of sale Upon the filing of the inventory or at the next term of the court theexecutor or administrator may make an application to sell the personal property of theestate for the purpose of paying the funeralcharges expenses of administration theclaims if any against the estate and for thepurposes of distribution and the court orjudge shall grant such order if in his judgment it is for the best interest of the estateand shall direct and prescribe the terms ofsale upon which the property shall be soldwhether for cash or on credit

that the executor or administrator may sellall the personal property of the estate or anyarticle thereof at private sale with or without notice If any articles of personal property have been specially bequeathed theyare to be exempt from the operation of theorder of sale so long as any property ofthe estate not specially devised or bequeathed remains unsold or appropriated tothe purposes specified in ORS 116710Amended by 1955c149 1

116725 Effect of escheat of personaltyon power to order sale The fact that anypersonal property of a decedent may haveescheated to the state shall not oust the proper probate court of jurisdiction to order asale thereof at any time and the proceedsof such sale as well as any money in thehands of the administrator may upon orderof the court at any time after the expirationof six months from the publication of noticeof the appointment of the administrator beapplied as in the ordinary course of administration in payment of claims against theestate of the decedent provided that application therefor specifying the claims to bepaid shall be first made in writing by theadministrator to the probate court and acopy of such application shall be served uponthe clerk of the State Land Board at least20 days prior to the making of an order forsuch payments

116730 Real property when sold specific devises When the proceeds of the sale

116715 Time manner and amount ofsale of personalty return Thereafter theexecutor or administrator shall sell such personal property from time to time for thepurposes specified in ORS 116710 and asoften and as much thereof as may be necessary The sale shall be conducted in the samemanner as a sale of personal property onexecution except as provided in ORS

116720 116765 116825 or 116830 However the executor or administrator shallwithin 15 days after the completion of thesale of the property described in the order ofsale make a return of such sale to the courtbut such sale need not be confirmed

116720 Personalty may be sold at private sale special bequests exempt If uponthe application for an order of sale or upona subsequent application for that purposeit appears to the court or judge that it wouldbe for the interest of the estate it may order

8

of personal property and the other funds ofthe estate have been exhausted and thecharges expenses and claims specified inORS 116710 have not all been satisfied theexecutor or administrator shall sell the realproperty of the estate or so much thereof asmay be necessary for that purpose or whenit appears to the satisfaction of the courtthat it would be for the best interest of theheirs devisees or legatees that all or a partof the real property of the estate be sold forthe purpose of distribution the executor oradministrator shall sell the real property ofthe estate or so much thereof as may be appropriate for that purpose provided thatwhenever it appears to the satisfaction ofthe court that it is for the best interest ofthe estate or of the heirs devisees or legatees thereof that the real property or anypart thereof should be sold the court orjudge thereof may order that the real property or any part thereof be sold for any purpose without reference to whether or not the

94

is

SUPERSEDED

ADMNNTRATION OF ESTATES

personal property has been sold If any ofsuch real property has been specially devised it is exempt from the operation of theorder of sale in the same manner as personalproperty specially bequeathed

116735 Sale of realty to obviate resortto specific bequest or legacy When the testator bequeaths any specific article of personal property or gives any legacy by willand there is not sufficient personal propertybesides such specific article or the value ofsuch legacy to pay the funeral charges expenses of administration and claims againstthe estate the executor or administratorshall obtain an order to sell the real property sufficient to make up the deficiency

116740 Contents of petition to sellrealty The petition for the order of sale ofreal property shall state the amount of salesof personal property the charges expensesand claims still unsatisfied so far as canbe ascertained a description of the realproperty of the estate the conditions andprobable value of the different portions orlots thereof the amount and nature of anyHens thereon the names ages and residencesof the devisees if any and of the heirs ofthe deceased so far as known and if it isdesired to sell the real property or any partthereof as provided in ORS 116730 the petition shall set out the reasons therefor

116745 Citation of heirs and devisees

time for appearance Upon the filing of a petition to sell real property or for authorityto execute a surface lease of real propertyfor a term exceeding five years or forauthority to execute a lease for the purposesof exploring or prospecting for and extracting removing and disposing of oil gas otherhydrocarbons and all other minerals or substances similar or dissimilar that may beproduced from a well drilled pursuant tosuch lease a citation shall issue to the devisees and heirs therein mentioned and toall other devisees and heirs unknown ifthere are any to appear and show cause ifany exists why the order of sale or orderauthorizing execution of the proposed leaseshould not be made as prayed for in the petition within the following times

1 If served within the county whereinthe proceeding is pending within 10 daysfrom the date of service

116750 Manner of service of citationeffect of personal appearance 1 If an heiror devisee is known and resident within thisstate such citation shall be served and returned as a summons If an heir or deviseeis unknown or nonresident the citation maybe served by publication in a newspaper published in the county chosen by the administrator or executor not less than fourweeks or for such further time as the courtor judge may prescribe When service of thecitation is made by publication there shallbe published with it a brief description ofthe property described in the petition

2 The appointment of a guardian adlitem for such of the unknown heirs as maybe minors shall not be necessary

3 If an heir or devisee is not withinthe state the executor or administrator mayas an equivalent of service by publicationand in lieu thereof cause the citation personally to be served on the heir or devisee outside the state Such personal service of citation outside the state may be made by anycompetent person over the age of 21 yearsand not a party to the proceedings andproof thereof made by his affidavit Theaffidavit shall state the time and place ofservice that he is a competent person thathe is over the age of 21 years that he is nota party to the proceedings and that the person firm or corporation so served is the identical person firm or corporation named as heiror devisee in the citation Such affidavit maybe made and certified before a notary publicor other official authorized to administeroaths and acting as such by authority of theUnited States or any state or territory of theUnited States or District of Columbia andhis official seal if he has one shall be affixed to the affidavit The signature of suchnotary or other official when so attested bythe affixing of his official seal if he has oneshall be prima facie evidence of his authorityto take and certify such affidavit

2 If served personally in any other 4 In any case when an heir or devisee895

116750

county of this state within 20 days from thedate of service

3 If served by publication within 28days from the date of the first publication

4 If served personally outside thestate as provided in subsection 3 of ORS116750 within four weeks from the dateof service if served within the United Statesand within six weeks from the date of serviceif served outside the United StatesAmended by 1963c417 6

SUPERSEDED


appears in such proceedings personally or ifa minor by a general guardian duly andlegally appointed service of citation shallnot be necessary

116755 Order to sell undertaldng ofexecutor or administrator 1 If upon thehearing the court finds that it is necessarythat the real property or any portion thereof be sold it shall make the order accordingly and prescribe the terms thereofwhether of cash or credit or both If thecourt finds that such property cannot bedivided without probable injury and loss tothe estate it may order that it or any specific lot or portion thereof be sold whollywhether otherwise necessary or not

2 Unless it appears to the court thatthe amount of the undertaking previouslygiven by the executor or administrator isequal to the amount required by law plusthe probable amount to be realized on thesale of real property ordered to be sold underthis section where the undertaking is

signed by a surety company duly qualified totransact business in Oregon or plus doublesuch amount when signed by others than asurety company the court must require suchexecutor or administrator to give an additional undertaking with one or more sufficient sureties in such sum as it may fix tobe void upon the condition that such executor or administrator accounts for and dis

poses of the proceeds of such sale accordingto law Before proceeding to sell any realproperty under any such order of sale theexecutor or administrator must file with the

clerk of the probate court any additional undertaking so required of him duly approvedby the judge thereof provided that whenby the terms of his will a testator expresslydeclares that no bond is required of his executor for the faithful performance of hisduties as such executor no undertaking shallbe required under the provisions of this section

116760 How sale is made security forpurchase price 1 Upon the order of salebeing made the executor or administratorshall sell the property therein specified uponthe terms therein prescribed and in the manner otherwise provided in this section Thesale shall be made in the same manner ifsold at public auction as like property issold on execution or if it appears to thebest interest of the estate the court mayorder the property to be sold on the prem

ises or if upon application for an order ofsale or upon a subsequent application forthe purpose it appears to the court to thebest interest of the estate the court may byorder authorize the executor or administra

tor to sell all the real property of the estateor any part thereof at private sale

2 Before proceeding to sell such realproperty at private sale the executor or administrator shall publish a notice particularly describing the property to be sold oncea week for four successive weeks or fourpublishings in all in a newspaper of thecounty where the property to be sold is situated if there is one or if there is none in anewspaper published nearest such propertystating the terms of sale and that from andafter a day certain designated therein whichday shall be not less than one week after thelast of such publishings he will proceed tosell the property described in such noticeAll such private sales shall be reported tothe court be subject to resale and requireconfirmation in the same manner as other

sales of real property made by executors oradministrators

3 When the sale is upon credit theexecutor or administrator shall take the

negotiable note of the purchaser for the purchase money with a mortgage upon theproperty to secure the payment thereof orhe may sell the property on conditional contract of sale provided title is reserved untilthe full purchase price shall have been paidand at least one fourth of the purchase priceis paid at the time of execution of such contract

116765 Sale where all estate or realtydoes not exceed 500 1 When the inventory of any estate shows or it otherwiseappears to the satisfaction of the court thatall the property left by the decedent withinthe jurisdiction of the court does not exceedin value the sum of 500 the court mayorder the property real and personal oreither sold if any sale thereof is necessarywithout citation or other notice to the heirsdevisees legatees or any other parties orupon such notice as the court may direct atpublic or private sale and with or withoutnotice of sale In such cases the notice of the

appointment of the executor or administrator may be given by posting the same inthree public places of the county for fourweeks successively and notice of the filingof the final account may be given in the

896

same manner

r

1u

SUPERSEDED

lu

ADMINISTRATION OF ESTATES 116800

2 When it appears to the satisfactionof the court that it is necessary to sell thereal property or any part thereof and thatthe value of all the real property of theestate exclusive of taxes and other liensthereon does not exceed the sum of 500the court may order the real property orany part thereof sold without citation orother notice to the heirs devisees legateesor any other parties or upon such notice asthe court may direct at public auction orprivate sale

116770 Sale of contract for the purchase of real property If the deceased wasat the time of his death a party to a contract for the purchase of real property hisinterest in the real property by virtue of thecontract may be sold in the same manner asif the contract had been executed in the lifetime of the deceased by a conveyance to himof the property according to the legal effectand terms of such contract

116775 Sale of contract subject to deferred payments undertaldng of purchaserIf there are any payments due or to becomedue on the contract mentioned in ORS116770 to the vendor of the deceased thesale is made subject thereto and before thesale can be confirmed or the contract assigned to the purchaser the purchaser shallexecute an undertaking with one or moresufficient sureties in an amount not lessthan double the value of all the paymentsthen due or to become due for the benefitof whom it may concern to be void upon thecondition that such purchaser will make allsuch payments according to the terms of thecontract and indemnify the executor or administrator or others whom it may concernagainst all damages costs and expenses byreason of any covenant or agreement contained in the contract

116780 Assignment of contract effectThe order of confirmation of such sale shalldirect the executor or administrator to makean assignment of the contract to the purchaser which assignment shall vest in thepurchaser his heirs and assigns all the estate right and interest of the deceased atthe time of his death in such real propertyand give to the purchaser the same righand remedies against the vendor thereof asthe deceased would have had or been entitled

to if living

116785 Acceptance of real property inpart payment of price When an executor oradministrator is authorized by order of courtto sell any real property belonging to theestate of a decedent the executor or administrator may accept other real property inpart payment of the purchase price thereofwhen it appears to the court to be to thebest interest of the estate

116790 Report of proposal to acceptother real property in part payment In allcases where it is proposed to accept otherreal property in part payment of the purchase price the legal description of suchproperty together with the value at whichit is proposed to be taken shall be set forthin the report of the sale required by law tobe made to the court having jurisdiction ofthe estate Upon the filing of such report acitation shall be issued to the same partiesand served in the same manner as is provided by ORS 116745 and 116750 The citationshall include the description of the propertywhich is to be taken in part payment together with the value at which it is proposedto be taken

116795 Hearing on objections to proposal to accept other real property in partpayment In case objections are filed to theproposal to accept other real property inpart payment of the purchase price or thevalue at which it is proposed to be taken orany other matter in connection with theproposal the court shall fix a time for hearing the objections If upon the hearing thecourt is of the opinion that it is to the bestinterest of the estate that such other realproperty be taken in part payment and thatthe value at which it is to be taken is thefair value of such property it may make anorder approving the acceptance of such realproperty or make such other order as isdeemed fair and equitable in the premisesbut no order may be made increasing thevalue at which such premises may be takenin part payment without the consent of allof the parties upon whom service of citationis required by law to be made in the sale ofproperty by executors and administrators

116800 Conveyance to executor or administrator of real property accepted in partpayment In case the acceptance of otherreal property in part payment of the purchase price is approved by the court conveyance of such property shall be to the

897

SUPERSEDED


administrator or executor of the estate asthe case may be and shall be considered asa part of the assets of the estate and shallbe administered and shall descend in thesame manner as if the property was ownedand stood in the name of the deceased atthe time of his death

116805 Return of sale and objectionsthereto Within 10 days after the sale ofreal property the executor or administratorshall make a return of his proceedings concerning the sale and file the same with theclerk of the probate court At any time within 15 days from the filing of such returnany person cited to appear on the applicationfor the order of sale may file his objection tothe confirmation of such sale

116810 Confirmance or vacation of

sale resale Upon the hearing the court shallconfirm the sale and decree that the executor or administrator make a conveyance tothe purchaser unless it appears and thecourt finds that there was substantial irregularity in the sale or that the sum bidfor the property is disproportionate to thevalue thereof and that a sum exceeding suchbid at least 10 percent exclusive of the expenses of a new sale can be obtained therefor In the event there was substantial irregularity in the sale the court shall makean order vacating the sale and directing thatthe property be resold In the event that thecourt finds that such higher bid can be obtained the court may authorize the executoror administrator to resell the property without further order or notice upon the termsof such or another higher bid The orderconfirming the resale shall provide that allprior sales be set aside and upon such finalsale the property or any part thereofauthorized to be resold shall be sold asthough no prior sale had been made In caseno objection is made as provided in ORS116805 to the confirmation of the sale thecourt nevertheless shall examine the proceedings of such sale and if it appears proper shall authorize the property to be resoldas provided in this section in the same manner and with like effect as though objectionhad been filed thereto

116815 Recitals in conveyance effectA conveyance executed by an executor oradministrator shall set forth the date of theorder directing the sale and the book number thereof and page containing the same

and the date of the order confirming the saleand directing the conveyance and the booknumber thereof and page containing thesame and the title of the court making suchorders Such conveyance shall convey all theestate right and interest of the testator orintestate in the premises at the time of hisdeath

116820 Effect of order of confirmationwhen purchase by executor or administratorvoid The order of confirmation of sale isconclusive as to the regularity of the saleand no further All purchases of the property of the estate by an executor or administrator however made whether directly orindirectly are prohibited and if made arevoid except when made in compliance withanother statute or the will of the decedentor a contract or other instrument executedby the decedentAmended by 1953c350 2

116825 Disposition of property underpower in will When a testator makes provision in his will for the sale lease includingwithout limitation a lease granting the rightto explore or prospect for and remove anddispose of oil gas and other hydrocarbonsand all other minerals or substances similaror dissimilar which may be produced from awell drilled pursuant to such lease or otherdisposition of all or any particular portion ofhis estate the same may be sold leased orotherwise disposed of as directed by the executor or administrator with the will annexed without an order of the court therefor but any sale conducted under such powershall be made and a return filed thereon inall respects as if it were made by order ofthe court unless there are special directionsin the will concerning the manner and termsof sale in which case he is governed by suchdirections in such respectsAmended by 1963 c417 11

116830 Proceeding in case propertyappropriated by will insufficient If the provision made by the will or the propertythereby appropriated is insufficient for thepurpose intended the remaining portion ofthe estate may be sold for that purpose according to the provisions of ORS 116705 to116820

116835 Validation of certain sales The

following are the subject of validating Actsapplicable to this chapter

J

898

SUPERSEDED


1 Certain sales of decedentsreal property made prior to 1903 where confirmationof sale was premature

2 Certain sales of decedentspropertymade prior to 1907 under power in will

3 Certain sales of decedentsreal property made prior to 1917 where publication ofthe notice of sale was improper

4 Certain sales by executors or administrators made prior to 1943Subsection 1 enacted as 1903 p133 2 subsection2 enacted as 1907c175 subsection 3 enacted as1917 c 114 2 subsection 4 enacted as 1943 c26

116840 Lease of real property petitionWhenever it shall appear to the satisfactionof the court that it is to the best interest of adecedents estate or the heirs or devisees

thereof to lease all or any part of or anyinterest in the real property of decedent under the possession or control of the executoror administrator or included in the decedents estate the court upon the petitionof the executor administrator heir or devisee of the decedent may by order authorize empower and direct the executor or administrator to lease such real property orany part thereof or any interest therein1963 c417 3

116850 Contents of petition to authorize lease The petition for authority to execute a lease of the real property under thepossession or control of the executor or administrator or included in such decedents

estate or any part thereof or any interesttherein shall state the advantage that mayaccrue to the estate or to the heirs or devisees of decedent from such lease a description of the real property or interest tobe leased the term rental if any royaltyif any and the general conditions of theproposed lease the names ages and residences of the devisees if any and of theheirs of the decedent so far as known to the

petitioner1963 c417 4

116860 Court order hearing If the

court upon the filing of a petition under ORS116850 for the surface leasing of real property for a term not exceeding five years determines that such lease is to the best interest of the estate or the heirs or devisees of

decedent the court shall order the lease tobe made subject to such terms and conditions as the court may consider necessary or

116890

proper The court may in its discretion ordera hearing upon such petition and with orwithout notice

1963 c417 5

116870 Manner of service of citation

Whenever service of citation is required under ORS 116745 or 116860 the same shallbe served in the manner prescribed in ORS116750

1963 c417 7

116880 Terms of lease royalty on mineral leases 1 If upon the hearing heldpursuant to ORS 116745 or 116860 thecourt finds that it is to the interest of thedecedents estate or the heirs or devisees

thereof that the real property or interest described in the petition be leased the courtshall make an order prescribing the termsand conditions of such lease and authorizingand directing the executor or administratorto execute the same

2 An order authorizing the executionof a lease or other instrument for the purpose of exploring or prospecting for and extracting removing and disposing of oil gasand other hydrocarbons and all other minerals or substances similar or dissimilar thatmay be produced from a well drilled by thelessee shall require a minimum of one eighthroyalty and shall set forth the annual rentalif any rental is required to be paid theperiod of the lease which shall be for a primary term of 10 years and so long thereafteras oil gas other hydrocarbons or otherleased substances are produced in payingquantities from the leased premises or landspooled or unitized therewith or mining ordrilling operations are conducted on theleased premises or lands pooled or unitizedtherewith and may authorize such otherterms and conditions as the court may consider necessary or proper including withoutlimitation a provision empowering the lesseeto enter into any agreement authorized byORS chapter 520 with respect to the landcovered by the lease including provisions forpooling or unitization by the lessee1963 c417 8

116890 Effect of lease extending beyond duration of guardianship or estate proceeding No lease executed by a guardianexecutor administrator or other fiduciarypursuant to the terms of ORS 116745116825 116840 to 116900 126436 and126490 and the order of the court including

99

SUPERSEDED


without limitation a lease granting the rightto explore or prospect for and remove anddispose of oil gas and other hydrocarbonsand all other minerals or substances similaror dissimilar which may be produced from awell drilled pursuant to such lease shall bevoid or voidable because the term thereof

may or will extend beyond the duration ofsuch guardianship or estate proceeding1963 c417 9

116900 Application of ORS 116745116825 116840 to 116900 126436 and126490 ORS 116745 116825 116840 to116900 126436 and 126490 apply to guardianships conservatorships and estate pro

ceedings that are now or may hereafter bepending in the courts of this state1963 c417 10


PENALTIES

116990 Penalties Any person who administers any part of the personal estate ofany decedent without proving the will of thedeceased or taking out letters of administration of such personal estate within six calendar months after the death of the decedent

is punishable upon conviction by imprisonment in the county jail not more than oneyear or by a fine not exceeding 500



900

SUPERSEDED

Chapter 117


Settlement and Distribution

PERIODIC ACCOUNTING117010 Semiannual accounts matters to be shown117020 Proceeding if representative neglects to

file an account117030 Order for payment of the expenses

charges and claims

PAYMENT OF CLAIMS AGAINST ESTATE117110 Order of payment of charges and claims117120 Secured debts preference restricted to

proceeds of property117130 Satisfaction of secured debt obtained by

judgment or decree in lifetime of deceased

117140 Estate insufficient to pay claims of oneclass

117150 Funeral charges who may incur paymentof charges

117160 Priority of administrators compensationand expenses

117170 Debts not due or contingent how paid117180 Administratorspersonal liability to cred

itor

DISTRIBUTION TO LEGATEES DEVISEES

117370 Qualification and justification of suretiescosts

117380 Application by representative for refundby distributes

117390 Decree for refund

DETERMINATION OF HEIRSHIP117510 Order for determination of heirship peti

tion appointment of guardian117520 Order for hearing citation to persons in

terested117530 Service and return of citation and petition117540 Trial of issues stay of proceedings and

notice to Governor if deceased died without heirs

117550 Missing heirs or distributees117560 Decree conclusiveness appeal reopening

of proceedings

FINAL ACCOUNT117610 Filing final account hearing thereon117612 Notifying heirs or legatees and devisees of

hearing on final account117615 Notice to State Public Welfare Commission117620 Objections to final account by whom and

when made

117630 Effect of decree upon final account ordersetting forth heirs and legatees

117640 Representative chargeable with the amountof inventory

117650 Representative not to profit or sufferthrough change in values or inability tocollect

117660 Expenses and compensation of representative

117670 When court to reduce compensation provided by will

117680 Compensation of representative117690 Proceedings in case of neglect to file final

account

CROSS REFERENCES

C7

Descent and distribution where parents not married

AND HEIRS

117310 Payment of personalty escheat117315 Distribution of personal property under

Records in probate matters 7240Unclaimed property disposition of 98302 to 98436

1000 to minor who has no guardian117320 When realty is discharged from adminis

117110

tration distribution of surplus117330 Bequests and legacies when liable for

cipient 416310 416320

debts117340 Contribution among legatees devisees and

416310

heirs

117350 Application for distribution of share of

bility for 179620 179740

realty or personalty117361 Notice to interested persons hearing on

cipient 412600

application distribution undertaking of

Indigent injured in motor vehicle accident claims

distributee

117370 Qualification and justification of suretiescosts

117380 Application by representative for refundby distributes

117390 Decree for refund

DETERMINATION OF HEIRSHIP117510 Order for determination of heirship peti

tion appointment of guardian117520 Order for hearing citation to persons in

terested117530 Service and return of citation and petition117540 Trial of issues stay of proceedings and

notice to Governor if deceased died without heirs

117550 Missing heirs or distributees117560 Decree conclusiveness appeal reopening

of proceedings

FINAL ACCOUNT117610 Filing final account hearing thereon117612 Notifying heirs or legatees and devisees of

hearing on final account117615 Notice to State Public Welfare Commission117620 Objections to final account by whom and

when made

117630 Effect of decree upon final account ordersetting forth heirs and legatees

117640 Representative chargeable with the amountof inventory

117650 Representative not to profit or sufferthrough change in values or inability tocollect

117660 Expenses and compensation of representative

117670 When court to reduce compensation provided by will

117680 Compensation of representative117690 Proceedings in case of neglect to file final

account

CROSS REFERENCES

C7

Descent and distribution where parents not married Medical assistance to the aged 413200111231 Oldage assistance claim for against estate of re

Fees in probate proceedings 21310 to 21380 cipient 413200117310

Records in probate matters 7240Unclaimed property disposition of 98302 to 98436 Advancements Ch 111

Community property 108540117110 Distributees liability for debts of decedent Ch 121

Aid from counties claim for against estate of re Escheats Ch 119cipient 416310 416320 Guardianship estate distribution 126530

Blind aid to as a claim against estate of recipient Inheritance tax deducted by representative before416310 distribution of shares to heirs 118240

Coat of care of person at state institution responsi Inheritance tax is lien on property 118230 118280bility for 179620 179740 Liquor licensee disposition of stock of deceased

Disabled aid to as a claim against estate of re 471301 472141cipient 412600 Motor vehicle transfer of interest in 481415

Indigent injured in motor vehicle accident claims 117320against estate 445250

Industrial Accident Fund amount due as a pre Advancements Ch 111Registered land devolution as personalty 94405 toferred claim 656562

Inheritance tax is lien on property 118230 118280 94445901

SUPERSEDED


117330

Distributees liability for debts of decedent Ch 121117340

Contribution from next of kin suit for 121220121250

117361

Bonds and undertakings deposits in lieu thereofCh 22

Representative to report any levy made on distributees share of personalty when petition fordistribution filed 29175

117510

Declaratory judgment available to executor or administrator 28040

Falsely pretending heirship as a crime 165240

117550

Estates of persons presumed dead Ch 120Missing persons conserving property Ch 127

Presumption of death of person not heard fromfor seven years 4136026

117610

Closing agreements concerning income tax liability305150

Discharge of representative conditioned 116195Inheritance tax receipt for necessity of before

discharge 118250 118840Notice when estate does not exceed minimum sum

116765

Personal income taxes must be paid before finalaccount allowed 316530

Personal property taxes 311415Representatives claim determination of 116585

117660

Inheritance tax on excess of bequest to representative over a reasonable compensation 118030

117680

Trust deed trustee of compensation 86795

is

J902

SUPERSEDED

EMrNT AND DISTRIBUTION

PERIODIC ACCOUNTING

117010 Semiannual accounts mattersto be shown An executor or administratorshall within the first 10 days of April and ofOctober of each year until the administration is completed and he is discharged fromhis trust render an account verified by hisoath and file the same with the clerk showing the amount of money received and expended by him from whom received and towhom paid with the proper vouchers forsuch payments the amount of the claimspresented against the estate and allowed ordisallowed and the name of the claimantsof each and any other matter necessary toshow the condition of the affairs thereofHowever if the date of the notice of theappointment of the executor or administrator is within 60 days next preceding thefirst day of April or October the filing ofsuch account shall be omitted until the succeeding April or October

117020 Proceeding if representativeneglects to file an account An executor oradministrator who fails to file an account

as required in ORS 117010 may be requiredby a citation ordered by the court or judgeto appear and do so either upon the application of an heir creditor or other personinterested in the estate or without it If theexecutor or administrator refuses or neglects to appear when cited or to file theaccount as required he may be punished fora contempt or by warrant of the judge becommitted at once to close custody in thejail of the county until he consents to do so

117030 Order for payment of the expenses charges and claims As soon aspracticable after the filing of the first semiannual account and each semiannual accountthereafter the court shall ascertain and determine if the estate is sufficient to satisfythe claims presented and allowed by the executor or administrator within the first sixmonths or any succeeding period of sixmonths thereafter after the date of thenotice of his appointment after paying thefuneral charges and expenses of administration and if so it shall so order and directbut if the estate is insufficient for that purpose it shall ascertain what percent of suchclaims it is sufficient to satisfy and orderand direct accordinglyAmended by 1959 c638 11

117040 to 117100 Deserved for expansion

117130

PAYMENT OF CLAIMS AGAINSTESTATE

117110 Order of payment of chargesand claims The charges and claims againstthe estate which have been presented andallowed or presented and disallowed butsubsequently established by judgment ordecree within the first six months after the

date of the notice of appointment of theexecutor or administrator shall be paid inthe following order and those presented andallowed or established in like manner withineach succeeding period of six months thereafter during the continuance of the administration in the same manner

1 Funeral charges and expenses oflast sickness

2 Taxes of whatever nature due theUnited States

3 Taxes of whatever nature due thestate or any county or other public corporation therein

4 Debts preferred by the laws of theUnited States

5 Debts which at the death of the deceased were a lien upon his property or anyright or interest therein according to thepriority of their several liens

6 Debts due employes of decedent forwages earned within the 90 days immediatelypreceding the death of the decedent

7 The claim of the State Public Welfare Commission for the net amount of public assistance as defined in ORS 411010paid to or for the decedent and the claim ofthe Oregon State Board of Control for careand maintenance of any decedent who wasat a state institution to the extent providedin ORS 179610 to 179770

8 All other claims against the estateAmended by 1953 c441 3 1955 c597 1 1959 c65221

117120 Secured debts preference restricted to proceeds of property The preference given by subsection 5 of ORS 117110only extends to the proceeds of the propertyupon which the lien exists and as to suchproceeds such debt is to be preferred to anyof the classes mentioned in such section

other than the taxes upon such property

117130 Satisfaction of secured debt ob

tained by judgment or decree in lifetime ofdeceased If the debt referred to in ORS117120 has been established by judgment ordecree against the deceased in his lifetimeand if the proceeds of the personal propertyare not sufficient to satisfy it the judgment

903

SUPERSEDED


or decree may in the discretion of the courtor judge thereof be either satisfied fromthe proceeds of the sale of the property uponwhich it is alien by the executor or administrator or enforced by execution againstsuch property Such sale by the executor oradministrator discharges the property fromthe lien of the judgment or decree but thesame attaches to the proceeds thereof afterdeducting therefrom the expenses of sale

117140 Estate insufficient to payclaims of one class Except as specially provided in ORS 117110 to 117140 if the estateis insufficient to pay all the claims andcharges of any one class payable within anyperiod of six months as provided in ORS117110 each creditor of such class shall bepaid in proportion to the amount of hisclaim and not otherwise

117150 Funeral charges who may incur payment of charges The executornamed in the will the surviving spouse ornext of kin are authorized to incur funeralcharges on account of the estate in theburial of the decedent before the administration of the estate is granted The burial ofthe decedent may be in a manner and at acost according to his circumstances and condition in life but no funeral charges exceptthose necessary to give the decedent a plainand decent burial shall be allowed out of theestate where the assets are not sufficient to

satisfy all other claims against it includinglegacies and devises if there are any

117160 Priority of administratorscompensation and expenses The executor or administrator may retain in his hands inpreference to any claim or charge againstthe estate the amount of his own compensation and the necessary expenses of administration

117170 Debts not due or contingenthow paid A debt due and payable is not entitled to preference over one of the sameclass not due if the latter is presented within the same period A debt not due uponbeing presented shall if absolute be satisfied by the payment of such sum as thecourt or judge thereof may prescribe byorder to be equal to its present value and ifcontingent by the payment into court forthe benefit of the creditor subject to thecontingency of a sum to be ascertained inlike manner equal to its present value

117180 Administratorspersonal liabllity to creditor When upon the filing of a

semiannual account an order is made asprovided in ORS 117030 thereafter theexecutor or administrator is personally liableto each creditor included in such order forsuch amount


DISTRIBUTION TO LEGATEESDEVISEES AND HEIRS

117310 Payment of personalty escheat1 If all the charges and claims have beensatisfied upon the first distribution of theassets or as soon thereafter as they may bethe court or judge thereof shall direct thepayment of legacies and the distribution ofthe remaining proceeds of the personal property among the heirs or other persons entitled thereto

2 If upon such distribution any heirdevisee or other person entitled to any ofsuch proceeds fails to apply for his or herportion of the proceeds for a period of threemonths after the making and entering of anorder of distribution by the court havingprobate jurisdiction of the estate such courtmay at any time thereafter upon a showingto that effect being made by the executor oradministrator make an order directing suchexecutor or administrator to pay the portionwhich such person is entitled to receive tothe county treasurer of the county Thecounty treasurer shall keep the same in aspecial fund subject to the further order ofthe court for the payment of it to the personentitled to receive it upon application therefor If no such order is made and the sameis not applied for by the person entitled to receive it for a period of one year from thedate when the county treasurer receives itthe sum shall be paid by the county treasurer to the State Land Board and the sameshall be placed in the escheat fund of thestate The person entitled thereto may thereafter and within 10 years from the date of thepayment thereof to the State Land Boardapply for and recover the same as providedfor the recovery of escheat funds in ORS120130 to 120150

904

117315 Distribution of personal property under1000 to minor who has no guardian Where a minor child residing in thisstate or in any other state is entitled to distribution of any personal property including money of a value of less than 1000from the estate of a decedent and has no

SUPERSEDED

SE7rEMIM AND DISTRIBUTION

guardian of his estate the executor or administrator may with the approval of thecourt pay or transfer such personal property to a parent of the child who is entitledto the custody of the child1955c183 2 1957c662 1

117320 When realty is discharged fromadministration distribution of surplus Thereal property of the deceased is the propertyof those to whom it descends by law or isdevised by will subject to the possession ofthe executor or administrator and to be applied to the satisfaction of claims againstthe estate expenses of administration orsold as by ORS 116705 to 116830 providedbut upon the settlement of the estate andthe termination of the administration thereof so much of such real property as remainsunsold or unappropriated is discharged fromsuch possession and liability without anyorder or decree therefor but if there is anysurplus of the proceeds of the sale of suchreal property or any part thereof the courtor judge thereof shall order and direct adistribution of such surplus among thosewho would have been entitled to the realproperty if it had not been sold

117330 Bequests and legacies whenliable for debts The property real and personal given by the will to any devisee orlegatee is liable for the payment of the funeral charges expenses of administration andclaims against the estate and if there ismore than one such devisee or legatee thenin proportion to the value or amount of theseveral devises or legacies except that specific devises and legacies shall be exemptfrom such liability if such appears to havebeen the intention of the testator and thereis other sufficient property to satisfy suchcharges expenses and claims

117361

notice to creditors and when all uncontestedclaims filed with the executor or administrator have been paid or are sufficiently secured by a mortgage or otherwise but theestate is not in a condition to be finallyclosed and distributed the executor or administrator any heir devisee legatee orbeneficiary of any trust created by will mayapply to the court by petition for an orderauthorizing the distribution of a legacydevise or share of the estate or of anyportion or portions thereof to the heirlegatee or devisee entitled theretoAmended by 1957c363 1

117360 Repealed by 1957c363 2 ORS 117361enacted in lieu of ORS 117360

117361 Notice to interested personshearing on application distribution undertaking of distributee 1 Upon the filingof an application pursuant to ORS 117350the court shall set a date for hearing thereonand shall direct written notice of the application and of the hearing date to be givennot less than 10 days before the date set forsuch hearing to the executor or administrator unless the application was filed bythe executor or the administrator to theState Treasurer unless the inheritance taxliability of the estate has been fully settledto all known heirs devisees and legatees attheir lastknown address and to such otherpersons interested as the court may designate At any time after the filing of the application any person may waive in writingthe notice to which he is entitled under thissection

2 Any person interested in the estateincluding the executor or administrator orany coexecutor or coadministrator may resist the allowance of the petition

3 If th h t ars that

117340 Contribution among legateesdevisees and heirs When any testator in hiswill gives any chattel or real estate to anyperson and the same is taken in executionfor the payment of the testatorsdebts thenall the other legatees devisees and heirsshall refund their proportional part of suchloss to the person from whom the bequestwas taken

117350 Application for distribution ofshare of realty or personalty At any timeafter the filing of the first semiannual account and the expiration of at least sixmonths from the date of first publication of

upon a earmg 1 appethe estate is but little in debt that all inheritance taxes payable to the state havebeen paid or that the State Treasurer hasconsented in writing to the partial distribution in question and that the legacy deviseor share of the estate or a portion thereofmay be distributed without loss to the creditors or injury to the estate or any personinterested therein the court in its discretionmay grant the petition or some part thereofeither with or without bond of the distributee as the court may determine If thedistribution is to be made upon bond theorder of the court shall authorize the distri

105

SUPERSEDED


bution upon the condition that the distributee files with the court within a time specified in the order an undertaking with oneor more sufficient sureties any of whommay be required to justify for the benefitof whom it may concern in such sum as thecourt may designate to be void upon thecondition that such distributee will paywhen required his proportion toward satisfying any claim against the estate includingdetermined and undetermined state and federal tax liability not exceeding the amountof the legacy or portion of the estate soordered to be distributed

4 The distribution and delivery of theassets in accordance with an order of thecourt issued pursuant hereto shall be a fulldischarge of the executor or administratorwith relation to all property embraced insuch order

5 If the application is made by theexecutor or administrator the cost of theproceeding must be paid by the estate butif the executor or administrator is not theapplicant the cost must be paid by the applicant or if there are more than one mustbe apportioned among them1957 c363 3 enacted in lieu of ORS 117360

117370 Qualification and justificationof sureties costs The sureties in the undertaking mentioned in ORS 117361 shall havethe same qualifications as sureties in bailupon arrest and shall justify before thecourt or judge thereof in like manner Thecosts of the proceeding shall be paid by theapplicant

117380 Application by representativefor refund by distributee If after the givingof the undertaking mentioned in ORS

117361 it becomes necessary to require thepayment of all or any part of the sum therein specified to satisfy any claim against theestate the executor or administrator shallapply by petition to the court for a decree tothat effect Notice of the application shall begiven to the party filing the undertaking10 days before the application is madeAmended by 1959 c638 12

117390 Decree for refund If upon thehearing it appears necessary and proper thatthe payment mentioned in ORS 117380 bemade the court shall decree accordinglyspecifying therein the amount to be paidand within what time If the amount is notpaid within the time specified the decreemay be enforced against such party and the

91

sureties in the undertaking by execution inthe same manner as a decree in the circuitcourt


DETERMINATION OF HEIRSHIP

117510 Order for determination of heirship petition appointment of guardian 1In all estates being administered in thisstate where the court in which the estate isbeing administered considers that reasonabledoubt or uncertainty exists on the showingsubmitted as to who are the heirs or personsentitled to distribution in whole or in part ofsuch estate or where any person claiming tobe an heir or distributee shall request suchaction the court shall after six monthsfrom the issuance of letters testamentary orof administration order that the question ofheirship or right to distribution or both bedetermined under the provisions of ORS117510 to 117560

2 Any person claiming to be an heir ofthe deceased or to be entitled to distributionin whole or in part of such estate may asplaintiff thereupon file a petition in thematter of such estate setting forth withreasonable particularity the facts constituting his claim of heirship or interests as distributee Any number of persons claiming to beheirs or distributees or both may join in thepetition which shall be verified as a pleading The date and place of birth of the decedent and the names of his parents ifknown to the plaintiffs shall be stated inthe petition together with such facts as areknown to the plaintiffs respecting his pastresidence and the full name age birthplaceresidence and relationship to the deceasedof each plaintiff shall be given therein andthe petition shall set forth facts sufficient toshow that prima facie each plaintiff is entitled to be declared an heir or distributee ofa share in the estate and the proportionateshare to which he is entitled If no such petition is filed by any heir or claimant within30 days after the order for the determination of heirship or the right to distributionthe administrator or executor may petitionthe court for a hearing and order upon thequestion of heirship and distributive rightsSuch petition shall set forth facts showingthe appointment and qualifications of thepetitioner and such other information within his knowledge as may be pertinent to thequestion involved

6

SUPERSEDED

SlL7TINTAND DISTRIBUTION

3 Any persons who have not joined asplaintiffs in the petition but who appearfrom the facts therein stated to have or

claim rights as heirs or distributees and allpersons not plaintiffs who have filed in thematter of the estate written claims to beheirs or distributees stating therein respectively their names ages residences placesof birth and relationship to the deceased andall other persons known to the plaintiffs orany of them to have or claim rights as heirsor distributees of the estate shall be madedefendants It shall be stated also in thepetition that none of the plaintiffs knowsof any person not made a party therein whois or claims to be an heir or distributee ofsuch estate The name age residence andrelationship to the decedent of each defendant shall be stated in the petition or otherwise it shall be stated therein that the sameis not known to the plaintiffs or any ofthem and that the plaintiffs have not beenable to ascertain the same by reasonablediligence

4 The petition shall also be directedagainst all persons unnamed or unknownhaving or claiming any interest in suchestate as heirs or distributees and they shallbe designated as defendants therein If aminor is a defendant his guardian shall bejoined with him if he has one within thisstate and otherwise a guardian ad litemshall be appointed by the court to appear forsuch minor after the court has acquiredjurisdiction through the service of citationby publication or otherwise against suchminor but no guardian ad litem shall be required for an unknown defendant

5 The petition shall pray the court toascertain and declare the rights of all persons to the estate and all interests thereinand to enter a decree in accordance with thefacts therein shown as to who are the heirsand directing to whom distribution shall bemade

6 Before setting the petition down forhearing the court shall examine it and mayorder that it be made more definite and certain in any respect deemed proper and thatany other persons whom it may deem properbe added as defendants

117520 Order for hearing citation topersons interested Upon the filing and presentation of such petition the court shallmake an order setting the same down forhearing at a time fixed therein not less than90 days nor more than six months from the

117540

date of such order and directing the issuance and the service at least 20 days in advance of the hearing of a citation against allpersons named or designated as defendantsin the petition requiring them to appear before the court at the time set for the hearingand show cause if there is any why thefacts should not be found and the rights ofheirship and distribution to the estate decreed as set forth and prayed for in thepetition of the plaintiffs on file therein It isnot necessary to set forth in the order orcitation the allegations of the petition as tothe facts nor the relief prayed for otherwisethan by such reference thereto The citationshall further require the defendants andall persons named or unnamed having orclaiming any interest in the estate of the decedent to appear before the court at thetime and place specified in the order and fileanswers setting up their respective claimsof heirship ownership or interest in theestate

117530 Service and return of citation

and petition Upon all defendants known andresident within this state such citation shallbe served and returned as a summons and acopy of the petition shall be served therewith Upon all defendants unknown or nonresident such citation may be served by publication in a newspaper published in thecounty and designated by the court not lessthan once each week for six successive weeks

A copy of the order for hearing togetherwith a copy of the petition shall be forthwith after the making of such order deposited in the postoffice directed postpaid toeach known defendant residing outside thisstate at his place of residence unless it appears from the petition that such place ofresidence is neither known to the plaintiffsnor can with reasonable diligence be ascertained by them Proof of service of the citation and of the deposit thereof in the postoffice shall be the same as in case of asummons Upon proof of such service to thesatisfaction of the court the court shallacquire jurisdiction to ascertain and determine the heirship ownership and interest ofall persons in and to the property of thedecedent

117540 Trial of issues stay of proceedings and notice to Governor if deceased diedwithout heirs Any person appearing at orbefore the time fixed for the hearing mayfile in the matter his verified answer to the

petition in which he may put in issue any107

SUPERSEDED


of the facts therein stated and shall setforth the facts constituting his claim ofheirship ownership or interest in the estatewith such particularity as the court may require and serve a copy thereof on the plaintiff or his attorney The plaintiff may replythereto Evidence may be taken orally or bydeposition in the same manner as in civilactions The issues of law and of fact arisingin the proceeding shall be disposed of as incivil suits Any order determining eitheraffirmatively or negatively the rights of anyperson as an heir or distributee is a finalorder and an appeal therefrom by any partyaggrieved shall He as from any other finalorder of the court in a probate proceedingThe court shall enter the default of all persons failing to appear plead prosecute ordefend their rights and upon the trial ofthe issues arising upon the pleadings or uponthe facts stated in the petition in case of adefault the court shall determine who arethe heirs of the deceased who are entitledto distribution of his personal estate on finalsettlement and the interest of each respective claimant therein The court shall notdecree any person to be an heir or distributee of an estate unless satisfied from the

proofs submitted that such person bears therelationship to the deceased which he claimsto bear in which connection the verifiedpetition and any affidavits depositions oraltestimony and transcripts of church or official records or other evidence submittedmay be considered When the court hasreason to believe that the deceased has diedwithout heirs the proceeding shall be

stayed for 60 days and the court shall causeimmediate notice to be given to the Governor

117550 Mssing heirs or distributeesIn proceedings under ORS 117510 to 117560the probate court shall not refuse to findwho are the heirs or distributees entitled toany estate being administred therein becauseof the supposed or possible existence of anunknown or missing heir or distributee whohas failed to appear at the time fixed in theorder of the court for the hearing of thepetition unless it affirmatively appears thatsuch missing or unknown heir or distributeehas been seen or heard from within a periodextending back not more than seven yearsprior to the death of the person whoseestate is under administration nor shall itbe presumed without affirmative proof

908

thereof that any such missing or unknownheir or distributee left issue but the courtshall in such a case presume and adjudgethat such heir or distributee has died without issue prior to the death of the decedentand shall ascertain the heirs and order distribution accordingly

117560 Decree conclusiveness appealreopening of proceedings 1 The order ordecree of the court made under ORS 117510to 117560 determining who are the heirs ordistributees entitled to the property of anydecedent which may remain on hand at theclose of administration and the shares therein to which such persons are entitled isfinal and conclusive subject only to theright of appeal and the executor or administrator is protected in making distributionin accordance therewith

2 However any defendant or claimantknown or unknown against whom service ofcitation has been made by publication andwho has not had actual knowledge of thependency of such proceedings prior to theentry of a decree therein or his representatives may upon good cause shown andupon such terms as may be proper be allowed to answer and set up his rights and todefend after the decree and within three

years from the entry thereof If the defenseis successful and his claim is establishedthere shall be decreed to him the share in thereal property of the decedent to which he isentitled If distribution of the personal property or any part thereof has been madesuch restitution may thereupon be compelledas the court shall direct and judgment maybe given and execution may be issued againsteach of the distributees for the part heshould refund All persons who have appearedin the original proceedings or who havebeen adjudged heirs or distributees or accepted any distributive share are deemedto be before the court and the court hasjurisdiction of their persons for the space ofthree years from the date of the originaldecree for the purpose of any proceedingsto reopen the same or order restitution Theapplication to reopen the decree shall bepersonally served upon each of them ifwithin this state and otherwise such services by citation and notice as the court maydirect shall be given to each of them


is

r

SUPERSEDED

L1TLEmEN AND DISTRIBUTION

FINAL ACCOUNT

117610 Filing final account hearingthereon 1 When the estate is fully administered the executor or administrator shallfile his final account Such account shall beverified by his own oath and contain adetailed statement of the amount of moneyreceived and expended by him from whomreceived and to whom paid and refer to thevouchers for such payments and the amountof money and property if any remainingunexpended or appropriated The accountshall affirmatively show that all personal income taxes and inheritance taxes which havebecome payable have been paid and that allsuch taxes which will become due are secured by bond deposit or otherwise

2 Upon the filing of the final accountthe court or judge thereof shall appoint aday at some time subsequent thereto for thehearing of objections to such final accountand the settlement thereof and shall directthe administrator or executor to give noticethereof in some newspaper published in thecounty and designated by the administratoror executor if there is one or otherwise insuch newspaper as may be designated by thecourt or judge as often as once a week forfour successive weeks and oftener if thecourt or judge shall so direct Before thetime appointed for the hearing and settlement of a final account the executor or administrator shall file with the clerk a copyof the notice thereof with the proper proofof its publication as directed

117612 Notifying heirs or legatees anddevisees of hearing on final account Whenever the final account of an administratoror an executor shall have been filed and aday fixed for the hearing of objections thereto the executor or administrator shall notless than 20 days before the time fixed forsuch hearing cause a copy of the publishedor posted notice of the time and place forsuch hearing to be mailed to each heir athis lastknown address if such decedent diedintestate or to each legatee and devisee athis lastknown address if such decedent diedtestate Proof of such mailing shall be madeby affidavit and filed at or before the hearing of the final account1961 c515 1

117615 Notice to State Public WelfareCommission If the State Public WelfareCommission or its authorized agent duringthe administration of the estate of a deced

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ent files a claim pursuant to ORS 412170412600 or 413200 against the estate andthe claim has not been settled or paid in fullthe executor or administrator of the estateshall not less than 10 days before the hearing for the settlement of the final accountdeliver by mail or in person to the State Public Welfare Commission a copy of the finalaccount and a notice of the time and place ofthe hearing for the settlement of the finalaccount1959 c62 1

117620 Objections to final account bywhom and when made An heir creditor orother person interested in the estate mayon or before the day appointed for suchhearing and settlement file his objectionsthereto or to any particular item thereofspecifying the particulars of such objectionsbut no creditor is allowed to object to suchaccount whose claim has been satisfied asallowed by the executor or administratoror established by judgment or decree

117630 Effect of decree upon final account order setting forth heirs and legateesUpon the final hearing the court shall givea decree allowing or disallowing the finalaccount either in whole or in part as maybe just and right Such decree in any otheraction suit or proceeding between the parties interested or their representatives isprimary evidence of the correctness of theaccount as thereby allowed and settled Thecourt shall also make an order setting forththe names and ages of the heirs and legateesof such estate and such order shall be primafacie evidence of the facts set forth therein

117640 Representative chargeable withthe amount of inventory An executor or administrator is chargeable in his account withall the property of the estate which maycome into his possession at the value of theappraisement contained in the inventoryexcept as in ORS 117650 otherwise provided

117650 Representative not to profit orsuffer through change in values or inabilityto collect An executor or administrator shallnot make profit by the increase in value ofthe property of the estate nor suffer lossfor the decrease in value or the destructionthereof without his fault If any of theproperty of the estate sells for more than itsappraised value he shall account for the excess If any such property sells for less than

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its appraised value he shall not be responsiblefor the loss unless occasioned by his faultHe shall not be accountable for the debtsdue the estate if it appears that they remainuncollected without his fault He shall notpurchase any claim against the estate whichhe represents and if he satisfies any suchclaim for less than its nominal value he isonly entitled to charge in his account thesum actually paid

117660 Expenses and compensation ofrepresentative An executor or administratoris allowed in the settlement of his accountall necessary expenses incurred in the caremanagement and settlement of the estateincluding reasonable attorney fees in anynecessary litigation or matter requiring legaladvice or counsel For his services he shallreceive such compensation as the law provides but when the deceased by his willhas made special provision for the compensation of his executor such executor is notentitled to any other compensation for hisservices unless within 10 days after hisappointment he subscribes and files with theclerk a written declaration renouncing thecompensation provided by the will

117670 When court to reduce compensation provided by will Notwithstanding theprovision in the will for the compensationof an executor if the estate is insufficient to

satisfy the claims against it the court shallreduce such compensation so far as may benecessary to satisfy such claims to anamount equal to what the executor wouldhave been entitled if no such provisionhad been made

117680 Compensation of representative1 The compensation provided by law foran executor or administrator is a commissionupon the whole estate accounted for by himas follows

a Seven percent of any sum up to1000

b Four percent of all above1000 andnot exceeding 10000

c Three percent of all above 10000and not exceeding 50000

d Two percent of all above 500002 In all cases such further compensa

tion as is just and reasonable may be allowedby the court or judge thereof for any extraordinary and unusual services not ordinarilyrequired of an executor or administrator inthe discharge of his trust

117690 Proceedings in case of neglectto file final account An executor or administrator who fails to file his final account asprovided in ORS 117610 may be proceededagainst in like manner and with like effectas provided in ORS 117020 in case of failureto file a semiannual account



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