54 P. 205 | Or. | 1898
delivered the opinion.
This is a suit to foreclose a mortgage, and the only question for our consideration is whether the court below erred in dismissing the suit as to the Western & Hawaiian Investment Company, Limited. The facts necessary to an understanding of the question, as they appear from the pleadings, are that in July, 1891, the defendant Vina Gates and her husband mortgaged to the plaintiff’s assignor certain real property, including lots 1 and 2 in section 29, township 3 south, of range 39 east, and on April 27, 1892, conveyed the same to the defendant No-dine by a deed containing a stipulation wherein he assumed and agreed to pay the mortgage as part of the purchase price. As shown by the public surveys, the premises referred to are bounded on the south by Tule Lake, which thé plaintiff claims and alleges to be a non-navigable body of water, but which, according to defend
It is familiar doctrine that a suit to foreclose a mortgage is not an appropriate proceeding in which to litigate questions of adverse or paramount title (2 Jones, Mortg. 1445 ; San Francisco v. Lawton, 18 Cal. 465, 79 Am. Dec. 187; Banning v. Bradford, 21 Minn. 308, 18 Am. Rep. 398; Summers v. Bromley, 28 Mich. 125) ; and it is sought to invoke this principle in support of the rulings of the court below. But the question here presented is of an altogether different character. It is practically, as we view it, a controversy between mortgagees claiming under the same mortgagor, and not adversely to him. It is true, plaintiff’s mortgage was not executed by defendant Nodine ; but, by the terms of the conveyance from Gates, he assumed and agreed to pay it as part of the purchase price, and thus made it his own as effectually as if he had executed it himself. Miles v. Miles, 6 Or. 266 (25 Am. Rep. 322) ; Walker v. Goldsmith, 7 Or. 161; Alvord v. Spring Valley Gold Co., 106 Cal. 547, (40 Pac. 27) ; Burbank v. Roots, 4 Colo. App. 197, (35 Pac. 276) ; Clark v. Fisk, 9 Utah, 97, (33 Pac. 248). So that
Reversed.