dissenting.
The question in this case is whether plaintiffs interest in real property under a decree which required that the property be conveyed to her and which was not recorded in the deed records pursuant to ORS 93.680(1)(b) is void as to the subsequent bona fide purchasers of the property. The answer to the question was provided by the Supreme Court in Temple v. Osburn, 55 Or 506, 511, 106 P 16 (1910), through the language the majority quotes at 60 Or App 243-44.1
The majority begins its analysis with the observation that “[t]he situation is analogous to that presented in United Finance Company v. King, 285 Or 173, 590 P2d 228 (1979).” 60 Or App at 240. The majority then presents a lucid and critical discussion of United Finance and earlier Supreme Court decisions construing ORS 18.350 and 18.370. After repeating that the problems and statutes in *247those cases and this case are “closely analogous,” 60 Or App at 243-44, the majority proceeds to equate analogy with identity and superimposes the interpretation of ORS 18.350 and 18.370 in United Finance on ORS 93.640(1) and 93.680(1)(b). Only then do we learn from the majority that, in Temple, the Supreme Court interpreted the materially identical predecessor of ORS 93.680(1) (b) to mean the exact opposite of what the majority says that statute must mean in light of the Supreme Court’s intepretation of a different statute in United Finance.
I agree with the majority that the situations and the statutes in United Finance, on the one hand, and in Temple and this case, on the other, are analogous. But I think the majority carries the analogy too far: Temple is directly in point; United Finance is not; and the majority’s understanding that United Finance overrules Temple sub silentio is belied by the footnote in United Finance (to which the majority refers at 60 Or App 241, n 2:
“The creditors involved have made no response to appellant’s brief, and no reference was made in this court to any possible relevance of the recording statutes, ORS 93.610-93.800 or the statutes concerning conveyances in fraud of creditors, ORS 95.020, ORS 95.070.” 285 Or at 176, n 1. (Emphasis added.)
The majority identifies a number of significant problems, including the tortured path the Supreme Court has followed in its interpretations of ORS 18.350 and 18.370; the disparity under the applicable statutes, as now interpreted by the Supreme Court, between the rights of judgment creditors and those of bona fide purchasers against holders of unrecorded real property interests obtained through judicial orders; and the apparent disparity between the treatment of judgment liens and judicially-ordered conveyances for purposes of constructive notice. The majority’s solution may make sense; the Supreme Court’s decision in Temple, as well as its decisions in some or all of the other cases the majority discusses, may not make sense.
If the issue here were whether United Finance and the earlier cases construing ORS 18.350 and 18.370 are at odds with one another and, perhaps, the statutes they *248construe, I might agree with the majority. I might also agree if the issue were whether United Finance and Temple treat judgment creditors and bona fide purchasers anomalously. Finally, I would agree with the majority if the issue were whether to suggest that the Supreme Court reexamine Temple in light of United Finance (and United Finance in light of Temple).
However, at least for purposes of deciding this case, none of those things is the issue. The issue is whether to follow Temple or to overrule it. Only one of those options is available to this court. The majority’s invitation to the Supreme Court to reevaluate existing precedent is amply supported by the majority’s cogent analysis of the problems and inconsistencies to which the precedent gives rise. The invitation does not need to be emphasized by our disregarding Supreme Court precedent which is clearly controlling.
I would affirm the judgment and I respectfully dissent.
Joseph, C. J., joins in this dissent.The majority characterizes the language as “dicta.” If, by that, the majority meant that the language never was authoritative, I would disagree. Whether or not the Supreme Court had to interpret the predecessor of ORS 93.680(1) in Temple, it did interpret the statute and the interpretation was part of the rationale for its holding. Be that as it may, I understand the majority’s position to be that the Temple language has been overruled sub silentio by the Supreme Court, and not that the language was nonprecedential from the outset.