217 P. 836 | Or. | 1923
Arizona Barnes, plaintiff herein, being the owner and in the possession of two separate parcels of land located more than six miles apart, upon which defendants George W. Anderson and Flora E. Anderson had theretofore given a mortgage in favor of the defendant T. J. Anderson as security for money loaned, instituted this suit to obtain a decree confirming her title in, and right to the possession of, the mortgaged premises, as against the above-named mortgagee, who had become a purchaser of the land at foreclosure sale under the mortgage.
From a decree dismissing her suit, plaintiff appeals.
The instant case is the last of a series of legal contests, in each of which the plaintiff herein has endeavored to defend or maintain her title, or that of her immediate grantor, to the above-mentioned lands against claims of ownership asserted by the defendant George "W. Anderson or his grantees. Plaintiff acquired title to the lands in controversy from her son, George Austin Bowsman, who until April 10, 1910, was a minor.
The first of such contests to occupy the attention of this court was an action of ejectment brought by Anderson against the plaintiff and her said son, George Austin Bowsman, then a minor. That action involved only one of the tracts of land covered by the above-mentioned mortgage, and therein it was determined that Anderson was the owner in fee simple of that tract of land and entitled to the immediate possession thereof, as against plaintiff in the instant suit and her said minor son: Anderson v. McClellan, 54 Or. 206 (102 Pac. 1015).
George W. Anderson never succeeded in obtaining complete possession of the land by virtue of the
Upon the twenty-eighth day of September, 1911, George Austin Bowsman, having attained his majority, conveyed the lands to his mother, the plaintiff in the instant suit.
“That the defendants * * George A. Bowsman and Arizona Barnes, formerly Arizona McLellan, have or claim to have some right, title, interest, estate or lien in, to or upon the said real property herein described or some part thereof, but if any such they have, or any of them have, the same is subsequent in time and inferior in right to the lien of this plaintiff upon said real property by virtue of said mortgage.”
The plaintiff in the instant suit appeared in the foreclosure suit, and filed an answer in which, after putting in issue by appropriate denials, the allegations of the mortgagee in respect to the execution of the note and mortgage, pleaded affirmatively the facts showing that paramount title to the premises was vested in. herself, and in that connection set up, with some elaboration, the facts substantially as found by this court in Bowsman v. Anderson, supplemented by charges that the mortgagee received his mortgage with knowledge and notice of those facts and of the title and interest of plaintiff and her grantor in the mortgaged premises. She also alleged as a separate answer that the mortgage was executed without consideration and for the purpose of defrauding her grantor. The foregoing defenses were followed by a prayer that the title to the lands be determined and adjudicated in favor of the answering defendant, plaintiff here, and for cancellation of the mortgage sought to be foreclosed.
A decree in the usual form was entered in the foreclosure suit, foreclosing the mortgage, and directing a sale of the property to satisfy the same, and declaring that the defendants in that suit, and each of them, were “forever barred and foreclosed of all right, title and interest and equity of redemption in said mortgaged premises so sold or any part thereof.” The issue of paramount title was not mentioned or referred to in the decree in the foreclosure suit. The instant plaintiff did not appeal from that decree, but instead, commenced this suit to halt and prevent the ultimate enforcement of the decree against the lands covered by the mortgage.
The averments in the complaint of the plaintiff in the instant suit, so far as they concern her title and claim to the real property in suit and the connection of the defendant T. J. Anderson therewith by virtue of his said mortgage, are substantially the same as those set forth by her in her answer in the foreclosure suit. In anticipation of a plea of former adjudication, the complaint contains this further averment:
“That, when said foreclosure suit was commenced, this plaintiff was not made a party thereto, but afterwards was brought in as a party defendant and appeared in said suit and filed her answer therein and offered to prove her title to said lands herein-*508 before described and fraudulently included in said mortgage and to show that said mortgage was illegal and void, as far as plaintiff’s said lands were concerned, but the plaintiff alleges that Judge of said court refused to allow her to introduce her evidence of title or to introduce evidence of the fraudulent character of the pretended mortgage of the said T. J. Anderson, and refused to allow this defendant to prove that she had a title in fee simple to said premises paramount to the said mortgage and that the judge of said court informed this plaintiff’s attorneys during the trial that all he was going to try was the question whether or not the plaintiff in that suit had a lien which said plaintiff was the said T. J. Anderson, and the trial court refused in said suit to try the question of whether this plaintiff defendant therein, had a title to the lands involved in said suit, and involved herein, paramount to the title or interest of the said T. J. Anderson by virtue of his said mortgage, and he rendered a decision and decree in said court, which decree does not mention the title or interest of this plaintiff in said lands or any part thereof, but proceeds simply to foreclose the pretended mortgage, which the said T. J. Anderson claimed to have against said property, that the said court in the trial of said cause, ruled that the title to the real premises therein involved and involved herein, could not be tried in the foreclosure of a mortgage and refused to consider said issue * * .”
The defendant T. J. Anderson, in his answer in the instant suit, denies the allegation above set out, and as an affirmative defense pleads the proceedings and decree in the foreclosure suit, alleging that the same constitute a former adjudication between the parties of all the matters which the plaintiff seeks to have tried in this suit.
The trial court, the judge presiding who tried the foreclosure suit, found “that all the matters and things complained of by the plaintiff herein were adjudicated and determined” in the foreclosure suit.
For the reason that equity has no original jurisdiction of contests concerning legal titles, it is generally held that in the absence of related facts that call for the exercise of equitable jurisdiction in respect thereto, the question of title, adverse or paramount, cannot be litigated in a suit to foreclose a mortgage: Farmers’ Nat. Bank v. Gates, 33 Or. 388 (54 Pac. 205, 72 Am. St. Rep. 724); Edgar v. Golden, 36 Or. 448, 452 (48 Pac. 1118, 60 Pac. 2); Gennes v. Peterson, 54 Or. 378 (103 Pac. 515); Johnson v. White, 60 Or. 611 (112 Pac. 1083, 119 Pac. 769); Kreinbring v. Mathews, 81 Or. 243, 247 (159 Pac. 75); 19 R. C. L. 544.
But where one is made a defendant in a foreclosure suit, and by answer sets up paramount title, praying that such title be adjudicated and determined in that suit, and goes to trial upon that issue, he is bound by the resulting decree, unless the same is set aside upon appeal: Jones on Mortgages (7 ed.), §1445; Johnston et al. v. San Francisco Savings Union, 75 Cal 134 (16 Pac. 753, 7 Am. St. Rep. 129); Fletcher v. Barber, 82 Hun, 405 (31 N. Y. Supp. 239); Goebel v. Iffla, 111 N. Y. 170 (18 N. E. 649); Lego v. Medley, 79 Wis. 211 (48 N. W. 375, 24 Am. St. Rep. 706).
If, then, a hearing and decision upon the merits of plaintiff’s claim of paramount title, and the effect
The decree in the foreclosure suit, on its face, does not disclose whether or not the issue of paramount title was decided. In that situation there was more than one issue upon which that decree might have been founded. The entire record, and parol evidence as well, may be considered to ascertain what issue or issues were determined: Gentry v. Pacific Livestock Co., 45 Or. 233 (77 Pac. 115); Black on Judgments, § 624.
When the foreclosure suit came on for trial, an informal discussion was had between the attorneys for the parties and the Circuit Judge, respecting the issue of paramount title, which had been introduced into the case by the answer. The Circuit Judge expressed the opinion that the issue mentioned generally was not a proper matter to be tried in a foreclosure suit under the decisions of this court. Thereupon the counsel for defendant there, plaintiff in the instant case, suggested that the plaintiff in the foreclosure suit dismiss the suit. The latter declined to do so, stating that he was not responsible for the contents of the answer.
The trial in the foreclosure suit thereupon proceeded, and the plaintiff therein introduced evidence to establish the lien of his mortgage and his right
It also appears from the admissions in the pleadings in the foreclosure suit, and the evidence introduced in support of the allegations therein of paramount title, that such title in the claimant was established, a condition which absolutely required the trial court to consider the question of paramount title, and whether the existence of the same as a matter of law, defeated the mortgage sought to be foreclosed. Indeed, it appears from the findings made in that suit, that the court recognized that paramount title to the premises was vested in the plaintiff herein, but the court further found that the mortgage was given and recorded before the suit of Bowsman
Based upon the last-mentioned finding, the court declared as a matter of law, that the mortgage was valid and a lien upon the mortgaged premises, superior to the equity of plaintiff’s grantor, which existed at the time the mortgage was given; also that the superior lien of the mortgage was not affected by the subsequent decree in Bowsman v. Anderson, whereby the judgment in ejectment, upon which the mortgagee relied; was vacated.
In making the above finding of fact, the court evidently assumed that the judgment in ejectment covered all the mortgaged lands, when in fact it covered but one parcel thereof, and on that account the court may have erred in its conclusions of law. If so, an appeal was the exclusive remedy for correction of that error.
Both suits were tried by the same judge, who in the instant case, made the unequivocal declaration in a finding of fact, that “all the matters and things complained of by the plaintiff herein were adjudicated and determined” in the foreclosure suit.
The finding so made is entitled to much weight in determining the question of whether the merits of plaintiff’s claim of paramount title were tried in the foreclosure suit.
The record in the foreclosure suit shows beyond question that identically the same issues concerning plaintiff’s title to the land in question as are pre
‘‘"Where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, as a general rule, is regarded as binding in every other court.” Nations v. Johnson, 24 How. (U. S.) 195, 202, 16 L. Ed. 628, 631, see, also, Rose’s U. S. Notes).
If the foreclosure decree was erroneous, the obvious remedy of the plaintiff, defendant there, and perhaps her sole remedy for correction of the error, was an appeal to this court. She could not waive her right of appeal and maintain an independent suit upon the same claim, disregarding that decree.
When summoned as a defendant in the foreclosure suit, plaintiff might have made default, or, if so advised, might have answered setting up her adverse
The decree of the Circuit Court is affirmed.
Affirmed.