Churchill v. Meade

171 P. 565 | Or. | 1918

BURNETT, J.

1. The plaintiff assigns as violations of the mortgage and upon which he bases his right to foreclose, that the defendants have neither paid the mortgage of $1,000 to the state land board encumbering the land, nor the interest thereon, nor have they reduced the Multnomah County mortgage to $1,600, and moreover they have not furnished to the mortgagee or the plaintiff any evidence of doing either of those things they were required to do. The third and fourth assignments relate to the failure of the defendants to pay the taxes for the years 1913 and 1915. It is unnecessary to consider more of these assignments than the first two. The only showing made by the defendants about the reduction of the Multnomah County mortgage is in substance as follows: The defendant, Minnie A. Meade, testified that on August 5,1916, being more than one year after the date of the mortgage in suit, she applied to John E. Turner who signed himself “Administrator, C. W. Miller Estate,” and procured from him a receipt for “$290, Act. Interest due 1915 and $150.00 Principal on $1750 notes.” The defendants do not pretend that she ever exhibited this receipt to either the mortgagee or the plaintiff. Besides this, the record shows that it appeared for the first time at the trial. Moreover, she testified that she did not pay any money, nor give any note or check for the amount represented in the receipt. She does not claim that either the plaintiff or the original mortgagee had any knowledge of such an arrangement or consented that it should operate as a reduction of the mortgage. The defendants argue that anything which parties agree to may be considered as payments; but that principle, while possibly true as to the immediate parties to such a scheme, does not affect those concerned in the present litigation. They are the ones who are interested in the observance of the conditions of the mortgage under consideration here. As against the plaintiff nothing has been shown which would prevent the collection of the full amount of tHe Multnomah mortgage for it is clear that nothing was actually paid thereon.

2. The mortgage to the state land board was given to secure a note dated September 4, 1906, due one year after date with interest at six per cent per annum, payable semi-annually on the first day of January and the first day of July in each year thereafter. The defendants have paid no more than the interest and they seek to charge upon the plaintiff the indulgence of the state land board in not foreclosing the mortgage so as to avoid the effect of their covenant to pay the same, and they do not plead that any new agreement was made between themselves and the plaintiff or the original mortgagee to that end. The note and mortgage to the state land board are clearly due according to their terms and in the absence of any further contract between the present parties it was incumbent upon the defendants at once to pay that debt. Confessedly they have not done this.

Each of these defaults constitutes a breach of the covenants of their mortgage and by its terms the holder thereof is entitled to foreclose the same for the full amount due upon the note and their agreements set out therein. These are the cold terms of the mortgage which they admit they made, but which the court cannot unmake for them. A great deal of rancor is manifest in the pleadings and a very large part of the-testimony is taken up in the rehearsal of the altercations of the parties, but all that cannot affect the law of the ease. It is unnecessary to consider other reasons urged in support of the foreclosure. It is sufficient to say that the decree of the Circuit Court is affirmed with this modification that neither party shall be allowed to recover costs or disbursements from the other.

Affirmed. Neither Party Recover Costs.

McBride, C. J., Benson and Harris, JJ., concur.