DAILT CAPITA1 JOURNAL SALEM. ORJCOOM. MOXDAV, JULY 10, 1811.
rxB runt
JUSTICE BURNETT SEES
IT Ifl A DIFFERENT LIGHT
And Expresses His Views in an Able Dissenting Opinion
Wades Through Wills, Sheriffs' Sales, Deeds, Mortgages
and a Mass of Other Things Bewildering to a Layman,
and Makes His Own Conclusions.
OREGON SUPREME COURT DECISIONS
Foil Text Published bj Courtesy of F. A. Turner, Reporter oi the
Supreme Court
President and Trustees of Tunlutin
Academy iind Pacific University T.
Keene, et al, Linn County.
The president and trustees of Tua
latin Academy and Pacific Univer
sity, respondent, v. Emma A. Keene,
R. G. Keene, her husband, Charta O.
Zimmerman, and Florence S. Zim
merman, his wife, Ida B. Wlckham,
Lafayette Townsend, Samuel M. Gar
land as administrator of the estate of
M. h. Zigler, deceased, F. P. Bodwell
and Ora M. Bodwell, his wife, Mamie
L. Burkhart, guardian Alma L. jl
len, and E. E. Ferguson, Belle C.
Ferguson and J. A. Ruyter, partners
doing business as Ferguson & Ruy
ter, appellants. Appeal from the cir
cuit court for Linn county. Hon.
'William Galloway, judge. Argued
and submitted June 8, 1911. Milton
V. Smith for respondent. H. H.
Hewitt for appellants. Burnett, J
Dissenting.
On November 7, 1887, Robert Mc
Cullough and Carrie A Talbott were
the owners of certain lands in Linn
county, and at tbat time mortgaged
the same to Jacob Kees to secure the
payment of $900. On August 25, 1891
they gave Kees a further mortgage
on the same premises for $700. In
July, 1892, they sold about 20 acres
of the land to Mary Cady. Subsequent
to the mortgages, McCullough and
Talbott made a contract -with M. L.
Zigler for the sale to Zigler of still
another tract of said land. McCul
lough, on the 8th of December, 1892.
executed a will in which he provided
for the payment of his debts and
funeral expenses and the erection, of
a monument over his grave, and then
gave, devised, and bequeathed the
use of all the residue of his property,
both real and personal, to his wife,
Lavina H. McCullough, during her
natural lifetime and directed that at
the death of his wife, all that re
mained of his property should go to
The Congregational Seminary, at
Forest Grove in Washington county,
state of Oregon." McCullough died
December 13, 1892, seized of an un
divided half of the lands mentioned,
except what had been sold, as stat
ed, and subject to the mortgages giv
en to Kees. The will was admitted to
probate and recorded in Linn coun
ty, Oregon, December 17, 1892. Kees
afterwards began suit in the clhcult
court of Linn county to foreclose the
two mortgages, making parties de
fendant of all persons having an in
terest In the land, Including Zigler
and excepting the plaintiff herein,
either in its name as the President
and Trustees of Tualatin Academy
and Pacific University, or as desig
nated in the will, "Congregational
Seminary at Forest Grove." That
suit went to decree of forecloseure,
Zigler withdrawing his answer be
fore decree. At the sale of the prem
ises, the mortgagee, Jacob Kees,
bought the property and afterwards
received a sheriff's deed which, in
pursuance of the decree and sale,
purported to convey to him the en
tire fee simple estate In the whole
tract. He subsequently sold to var
ious persons, in separate parcels, all
the land in question, having entered
into possession of the whole under
the sheriff's deed. Among others he
quit claimed to Mary Zigler and El
len Zigler for $350 the tract bar
gained by McCullough and Talbott to
M. L. igler and another parcel for
$100.
1 On the 9th of March, 1907, the
I plaintiff commenced this suit, alleg
ing in Its complaint, in detail, all the
transactions above alluded to, except
that It states that it is advised and
believes, and therefore, alleges the
fact to be that Robert McCullough
never made nor executed the second
mortgage mentioned above. How
' ever, the plaintiff offered no testl
' mony In support of this attack upon
that mortgage. It made defendants
of all the parties claiming interest in
the land subsequent to and as gran
' tees of Kees whether by deed, mort-
ttnea nr Inriemnnt'.. Tt. sates further
'"that each and all of the defendants
herein claim that said foreclosure
proceedings hereinbefore referred to,
and the sheriff's deed made thereon
to said Jacob Kees, in effect, con
veyed the entire title in the said
premises to the said Jacob Kees,
and that the subsequent deeds and
mortgages hereinbefore referred to,
have the effect of transferring the en
tire title to the premises herein de
scribed, whereas In truth and in fact
said foreclosure proceedings and said
sheriff's deed conveyed unto said Ja
cob Kees only the undivided half in
terest in said premises formerly
owned by Carrie A. Talbot and the
life estate of the said Lavina H. Mc
Cullough." The plaintiff also avers
"that it is ready, willing, and able to
pay such sum, if any, as may be
equitably due and chargeable against
the undivided half Interest of said
premises described In this complaint,
owned by the plaintiff, but plaintiff
has beep unable to learn or ascec
tain what amount, if any. Is charge
able against plaintiff's said Interest in
said premises, or to which of the de
fendants such payment should be
made; tbat a discovery and account
ing Is necessary in order to deter
mine what amount, if any, is charge
able against plaintiff's said Interest
In said premises on account of any
taxes paid thereon by said defen
dants, or either of them, since the
death of the said Lavina H. McCul
lough and to determine what portion
of said premises defendants, or any
thereof, have been in possession of.
and what they have received from the
rents, issues, use, occupation, or pro
fits of such portions subsequent to
the death of the said Lavina H. Mc
Cullough," and prays that its title to
the undivided half interest, formerly
owned by the said Robert McCul
lough be declared established; that
an accounting may be bad between
the plaintiffs and the defendants
herein to determine what amount, if
any, plaintiff should pay to defen
dants, and to which of the defendants
such amount, or any portion there
of. Is payable; that upon payment of
such amount, if any be found due to
the defendants, each and all defen
dants may be adjudged to have no
right, title, interest, lien, or claim, or
estate whatsoever against plaintiff's
undivided one-half interest in said
premises; that they be enjoined and
restrained from claiming, or attempt
ing to claim, any estate, right, title,
lien, or interest in the premises; that
the mortgage first above referred to
be cancelled, and that the defendants
who failed to appear shall be ad
Judged
lands." Tho plaintiff claims that It
is the residuary devisee under the
will of McCullough, and that he in
tended the designation of "Congrega
tional Seminary of Forest Grove" to
apply to the plaintiff herein.
The widow of the testator had
that any of the defendants ever re- which the owner of an integral part
ceivea any ot me aeDts or profits, or or me lana included in the mortease
were even in possession of the lands was not made a party to the fore-
tn aispuate. so far as that is con- closure, was given the option ot
cerned, it is, from the complaint, lust compelling the owner of the parcel to
as apparent that the plaintiff should redeem by paying the full debt or
make such an accounting as that the ' conveying to the subsequent owner
defendant should. The bill is man!-! the parcel in question.
festly, in substance, one exhibited for
the purpose of redeeming the land
from the effect of the foreclosure
sale in question. If it were not so,
why should it go to such extreme
particularity in relating the history
of the title and setting out the
claims of the defendants, and then
In Sellwood v. Gray, supra. Judge
Lord says, referring to the mortga
gor: "His equity of redemption is
the right to redeem from the mort
gage to pay off the mortgage debt
until this right is barred by decree of
foreclosure; but until this right is
barred, his estate, in law or equity,
pray for a decree enjoining the de- la just the same after, aa it was be-
fendanu from claiming any right or 'ere default, it is a right, though, of
title in the premises? which the law takes no cognizance,
For the purposes ot this opinion, it and Is enforceable only in equity.
is not necessary to determine wheth- and has nothing to do without stat
er the "Congregation Seminary at ute of redemptions. This is a valua-
Forest Grove" is a sufficient designs- ble right, and exists not only in the
tion ot the plaintiff. The first ques- mortgagor himself, but in every oth-
tion which presents Itself is, what - er person who has an .Interest in, or
was the effect of "the foreclosure of legal or equitable Hen . upon, the
Keene's mortgage without making mortgaged premises, and Includes
the plaintiff there a party to that judgment creditors, all of whom may
suit? ' . insist upon, redemption of the tnort-
We are told In DeLashmutt v. Sell- Base."
wood, 10 Or. 326, that the true doc- Conceding, as we must, for the
trine in this state is that a junior I purposes of this opinion, that the
Hen holder is not in any way affected ' plaintiff was the residuary devisee
by the proceedings to foreclose, to under the McCullough, will within
which he Is not a party; that his the meaning of the excerpt just
right to sell on execution and con-' quoted, it had an Interest in the
H H - H it
n in hi en
vey the title remains unimpaired
and that as to the purchaser at the
sale under his judgment, the pur
chaser at the prior sale under the de
cree of foreclosure must be consid
ered as an assignee of the mortgage,
and successor in interest of the mort
gagor, simply, and as in the same po
sition he would have occupied had
he taken a simple assignment of the
mortgage from the owner, and a con
veyance of title from the mortgagor,
and made no attempt to foreclose.
In that case, the purchaser at a
sale under an execution, issued uuon
to have no estate ini the a junior judgment, the owner of
which had not been made a party to
the foreclosure, was sustained in his
possession of the land as against the
purchaser at the foreclosure sale, al
though the mortgage foreclosed was
prior in effect to the ludgment.
This learning Is further exempll-
been dead nearly six years when this fled in Sellwood v. Gray in 11 Or.
suit was commenced. The defen-1 539. This case grew out of the same
dants answered, giving the history of proceeding in question in DeLash-
thelr title, deralgning the same from mutt v. Sellwood, supra, and it was
Jacob Kees, under his sheriff's deed, held in the later case, that when the
and alleged that they had been in plaintiff in the foreclosure suit ob'
possession, claiming to own the prop- talned a decree for the sale of prop
erty under color of title, adversely to erty without making the defendant
all persons, for more than 10 years. Gray a party, the proceeding as to
The cause being at Issue, the circuit him was a nullity; but that the sale
court rendered a decree In favor of effected some Important results. In
the plaintiff, In substance, that it is this: that as to the defendant Gray,
the owner in fee and entitled to the it stood as if no such sale had been
possession, use, and enjoyment of an made. He had a right to redeem by
undivided half interest in the prem- paying the amount of the encunv
Ises, free of all encumbrance, and brance. The plaintiff as purchaser
barred the defendants from claiming at the forec'osure and sale took all
any interest In the same. From this the rights of his senior mortgagee,
decree, the defendants have appealed, and so much of the mortgagor s equi
Burnett, J. The bill has some ot ty of redemption as was not bound by
the aspects of a complaint to deter- the subsequent lien of the defendant
mine an adverse interest in lands, Gray.
under Lord's Oregon Laws Sec. 516, Still further, in Osborn v. Logus,
as indicated by the extract quoted 28 Or. 310, this court says that the
above, but It cannot be entertained as owner of the equity or redemption is
such, because It falls to allege that an indispensable party and without
the land is not in actual possession him the suit cannot proceed. Subse-
of another. It is contended in the quent lienors are considered neces
argument on the part of the plaintiff sary parties, but their absence from
that it is a suit against the defen- the record does not perforce of that
dants as co-tenants with the plain- fact render the proceedings a nullity,
tiff for an accounting for the rents In Wilson v. Tartar, 22 Or. 504, a
and profits, but it nowhere alleges purchaser at a foreclosure sale, in
mortgaged premises. Indeed, it
stood in the shoes of one of the mort
gagors, to-wlt: 'its testator. As such,
it had a right to sue for the redemp
tiontion of the premises, that, right
not having been barred by the fore
closure suit. Jonsiderlm? It even as
a tenant In common, it still had a
ngni 10 bus ior redemption, under
the authority of Merritt v. Hosmer
11 Gray 276; 71 Am. Dec. 713.
An analysis of the cases quoted
will show that the right of the pur
chaser at the sale to compel a re
demption on the one hand, and of a
person interested in the premises to
sue for redemption, on the other, do
not depend on the decree of the fore
closure being wholly void as to all
claimants. in all the cases men
tioned, the decree was valid as to
some of the defendants In the suit,
but, of course, ineffectual as to par
ties in interest who were not made
defendants.
The right of a purchaser at such a
sale to compel a redemption by strict
foreclosure is a right which is the
complement of the right on the part
of one claiming a subsequent inter
est in the land to bring a suit to re
deem. The situation is this: The
tenant in common, not being made a
party to the suit to foreclose, finds
some one in possession of the whole
of the land with whom he has no
privity, who is not a tenant in com
mon under the original holding and
his suit to redeem is an effort to rid
the land of the one who has thus in
truded. The result of his effort if
successful is to terminate the effect
of the sale and restore the estate to
its former owners, for his redemption
Inures to their benefit. Dray v. Dray
21 Or. 59. What must he do to ef
fect that purpose? He must do equi
ty by redeeming the land, and to do
so, in the language of Williams v.
Wilson, 42 Or. 307, he muBt pay the
entire mortgage debt and interest un
der the equitable rule, and not under
the statute as from a sale under the
decree."
All the decisions of this court
above noted, so far as the sum to be
The Business you can
get to-day by wire
may be gone by the
time that letter gets
there to-morrow.
"Day Letters" should
be on your selling
force.
THE WESTERN UNION TELEGRAPH COMPANY
I'v. -J
H it
paid Is concerned, contemplate noth
ing less that the full amount of the
mortgage debt It must be so. for the
object of redemption la not to estab
lish cotenancy with the purchaser,
but rather to terminate the effect of
the sale and exclude him from par
ticipation in the title. He must,
therefore, have his full debt with in
terest without deducting the amount
bid at the sale or any part thereof.
Neither should the amount required
for redemption, if allowed in this
case, be diminished by the $350 form
ing the consideration paid to Kees to
induce him to quit claim the tract to
Mary and Ellen Zigler. If those two
grantees were claiming under the
bond for deed from McCulloueh and
Talbott to M. L. Zigler, their interest
was subsequent and subordinate to
both the Kees morteaees. the latest
of which bore date August 25, 1891,1
wnue the zigler bond was executed
August 1, 1892. Moreover, although
Zigler was made a party to the Kees
foreclosure suit as a junior' incum
brancer under the bond, he withdrew
his answer and the decree barred and
foreclosed him from any further ln
teres In he premises. By his pur
chase at the foreclosure sale, Kees
took the land free from any claim on
the part of Zigler. In a paraphrase
upon the language of Williams v. Wil
son, 42 Or. 308, there must have been
some purpose in making Zigler a
party to the foreclosure suft and
what purpose can be subserved
thereby if the decree denied or cur
tailed none of his rights under his
junior bond for a deed? The tiilehe
contracted for having been extin
guished by the foreclosure, not only
because of the Juniority of his bond
for a deed, but also because he did
not set it up as his defense In that
suit, he might have had recourse
upon his obligors to recover what ho
had paid them, but he had no claim
upon the purchaser at the sale tor
the latter tbok a title by paramount
to Zigler's bond. Kees had the right
to sell whatever he had acquired by
the sale to Zigler or Keene or any
one else but the deal would not in
ure to the benefit of the plaintiff, a
stranger to the transaction.
To charge the $350 against the
present defendants, if a redemption
is permitted here, would be in effect
to declare that notwithstanding the
Zigler bond was subsequent to thf
Kees mortgages and was foreclosed!
and its effect terminated by the de
cree yet it survives the grave of
foreclosure and is resurrected into a
position paramount to that of the
purchaser at he sale. Of course, if
the plaintiff in this suit had alleged
that Kees or his grantees had re
ceived anything from the land in ex
cess of maintenance and taxes, it
might by that much reduce the
amount to be paid for redemption,
within the principle laid down in
Cartwright v. Savage, 5 Or. 397; but
nothing of that kind appears In the
complaint.
Manifestly, in this case, the plain
tiff is not trying to redeem Its own
undivided halt separately, for as we
have seen, its title is not affected by
the foreclosure suit to which it was
not a party; but in order to do
equity, it must redeem the whole
property by paying the whole mort
gage debt. The property was pledged
as a whole, the plaintiffs teBtator
was liable for the whole debt, and
(Continued on Page 6.)
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