DeLashmutt v. Sellwood

By the Court, Watson, C. J.

The question first presented for us to determine is whether the demurrer to the further separate defense in the answer was properly sustained. . Appellant claims that the facts stated in this defense show that he was a mortgagee in possession, with the mortgagor’s consent, after default in payment of the debt secured by the mortgage, and within the rule laid down by this court, in Roberts v. Sutherlin, 4 Or., 219 . There is no analogy, however, between the essential facts in the two cases. In the case cited, where an action similar to the present had been brought by th.Q mortgagor against the assignee of the mortgagee in possession, the defense which the court held good on demurrer was that, after default in payment, the defendant entered into the possession of the premises with the full assent of the plaintiff, and that there was still due on the mortgage the sum of about four thousand dollars. The court construed the facts thus alleged as implying an agreement that the assignee of the mortgagee might retain the possession so acquired until his debt should be satisfied; and held such agreement valid, and possession under it a good defense to the action. But it does not appear from the allegations in the separate defense in the case here, that the appellant was let into possession before the execution of the sheriff’s deed to him, under the decree of foreclosure and sale of February 21st, *323 1877; or that he ever got possession with the mortgagor’s consent, or even had his consent to remain in possession, until after that date. As the mortgagor had no interest in or control over the property, at the date of his alleged consent to the possession thereof by the mortgagee, it is self-evident that he at that time had no power to make a valid or binding contract for the possession, such as appellant would have the court imply from the facts stated in the separate defense in his answer. The appellant plainly entered into possession as a purchaser at sheriff’s sale, which he had a perfect legal right to do, and the consent of the mortgagor was entirely unnecessary and wholly devoid of meaning or effect. The appellant took the title itself, as against the mortgagor, in fee, and not(the mere possession, to be held until his debt should be paid, and then be re-delivered to the mortgagor, freed and discharged from the incumbrance created by the mortgage.

The facts set forth in the separate defense cannot be made to sanction the inference which appellant seeks to deduce from them, i. e., an agreement between the mortgagor and mortgagee that the latter shall retain possession until the amount due on his mortgage shall be paid, accompanied by actual possession under such agreement. But it seems to us needless to pursue the discussion upon this point any further. So plain a proposition needs no explanation.

The next question is raised by the appellant’s exception to the ruling of the circuit court, admitting the judgment docket in evidence to show the entry of the judgment of Geo. P. Gray against O. M. Carter and W. P. Poland. Appellant made two principal objections at the trial to the admission of this evidence: 1. That it did not show who the judgment debtors were; 2. That it did not show any judgment for money. On examining the docket, we find *324 under the head of “ judgment debtors ” the following entry:

“Carter, C. M., et al-” and opposite, under the head “ amount of judgment,” the figures | 6 | 5 | 5 | 50 | , in a column ruled in the manner usual with money columns in boohs of account to denote the amounts entered, in dollars and cents, but without any dollar mark to show that such figures are intended to represent money at all.

Appellant insists that the entry is fatally defective, in both respects, and that in consequence thereof the Gray judgment never became a lien on the property in controversy. The statute, however, does not expressly require the entry of the names of all the judgment debtors, in any case, under this head, in the judgment docket. (Civ. Code, secs. 266 and 562.) And we can perceive no good reason for holding invalid an entry which does, as in this instance, fully and correctly set forth the name of the judgment debtor against whose lands the lien is claimed, because it does not also give the name of a co-debtor, against whose property no relief is sought. There is no misdescription of the judgment, and the addition of the name of W. P. Doland, as a co-debtor, in the docket entry, would not have made it more certain that the judgment was a lien on the real property of C. M. Carter, lying within Multnomah county. Construing the statute both in view of its express requirements, and the obvious purpose of the entry in the judgment docket, we think there can be but little doubt that if not otherwise deficient it made the Gray judgment a lien upon the real property in controversy, the title of which was then in C. M. Carter. The objection that it does not appear from the docket entry what the figures, in the column headed, “ amount of judgment,” stand for, presents a question by no means new in this court. In the case of French, et al. v. Rogers, disposed of at the last term, we *325 held, in. effect, that any mark commonly understood, and ordinarily employed in business transactions to denote the division of figures, obviously representing money, into dollars and cents, would suffice for that purpose, in entries of this character. Such we deemed the mark ordinarily used in setting down sums of money on paper, to denote the amount represented by the two figures on the right as cents, and that represented by the figures on the left as dollars; and the same effect in our judgment must be allowed to the lines and spaces in the ruled money columns, in regular account books, or official records similarly prepared. General usage and common understanding have given such marks and lines, when so employed, a signification by which not individuals only, but courts as well, are enabled to determine what, and what ■ amount figures so placed were intended to represent, with as much ease and almost as much certainty as though the dollar mark itself, or written words even had been used to express the same meaning. To the doctrine of that case we still adhere, and deem it decisive of this point in the case before us.

Appellant next contends that the sheriff’s deed to him of August 18, 1877, conveyed to him the entire legal title in the property in controversy, and that the subsequent sale under the Gray judgment to the respondent, had no effect upon such legal title, but, at most, operated as an assignment of the judgment to the purchaser thereof, and invested him only with the right to redeem from the appellant, by a suit in equity. The decision in Post v. Arnot, 2 Denio, 344, has been cited as supporting this view. Unfortunately this was only one of two questions presented and considered in that case, and the decision might well stand upon the determination of either in a given manner by a majority of the court, or even by the concurrence of minorities on both. *326 Eleven senators voted for tlie reversal and nine against it. Only six of those voting in the majority expressed opinions, and two of these placed their judgment on the other ground. It cannot be said with any kind of certainty that any principle was determined by this decision, or that it has any weight as an authority on either of the questions it involved. (Kortwright v. Cady, 21 N. Y., 343 .) And it is quite sure that it has not been followed in the state where it was rendered or elsewhere. (Walsh v. The Rutgers Fire Ins. Co., 13 Abb. Pr., 37 ; Peabody v. Roberts, 47 Barb., 100 .)

And besides, we regard the question as virtually settled the other way in this state, by the decision of this court in the case of Besser v. Hawthorn, 3 Or., 512 , affirming the decree of the circuit court, also reported in the same volume on page 129. Under this decision, the title in the case at bar did pass to the respondent by the sale and deed under the Gray judgment, and he can maintain this action. We conceive the true doctrine, and that which has been established in this state by the decision referred to, to be that the j unior lien holder is not in any way affected by the proceedings to foreclose, to which he is not a party, that his right to sell on execution and convey the title remains unimpaired; and that as to the purchaser at the sale under his judgment, the purchaser at the prior sale under the decree of foreclosure must be considered as an assignee of the mortgage, and successor in interest to the mortgagor, simply, and as in the same position he would have occupied had he taken a simple assignment of the mortgage from the owner, and a conveyance of title from the mortgagor, and made no attempt to foreclose. (Davenport v. Turpin, 43 Cal., 597 ; Vanderkamp v. Shelton, 11 Paige, 28 ; Holmes v. Bybee, 34 Ind., 263 ; Peabody v. Roberts, 47 Barb., 100 .)

The exclusion of the record of the proceeding in bank *327 ruptcy, and the assignee’s deed to appellant, seems to us open to no objection whatever. The petition to have Carter adjudged a bankrupt was not filed until July 6, 1877, long after the sale under appellant’s decree had been made and confirmed, and when Carter had only a mere right to redeem. There seems never to have been any question as to the validity or bona fides of such sale to appellant so far as Carter was concerned, or those claiming under him. The assignee never had any title to the premises; never pretended that he had or could get any, and his quit claim deed to the appellant, which the latter seems to have solicited, to exclude any question as to the soundness of his title, passed nothing. The tax deed was offered in evidence by the appellant at the trial in connection with the original assessment roll and delinquent tax roll on which it was based. Neither of these rolls showed any assessment against Carter or his property, or any delinquent tax to pay which block 47 might lawfully have been sold. While if the tax deed had been offered by itself, it might or might not have been admissible, it clearly was not when presented in connection with the assessment and delinquent tax rolls, which failed to show facts essential to its validity. The court below properly rejected all the papers thus offered together. And as the respondent’s case was established by documentary evidence alone, whose effect as well as admissibility were proper subjects for the determination of the court, and fully sustained the propositions assumed in the instruction to the jury, to return their verdict for the respondent, and no evidence was admitted on behalf of the appellant,' such instruction was not only correct, but in every respect proper. The judgment of the circuit court is affirmed with costs to the respondent.

Judgment affirmed.