193 P. 913 | Or. | 1920
Lead Opinion
“In reference to an index to said abstract, will say that the printer of the local paper at Myrtle Point,*386 Oregon, has had little experience in preparing and printing abstracts; that I gave him for a copy an abstract in another case, which was indexed according to rules of the Supreme Court, but in his rush at the last hour he neglected to prepare and insert in said abstract an index, and in my anxiety to get the same served on time I overlooked the index, having in mind at the time the rule (rule 10 [173 Pac. 9]) with reference to a brief, which does not require an index if the printed matter does not cover twenty pages; that appellant is ready and willing to have printed, and will insert in the abstracts served and filed, an index thereto.”.
As this omission has not in any way delayed the case, and appellant has asked leave to file such printed index, we feel justified in excusing the omission, and he will be permitted to file it.
The motion to dismiss will be overruled, upon the condition that appellant shall within ten days from the date of this opinion serve upon defendant’s attorneys a copy of the index tendered in the affidavit and motion for leave so to file, and shall within such time file with the clerk of this court the requisite number of such copies. Failure to comply with this condition will result in a dismissal of the appeal.
Overruled Conditionally.
Opinion on the Merits
Affirmed January 17, 1922.
On the Merits.
(203 Pac. 580.)
For appellant there was a brief over the names of Mr. A. G. Thompson and Mr. George P. Topping, with an oral argument by Mr. Thompson.
For respondents there was a brief over, the names of Mr. Stanley Peddler, Mr. A. H. Derbyshire and Mr. A. S. Hammond, with oral arguments by Mr. Peddler and Mr. Derbyshire.
Department 1.
— According to the admitted allegations of the pleadings, the plaintiff, being indebted to the assignor of the Simpson Estate Company in the sum of $29,695, joined with his wife in a mortgage on certain lands in Coos County to secure a note for that amount. Afterwards, having become the owner of the note and mortgage, the defendant Simpson Estate Company began a suit to foreclose
There appears in evidence the deed from the plaintiff and his wife to the Simpson Estate Company, conveying the property to the latter, as stated, containing the covenant of the present plaintiff to warrant and defend the property against all encumbrances, except unpaid taxes and the mortgage for $29,695, dated May 27, 1915. At the same time, as part of the same transaction, the defendant Simpson Estate Company executed and delivered to the plaintiff an option in writing, giving to the plaintiff the sole right and choice to buy the real property in
“Know all men by these presents: That we, Cecil C. Carter and Alta E. Carter, of Coos County, State of Oregon, for and in consideration of the sum of one dollar, lawful money of the United States of America, to us in hand paid by Simpson Estate Company, a corporation, organized and existing under and by virtue of the laws of the State of California, have remised, released and forever discharged, and by these presents do, for ourselves, our heirs, executors and administrators, release and forever discharge the said Simpson Estate Company and also Simpson Lumber Company, a corporation, organized under the laws of the State of California, and each of them, from all claims and demands of every kind, nature and character, which against the said Simpson Estate Company or the said Simpson Lumber Company, or either of them, we or either of us ever had or now have,' for, upon or by reason of any' matter, cause or thing whatsoever, from the beginning of the world to the date of'these presents.”
In its tenderness for debtors, equity has gone to great lengths and has firmly established the doctrine that a deed absolute on its face may be shown by parol to be really and truly a mortgage to secure the payment of a debt from the grantor to the grantee. In other words, for that purpose it is competent to prove by parol a defeasance of a prima facie abso
“Did you receive back your note and mortgage?
“A. That is a matter that I don’t have any remembrance of getting the mortgage back.
“Q. Did you receive back that note?
“A. The attorney might have gotten it, but I do not remember about that.
“Q. Do you know whether or not the note was released to youi attorneys?
“A. No, I do not.
“Q. Do you know whether the mortgage was released of record?
“A. I think the record shows that it was released later on.”
He testifies that he paid nothing after the lease was given except the rent. He also testifies that he made some improvements on the land with the consent of the Simpson Estate Company, the expense of which was deducted from the rent. Although he says his attorney did not turn over to him any papers in regard to releasing the mortgage, when asked if the attorney ever turned over to him any note, he answered, “No, sir; not at that time.” On the other hand, the attorney who was conducting the foreclosure suit on behalf of the Simpson Estate Company testi
The effect of this testimony is, that the defendant company gave np the note and mortgage. It has no means of enforcing the claim against the plaintiff, having executed and delivered the satisfaction of the mortgage and given np the note. Another circumstance indicating that the instrument denominated an option was really what it purported on its face to be, is that at the time of the execution of the option to this plaintiff to buy the land at $33,500, there was due on the note and mortgage the sum of $35,178.68, computing the interest at 6 per cent per annum on the original note from its date until the date of the option. All of these circumstances indicate the extinction of the debt, so that the company cannot enforce the same against the plaintiff. As to the further extension of the time to February 1, 1920, the plaintiff himself testifies that before the expiration of the option on December 31, 1919, he endeavored to get a further extension of time, but that in each instance he was refused by the defendant company’s representatives.
The record has been carefully read and reread, with a view of ascertaining any basis for- the plaintiff’s relief, but none can legally be found. The decree must be affirmed.
Affirmed. Objections to Cost Bill Overruled.