Coughanour v. Hutchinson

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

There are two questions of fact to be determined: The defendants Hutchinson insist that the proof is not sufficient to authorize the reformation of the deed from Welch and wife to the plaintiff, and "the plaintiff and defendant Welch contend that it was agreed and stipulated at the time,the decree of foreclosure was entered that the property in controversy should be released from the lien of the mortgage and decree.

1. Welch testified that in 1887 he sold and intended to convey to the plaintiff what is known as the “Pilcher Place,” being part of the premises described in the mortgage; that he handed the Pilcher deed to the notary to obtain a description from it, and supposed that the land was correctly described; that he first learned of the mistake a short time before this suit was commenced. The plaintiff testified that he bought the Pilcher place and two other tracts of land, adjoining the Town of North Powder, from Welch, and supposed they were properly described in the deed until a short time before he commenced this suit; that, some time prior to the commencement of the foreclosure suit by the Hutchinsons, he went into possession, and rented the land to a man living on an adjoining farm. These witnesses are not contradicted in any way, so that it is clear there was an error in the deed from Welch to the plaintiff, which occurred through the mutual mistake of the parties, and the court was manifestly right in decreeing that it be reformed.

2. There is no testimony that the Hutchinsons ever agreed to release any part of the mortgaged premises. After the suit to foreclose was commenced, it was ascertained from an examination of the record by the attorneys for the Hutchinson *423 brothers and Welch that plaintiff had no record title to any of the mortgaged property; and in accordance with the information thus obtained, and without any knowledge of the real facts, the suit was dismissed as to the plaintiff. It is quite clear that it was not intended by any of the parties that the plaintiffs in the foreclosure suit should release any of the property described in the mortgage, and there was no mistake in this regard in the stipulation. It was made in accordance with what the attorneys supposed to be the facts in the case, and with no intention that the Hutchinsons should surrender any of their rights under the mortgage.

3. The remaining question is as to the decree that should be entered in this suit. There is evidence tending to show that at the time the foreclosure suit was commenced the Hutchinsons had either actual or constructive notice that plaintiff claimed some interest in or title to a portion of the mortgaged premises. If this was so, they should have made him a party to the foreclosure suit, in order to bar his claim to the property, and, not having done so, his interest is in no way affected by the decree: Webb v. Maxan, 11 Tex. 678 .

4. But as the holders of the legal title were parties to the suit, the sale under the decree was effective to convey such title to the purchasers, and the plaintiff is not entitled by reason of his equitable title to possession as against them. The Hutchinsons, having purchased under the decree and entered into possession of the property, have a right to retain it, as against the mortgagor and all persons claiming under him, until their debt is paid: 1 Jones, Mortg. § 115; Cooke v. Cooper, 18 Or. 142 ( 22 Pac. 945 , 7 L. R. A. 273, 17 Am. St. Rep. 709 ).

5. The plaintiff’s remedy is either to redeem, or perhaps by a suit to compel the Hutchinsons to elect whether they will accept the amount due on their mortgage, or release the land claimed by him: Wilson v. Tarter, 22 Or. 504 ( 30 Pac. 499 ). But this is not a suit for permission to redeem, or for the purpose of compelling an election by the defendant; and it is not believed that the court- is authorized, under the pleadings or *424 the evidence, to make such a decree. Where a junior lien holder or an equitable owner of the mortgaged premises is not made a party to the foreclosure suit, he is entitled to redeem from the purchaser under the decree by paying the amount of the mortgage debt, interest, taxes, assessments, and prior incumbrances paid by the purchaser, with such expenses as he may have incurred in the matter of necessary repairs, and in some instances permanent improvements, less the rents, issues, and profits: Poole v. Johnson, 62 Iowa, 611 ( 17 N. W. 900 ); 2 Jones, Mortg. § 1075; 11 Am. & Eng. Ency. Law (2 ed.), 226, 235, 237. It is essential, however, that a bill to redeem should contain appropriate allegations upon which these matters can be determined and an accounting had, and it must also either make a tender, or at least contain an offer to pay whatever may be found due: 2 Jones, Mortg. § 1095. The complaint in this case does not mention the mortgage of the Hutchinsons, or concede that there is anything due thereon. It contains no allegations upon which an accounting can be had, nor averment of an offer to pay. It is confined solely to the question of the reformation of the deed from Welch to the plaintiff, and the possession of the property. The plaintiff does not rely upon the right of redemption, but seeks to establish a legal title to the land, and to obtain possession thereof. A court of equity delights, when possible, to do full and complete justice between the parties in a suit; and therefore, having acquired jurisdiction for one purpose, it will ordinarily retain it for all purposes necessary to accomplish that object: 1 Pomeroy, Eq. Jur. § 181. But it must confine its relief to the issues made by the pleadings, and is as much bound to observe the rules of pleading as a court of law. The plaintiff is entitled to have the deed from Welch reformed so as to describe the land intended to be conveyed, but is not entitled to a decree for the possession of the land; so that it must be determined in some appropriate proceedings-brought for that purpose whether, under the facts and the law, he can now redeem. The decree of the court below is therefore affirmed.

Aeeirmed.