109 P. 1118 | Or. | 1910
Opinion on the Merits
On the Merits.
[110 Pac. 975.]
delivered the opinion of the court.
Although the appellant denied in her answer the legal effect of the contracts set forth in the complaint — that is, that they constituted an equitable mortgage — yet at the outset of her brief she concedes that the position taken by plaintiffs is correct, but she contends, first, that under the amended complaint the court cannot properly give plaintiffs judgment against her for any amount, because
If plaintiffs jointly, by the fault or negligence of the trustee, have incurred any loss or expenses in causing the assessment work to be done necessary to preserve the title in the trustee and to maintain the efficiency of their security, they would without doubt be entitled to be reimbursed out of the trust estate, and to tack the amount of such loss or expenses on to their liens; but the amounts which have been allowed in the decree are personal to Anderson by the terms of the written agreement, and were to be paid by Phegley. If there is any recovery for such claims, it must be by Anderson alone in a separate action against the party who agreed to make payment, and not by plaintiffs jointly.
The decree will therefore be reversed, and the suit dismissed, without prejudice to plaintiffs’ rights to institute another suit. Reversed : Suit Dismissed.
Lead Opinion
Decided June 28, 1910.
On Motion to Dismiss.
Opinion
This suit was begun to foreclose an equitable mortgage founded on certain agreements respecting mining claims, and the defendants appealed from an adverse decree. The plaintiff’s counsel have moved to dismiss the appeal, on the ground that the contract in question expired by limitation March 16, 1910, thereby leaving for consideration no question but that of costs and disbursements, and relegating the parties to their respective actions at law for a redress of their grievances. We conclude that the motion should be denied for the present, with leave to renew it at the trial of this cause on the merits; and it is so ordered. Motion Denied.