197 P. 261 | Or. | 1921
Again, we find the defendant, after recounting the amounts Mrs. Cummins owed him upon some previous mortgages which he held upon the place, when he was asked, “Did you pay her any money besides what she owed you?” saying in his testimony:
“Yes, enough to make up the difference; enough to make what they owed me $4,000.”
Further he said: “I just simply took the property and cleared up the debt.” He also testified to the effect that part of the $4,000 loan which he made her was represented by the $2,000 which was paid. He was asked, “And you required that the taxes be cleared up out of the money, didn’t you?” and answered :
“Yes; they were to clear the record. •
“Q. So that you would have a mortgage lien upon the property for $4,000, treating the deed as a mortgage?
“A. Yes.”
The situation, then, at the time the parties came to make the oral agreement in the spring of 1901, was clearly that of a mortgage, the terms of which the mortgagor had failed to meet. The mortgagee at that time, if he could do so peaceably, could enter upon the possession of the premises and retain them until the rents, issues, and profits thereof should repay the debt, or the same was otherwise liquidated. The defendant is not disputed in any wise in his testimony about the oral agreement had in the spring of 1901. He declares on oath thus:
*194 “Mrs. Cummins came up and she wanted — she said she hadn’t got anything, practically speaking, for the place — enough to pay the interest or taxes; hut she said she had no encouragement to show, even if I let it run over, or words to that effect. She wanted to give the thing up. She didn’t want to be bothered with it, and didn’t want me to sue her or words- along that way, and wanted me to take the place over, and I finally agreed to take the place over from her. * * She wanted me to take the place and relieve her. So I took it. That I wouldn’t bring any suit against her and have trouble. She wasn’t able to pay it. She gave me possession of it. She said she wanted to give me possession of it, and wanted to be relieved of it, and wanted me to accept it, and I agreed to. * * She wanted to be released, and wanted to relieve me, to close up the transaction, the whole transaction. I agreed to take possession of it, and did take possession of it. * * I certainly did claim to be the owner.
“Q. I will ask you directly, when you took possession of the place, did you take possession as mortgagee?
“A. No, sir. I didn’t so understand it at all. I just simply took it and cleared up the debt. * * I have just held it the same as if I had bought it of somebody else.”
The law governing this case is well settled by Caro v. Wollenberg, 68 Or. 420 (136 Pac. 866.) The principle affecting the present contention is there laid down in this language by Mr. Justice Bean:-
“When a mortgagee enters into possession of the mortgaged property under a void foreclosure, he is presumed to hold as mortgagee in possession, and limitation does not run in his favor, or in favor of his grantees, against a suit for redemption and for an accounting by the mortgagor, which is a continuing right, unless there is an actual notice to the mortgagor that they claim to hold in some other right adverse to the mortgage.”
Caro v. Wollenberg, 68 Or. 420 (136 Pac. 886, [S. C., 83 Or. 311, 163 Pac. 94]), is to be distinguished as to the facts from the instant suit in this: There the erstwhile mortgagee avowed that he was claiming under the deed, which as he said was given in lieu of the former mortgage with a defeasance effective on payment of the old debt, which made the deed unquestionably a mortgage. Claiming as he did under such an instrument, and not otherwise, his possession was not adverse, as pointed out in the opinion of Mr. Justice Bean. Here the defendant claims, not under the deed, which amounts to a mortgage, but under the subsequent parol agreement that he should from thenceforward be the owner of the land. This, indeed, did not foreclose the mortgage or convey the land to him, but it did operate to initiate an adverse claim of ownership, which, coupled with his subsequent hostile possession for more than ten years, served to vest title in him in fee simple, under the precedents cited above.
The result is that the decree of the Circuit Court must be affirmed. Affirmed.