169 P. 350 | Or. | 1917
delivered the opinion of the court.
“Now the result of all this is that the owner of the equity of redemption is an indispensable party, and without him the suit cannot proceed. Subsequent lienors are considered necessary parties but their absence from the record does not perforce of that fact render the proceeding a nullity; but interested parties may require that they be brought in for their protection, and proper parties may be brought in if deemed necessary. The owner, of course, is an indispensable party and his absence would be fatal to the proceeding; a decree without him would be a nullity.”
In Byrd v. Cooper, 69 Or. 406, 410 (139 Pac. 104), in an opinion by Mr. Justice Moore the opinion in Osborn v. Logus, supra, is thus discussed:
“What was there said about the owner being an indispensable party was evidently intended to be used by way of illustration and comparison. But however that may be it is believed that the language so employed is a correct declaration of the law applicable to the question here involved. Prom this assertion it follows that if the owner of real property whose conveyance of the title thereto is duly recorded at the time a suit is brought to foreclose a mechanic’s lien attaching to the premises, is not then made a party or brought in within the time limited by the statute therefor, any decree that might be rendered in that suit is not binding on him.”
The instant case is somewhat different from Sellwood v. Gray, 11 Or. 534 (5 Pac. 196). There the
“"When, therefore, the plaintiff instituted his suit of foreclosure against Carter, the mortgagor, and obtained a decree for the sale of the property, without making the defendant,' Cray, a party, the proceeding, as to him, was a nullity. But the sale effected some important results. Except as to the defendant, Cray, who was not bound by it, it had operated to cut off the right of the mortgagor to redeem, and to change the ownership of the property from the mortgagor to the mortgagee, who had become the purchaser. ’ ’
The distinction is that here the owner of the estate is not before us; while there he was a party to the suit, and hence the title was in the power of the court. Not so, however, in the present juncture in which the plaintiff asks us to do the vain thing of ordering a sale of the land without having jurisdiction of Thorsen, its owner. "While we might order a sale of his encumbered property if we had jurisdiction of him and not of the junior encumbrancers, as in the Sellwood foreclosure, which, however, would not affect them, the precept will not work the other way and allow us to dispose of his land without his consent or giving him his day in court on that question, although all subsequent lienholders are in court.
“The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in.”
It is true that in Wilson v. Tarter, 22 Or. 504 (30 Pac. 499), a part owner of the land included in the mortgage was not made a party defendant, but the foreclosure proceeded to sale. Afterwards the missing title holder was allowed to maintain a suit to compel the mortgagee to elect between redemption of the whole premises or make conveyance of the parcel to the plaintiff. We are not required, however, to visit such complication upon the present litigants. Neither would it be seemly for us to launch upon the business community a title which would be a nullity because the owner of the fee was not a party to the decree directing the sale of the realty involved. As a proper solution of the case, therefore, the decree of the trial court will be reversed and the cause remanded with directions to that tribunal to cause the owner of the fee and any other necessary parties to be brought in for the purpose of making complete foreclosure in this suit.
Reversed and Remanded With Directions.