163 P. 94 | Or. | 1917
delivered the opinion of the court.
The most important item contested is the charge of $1,835 for vaults erected in the building. The testimony shows that involved in the transaction in controversy there was a dwelling-house as well as some business property which was occupied by a building devoted to stores on the ground floor. The upper part was used for a time for a Masonic hall. After that order left the premises the second floor was idle for a time and, the principal storeroom becoming vacant, the defendant leased it to an abstract company which required a fireproof vault. The defendant accordingly built one on the ground floor at an expense of $660. Later he secured the United States Land Office as a tenant for the upper story and for the convenience of that institution he tore out the first vault and used it with additional material to erect a two-story vault reaching from the basement through the first story to the room above. The testimony shows that there was no material increase in the net rental after the installation of these vaults. .They were permanently built into the building and the plaintiffs contend that they
“He was at liberty, of course, to wager the cost of the improvements upon his judgment of the outcome, but he could not impose upon plaintiff any obligation to make him whole in case he should lose.”
There are many cases where there was a voidable-foreclosure under which the mortgagee bought and took possession of the property. In such instances, if he has acted in good faith and has a right to believe that he is in very truth the actual owner of the fee-simple title, he may be entitled to his reasonable charges for permanent improvements which increase the value of the property. Instances of such cases are these: Bacon v. Cottrell, 13 Minn. 194 (Gil. 183); Liskey v. Snyder, 66 W. Va. 149 (66 S. E. 702); Gres
“That, for the purpose of avoiding the additional expense and trouble of a foreclosure, it was mutually agreed by and between them the defendant and the said Caro Bros, that, in consideration of the said Caro Bros, executing and delivering unto defendant a good and sufficient warranty deed to the aforesaid premises, thereby saving the costs, and expenses of a foreclosure suit, defendant would extend the time for redemption on said mortgaged premises for a period of four years from said 22d day of July, 1895, and it was mutually agreed by and between the parties that if the plaintiff and said Isadore Caro, partners as Caro Bros., would pay to the defendant the full sum of $16,610, with interest thereon at the rate of 8 per cent together with all taxes assessed against said premises, within four years from said 22d day of July, 1895, then'this defendant would reconvey said premises to said Caro Bros., and that said Caro Bros, might occupy said premises during said extension period and collect the rents from the subtenants, but if said Caro Bros, failed to pay the interest as aforesaid annually, or pay the entire sum of principal, interest, and taxes within four years, then they should surrender the possession thereof to defendant, and said contract should be null and void.”
The defendant must have known that the instrument under which he took possession was a mortgage “for he himself hath said it.”
“A lien upon the real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. In such suit, in addition to the decree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money.”
See, also, Section 335, L. 0. L., declaring that:
“A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law.”
The plumbing contested by the plaintiffs was said to have been done by one W. H. Carroll, who died before the trial. It appears in evidence that the defendant has about twenty buildings of different kinds in Roseburg, all of which required more or less plumbing from time to time. He testified that he kept no separate account for the buildings involved in this suit. He says he caused plumbing to be installed in those structures but he does not pretend to be able to give of his own knowledge its amount or value. The only attempt at proof on this point was the offer of a statement made from the decedent’s books by his father who did not regularly keep them and only made an entry therein now and then at long intervals. The books themselves were not offered in evidence and are not before us. They were not authenticated by any one who kept them or had knowledge of their correctness. Under such circumstances even they would not be admissible in evidence in any event. Beyond that, it is said in Section 790, L. O. L.:
*323 “The entries or other 'writings of a like character of a person deceased or without the state, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as primary evidence of the facts stated therein, in the following cases: (1) When the entry was made against the interest of the person making it; or (2) when it was made in a professional capacity, and in the ordinary course of professional conduct; or (3) when it was made in the performance of a duty specially enjoined by law.”
Following the precedent of Bickel v. Wessinger, 58 Or. 98 (113 Pac. 34), the cause will be remanded to the Circuit Court for the supplemental accounting for receipts and expenditures accruing since December 1, 1914, and the settlement of the resulting balance. The court should then enter a decree to the effect that within a certain reasonable time to be fixed by it the plaintiffs may pay into court the balance thus ascertained with interest thereon at 8 per cent per annum from the date of the decree until paid; that within a certain further reasonable time appointed by the court, the defendant shall, by a good and sufficient deed exe
The decree of the Circuit Court will be modified as indicated, but otherwise affirmed, with costs and disbursements in favor of the plaintiffs.
Modified. Rehearing Denied.