Anderson v. Phegley, 142 P. 593

Anderson v. Phegley

142 P. 593 | Or. | 1914

Lead Opinion

Mr. Justice Eakin

delivered the opinion of the court.

Defendant’s contention seems to be that the rights of the parties shall be determined by the legal effect of the foreclosure sale and relative rights of redemption, to the exclusion of the agreement of March 16, 1907, and that plaintiffs lost all rights in the property by their failure to redeem from the foreclosure sale within the statutory period; but that would be en*334tirely contrary to the intention of the parties and to the conditions of the agreements. The trial court called the transaction an equitable mortgage, but we consider the agreements as well as the title obtained by Phegley at the foreclosure sale as creating a trust, and that a court should so treat it and deal out equity upon it, as expressly agreed by Phegley immediately after the mortgage sale, when he and plaintiffs signed an agreement reciting the liens and their priorities; that “the said property was so bid'in by the said Grant Phegley under and in compliance with the terms of their said agreement of March 16, 1907, and, as trustee for the said Anderson, Williamson, Phillip, and Phegley, the said parties do hereby receipt to Joseph Russell, sheriff of Josephine County, Oregon, the officer making the sale, for the sum of $15,432.56.” Phegley executed to the plaintiffs a further statement of the same date that he bought at a foreclosure sale certain properties belonging to the Galice Consolidated Mines Company “for the aggregate sum of $15,432.56, of which said sum the said Grant Phegley is entitled to a priority to the amount of $2,550.63, the said Anderson, Williamson, and Phillip are next entitled to the sum of $5,961.93, and the said Grant Phegley is thereafter entitled to the balance of $6,920, and the said Grant Phegley * * shall and will hold the said property in trust for himself and the said Anderson, Williamson and Phillip, as their interests appear, respectively, in said decree of foreclosure and order of sale, and in accordance with the terms of a certain agreement between the parties of date March 16, 1907, to which agreement this memorandum shall be attached as part thereof.” It is not possible to misunderstand the agreements and intentions of the parties, and they should both be held *335to abide by them, whether the situation be called an equitable mortgage or a trust.

On petition for rehearing there was a brief over the names of Messrs. Teal, Minor & Winfree, Messrs. Beach, Simon & Nelson and Messrs. Bronaugh & Bronaugh, with an oral argument by Mr. Andrew B. Win-free. Contra, there was a brief over the names of Mr. William C. Hale and Mr. George R. Durham, with an oral argument by Mr. Rale.

The decree is a proper one, and is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.

Rehearing

Denied July 7, 1914.

On Petition for Rehearing.

Mr. Justice Bakin

delivered the opinion of the court.

It is suggested that plaintiffs’ rights in the property are only to the extent of their rights to redeem from the Phegley sale on his mortgage foreclosure, and that, having failed to redeem, they have lost their interest therein, but no such result can happen under the agreement. If plaintiffs had sold under their executions and bid in the property for their own debt, and also the debt of defendant for over $8,000, as provided in the contract, no money was to be paid, but it was to be simply a straw sale, and not a statutory one, with the exception that it probably would have passed an equitable title to the property. Such sale *336was not to affect defendant’s mortgage, nor was it contemplated that the title was to pass, and redemption by Phegley was to be made only in case the plaintiffs actually purchased at the sale for their own debt. In case Phegley should sell on his foreclosure and become the purchaser, as was done, nothing was said about redemption, and plaintiffs were not to be affected by the mortgage sale. The rights of the parties were to continue as though no sale had been made, and, for fear the prior language as to the sale might be misunderstood, the contract adds:

“In other words, * * the respective rights and priorities of the parties hereto shall not be affected by anything done hereunder. ’ ’

Considered in the light of the receipt to the sheriff for the amount of the bid, dated the 15th of June, 1907, and the Phegley contemporaneous statement quoted in the opinion, there is no room left to quibble. There is no duty upon either party to redeem from the other. Phegley’s last statement referred to is a modification of the contract of March 16th, if in any way in conflict therewith. No money was paid at the sale, but the property in Phegley’s hands stood for the money.

The motion is denied.

Aeeirmed. Rehearing Denied.

Me. Chiee Justice McBride, Me. Justice Bean and Me. Justice McNaey concur.