58 P. 508 | Or. | 1899
delivered the opinion of the court.
This is a suit against an attorney to set aside the assignment of a decree and to recover the alleged value of certain real property which was subject to the lien thereof. It appears that C. W. Olive and wife, to secure the sum of $900, executed to plaintiff a mortgage on certain town lots in Coquille City, which were subject to a prior mortgage of $4,000; that, a building on said premises having been destroyed by.fire, the holder of the prior lien collected the loss from the insurer thereof, reducing his demand to $527.17, whereupon he assigned his mortgage to Robert McCann, who retained defendant to foreclose the same; that plaintiff, having knowledge of the existence and bona fides of the prior lien and of defendant’s retainer, also engaged him and J. S. Coke to foreclose his mortgage, but the latter alone instituted the suit, making McCann a party, who, appearing by defendant, filed an answer setting up the prior lien, and a trial being had resulted in a decree foreclosing both mortgages. Plaintiff having informed defendant that he would be able to pay the amount of the prior lien, an execution was issued, in pursuance of which W. PI. S. Hyde, who had been appointed receiver, advertised the lots to be sold July 6, 1895, at which time the defendant bid therefor $666.66, the amount of McCann’s claim, whereupon the receiver, at defendant’s request, adjourned the sale for one week, and from week to week thereafter until the twenty-seventh of that month, but received no other bid therefor. On July 14, 1895, plaintiff having informed defendant that he had only $300 with which to purchase the lots, the latter offered to loan him an amount, sufficient, with what he had, to enable
Defendant, on July 24, entered into an agreement with Eugene O’Connell, by which it was stipulated that the latter should bid the sum of $1,800 for said lots, and, upon his paying the amount due McCann, defendant would execute to him a receipt for the remainder of the bid, in consideration of which O’Connell was to convey to defendant an undivided one-half interest in the premises upon the repayment of one-half the sum so expended. On July 27 O’Connell made the bid agreed upon, and, upon its being accepted, he paid the sum of $670.66, the amount due McCann and expenses, and delivered to the receiver defendant’s receipt for $1,129.34, and obtained a