14 Or. 39 | Or. | 1886
The record herein shows that the appellant, as administrator of the estate of Philip Baltimore, deceased, commenced a suit in the Circuit Court for Linn County, to foreclose a certain bond for a deed. lie alleged in his complaint, after alleging the decease of said Baltimore and of his appointment as administrator of the estate of the deceased, that on the 19th day of September, 1877, said Estelle -M. Howard executed to Thomas Monteith her promissory note for five hundred dollars, with ten per cent, interest per annum from date, payable as follows: The interest on or before one year from the date thereof, one hundred dollars of the principal, and all the interest due on or before eighteen months from the date thereof, and a like payment of one hundred of the principal, together with all interest due, to be made on or before the expiration of each six months thereafter, until the whole sum of five hundred dollars and interest was paid; that at the same time the said Monteith executed to the said Estelle M. Howard a bond with a penalty of one thousand dollars, conditioned that it should be void if said Monteith executed to her a deed to lots 5 and 6 in block No. 90, in the city of Albany, in Linn County, Oregon, on or before the 1st day of January, 1884, provided she should on or before that date pay to him the amount
It further appears from said record that all the respondents except said Estelle M. Howard filed a demurrer to the complaint, which having been overruled, two of them, said Strahan and D. B. Monteith, filed separate answers. The former denied that he was ready or willing, or would at all, make, ex
D. B. Monteith, in his answer, denied that his interest or claim in the premises was subsequent or subject to that of the appellant or of the said Estelle M. Howard, or that it was acquired with any knowledge or notice of any interest of the appellant, except that he had knowledge of the giving of the bond set forth in the complaint; and that Estelle M.. Howard refused to pay said note or any part thereof, except thirty dollars. And he further alleged in his answer, that before the assignment of the note by Thomas Monteith to the appellant, he executed with the said Thomas Monteith, as surety only, for the sole use and benefit of said Thomas Monteith, four certain promissory notes; one of them Januai’y 1st, 1883, for $5,000, with interest at ten per cent, from date, payable one day after date; two of them October 1st, 1882, for $6,000 each, with interest at the same rate, and payable one day after date; and the other on the same day for $5,000, bearing the same rate of interest, and payable at the same time ; that to secure him against payment of said notes, the said Thomas Monteith and wife, on the 2d day of February, 1884, before the assignment of the note to appellant, executed under their hands and seals a mortgage on certain premises therein described, which included said lots; that said mortgage was duly acknowledged so as to entitle it to record, and the same was,
The case was heard upon these pleadings, and the court decreed a dismissal of the complaint, which is the decree appealed from.
The appellant’s counsel contends- that the effect of the bond executed by Thomas Monteith to Estelle M. Howard transferred the title in equity to the lots from the former to the latter; that he held the legal title merely as a security for the payment of the note; and that when he transferred the note to the appellant, it entitled the latter to the benefit of the security ; that the transaction between said Monteith and Estelle M. Howard was, in effect, a mortgage in favor of the former upon the premises in question, to secure the purchase money, and that when the note was transferred, it was as effectual to transfer the security as the assignment of a note secured by a mortgage would be to transfer the mortgage. It occurred to me upon the hearing that said counsel’s position was entirely correct in principle, and I am still of that opinion; but conceding this to be true, what security had Thomas Monteith, growing out of the transaction, to transfer, when he assigned the note to the appellant? He had at the time executed the mortgage to said D. B. Monteith for about $19,000, which covered the premises in question. That mortgage certainly extended to the security he held against the lots, and, it seems to me, put it out of his power to enforce it to the extent claimed herein. lie could not, on said 5th day of February, 1884, at the time he assigned the note to appellant, have gone into a
I have not considered the effect of the debt to Hannon, and its reduction to a judgment, as important, for it does not appear when the judgment was obtained; nor the assignment to Strahan for the benefit of creditors, as that was made after the assignment of the note to appellant; yet I am not prepared to say that they were not circumstances that would interfere with the appellant’s right to the relief claimed, though they might not affect his right to subject the lots to the payment of the note. I think, beyond question, that the appellant took the note and the rights incident thereto subject to the mortgage to said D. B. Monteith. The mortgage, it is true, was not then recorded; was not recorded until the 11th day of February, 1881, nine days after it was executed, and six days after the assignment of the note ; but the note being past due at the time it was signed, was a sufficient circumstance to put the appellant upon inquiry when he took it. I think, therefore, beyond question, that the appellant’s right under the assignment was subordinate to that of 13. B. Monteith under his said mortgage, though the mortgage was not recorded until after the assignment was made. But I cannot see any reason why the right under the assignment should not take precedence to that made to Strahan for the benefit of his creditors. It had then vested in the appellant, and it was not in the power of Thomas Monteith to divest himself of it. If Hannon’s judgment had been docketed at the time, it would have been a lien upon the lots, and would have vested in him the right to have had them applied, subject to the rights of Estelle M. Howard, to the payment of it; but that fact does not appear.
Nor has there been any neglect shown upon the part of appellant forfeiting his right. There was no record notice of it, nor could there have been. It. was not of such character that it could have been recorded, and the recording act does not