Wilson v. Tarter

Mobtgages—Fobecdosuke— Redemption oE Pabcbl.—A mortgage was foreclosed and the whole mortgaged premises sold on execution to the mortgagee without making a defendant of one who owned part of the land by title acquired subject to the mortgage; held, in a suit by the successor in interest of such owner to redeem his parcel of land, that the mortgagee must elect between redemption of the whole premises on the one hand, or, on the other, conveyance of the parcel to the plaintiff, in the suit to redeem.

Union county: Jas. A. Fee, Judge. Defendant appeals. The object of this suit is to redeem certain mortgaged property. The facts upon which the plaintiff’s rights depend may be briefly summarized: On the seventh day of January, 1885, one M. B. Baird and E. D. Baird, his wife, were the owners in fee of several lots, blocks, and parcels of land situated in the town of Union, Lewis’ addition to the town of North Union, McCully's addition to the town of North Union, and also in the town of West Union, all in Union county, Oregon, and on that day mortgaged the same to Nicholas Tarter and W. H. McComas to secure the payment of two notes,—one to McComas for eight hundred and seventy-eight dollars and fifty-eight cents, and the other to the defendant Tarter for one thousand dollars,— each of said notes bearing interest, which mortgage was duly recorded; that thereafter the note to McComas was duly paid; that on the ninth day of June, 1885, said Baird and wife sold and conveyed in due form block one in McCully’s addition to North Union, which was included in said mortgage, to one A. Riggs, which deed was duly recorded June 30,1885; that thereafter, M. B. Baird died intestate, and Nelson Schoonover was duly appointed administrator of his estate; that on the eighth day of August, 1887, said Tarter commenced a suit in the circuit court of Union county, Oregon, to foreclose said mortgage; that in said suit, said administrator, as well as E. D. Baird and the heirs at law of M. B. Baird, were made parties defendant, but not A. Riggs; that on the twenty-fourth day of February, 1888, such proceedings were regularly had in said suit that a decree was regularly taken and entered foreclosing said mortgage against said defendants, and directing the mortgaged premises to be sold to satisfy the amount then due, namely, one thousand two hundred and sixteen dollars and sixty cents, with costs and disbursements. Thereafter, upon an execution duly issued on said decree, and the sheriff having advertised said property according to law, the same was duly sold as one parcel to the defendant Tarter on the ninth day of April, 1888, for the sum of one thousand four hundred and twenty-nine dollars and sixty-three cents; and at said time said purchaser received the proper certificate; that on October 4,1888, said circuit court duly confirmed said sale, and that thereafter, the time of redemption having expired, the sheriff of said county made a deed conveying said property to Tarter, who entered into possession of all of said property; that •on the seventh day of August, 1889, Riggs and wife, by deed in due form, conveyed to the plaintiff said block one in McCully’s addition to the town of North Union, Union county, Oregon, including his equity of redemption of, in and to the whole of said mortgaged premises; that the reasonable value of the rents and profits of said mortgaged premises since Tarter entered into the possession of the same is thirty-five dollars per month; and plaintiffs offer to pay whatever may be found to be due on said mortgage to Tarter upon an accounting. The answer admits many of the facts relied upon by the plaintiff, but the principal contention is as to the law arising thereon. It is admitted that the rents and profits of said mortgaged premises from the date of the sale till this suit was commenced were three hundred and seventeen dollars and fifty cents, and that Tarter paid seventy-eight dollars and fifty cents in making permanent repairs on the property, and taxes thereon to the amount of one hundred and three dollars and twenty-two cents. The reply denies the new matter in the answer. The reply also contained some new matter by way of estoppel as to one of the contentions of the defendant, but the same need not be specially noticed. The cause was referred, and after taking the evidence, the referee found the facts as follows: First, that on the seventh day of January, 1885, when M. B. Baird and wife made the said mortgage to the defendant, set out in the complaint, they were the owners of said block one in McCully’s addition to the town of North Union, and that fn said mortgage they attempted to and purported to convey to the defendant with certain other property, lots four, five, six, and seven, or one-half of said block one; second, that the recorded plat of said block one of McCully’s addb tion does not show that said block is laid out in town lots, but that the deeds mentioned and referred to in said stipulation show that said block one contains eight lots; third, that the deed from M. B. Baird and wife to A. Biggs, dated June 19, 1885, conveyed to said Biggs all of said block one; fourth, that the defendant claimed in his complaint, filed for foreclosure of said mortgage, that said mortgage included said lots four, five, six, and seven of said block one, and that it was a valid and subsisting lien thereon; fifth, that defendant has at all times since the sheriff’s sale of the mortgaged premises claimed to own said lots four, five, six, and seven of said block one, by virtue of said sheriff’s sale and deed; sixth, that the deed from A. Biggs and wife to plaintiffs, dated August 7,1889, conveyed to plaintiffs all of said block one, and that whatever equities of redemption said A. Biggs and wife had in and to the property included in defendant’s mortgage, were conveyed to plaintiff thereby; seventh, that defendant has received from rent of said mortgaged property up to the ninth day of February, 1891, four hundred and ninety dollars and seventy cents, but that he has received no rent from said block one; eighth, that defendant has expended for repairs on said mortgaged property one hundred and thirty-one dollars and eighty-five cents, and has paid taxes on the same, including the taxes of 1890, assessed to defendant, ninety-eight dollars and eighty-eight cents; ninth, that the amount due defendant on said mortgage at the time of the sale, exclusive of attorney fees and costs, was one thousand three hundred and thirty-two dollars and sixty-six cents, and that nothing has been paid on it by the mortgagor, nor has any part of it been paid since by the heirs or administrator of the deceased mortgagor; tenth, that there is nothing to show from the pleadings or the stipulation the value of the different lots or parcels of land included in the mortgage, or of any or all of the property mortgaged; eleventh, that A. Riggs, plaintiffs’ grantor, was not made a party to the foreclosure suit by defendant. The referee also made findings of law favorable to the plaintiffs, and recommended a decree in their favor. The court modified the findings of fact as well as of law in one particular, and then decreed in favor of the plaintiffs, from which the defendant has brought this appeal.