58 P. 863 | Or. | 1899
delivered the opinion of the court.
This is a suit brought by the purchasers at a sale under a decree foreclosing a mortgage, to require a junior lien creditor who was not a party to the foreclosure suit, and who subsequently levied upon the property under his judgment, and at a sale became the purchaser, to redeem. The court below’ entered a decree of strict foreclosure, requiring the defendant to redeem within four months, by the payment of the purchase price, with interest, and, in the event of its failure to comply therewith, that it be forever barred from making such redemption. From this decree the defendant appeals, claiming that the remedy in such case is by a reforeclosure of the original mortgage, a resale of the premises, and distribution of the proceeds according to the priorities of the respective parties.
The question of the proper procedure to bar the rights of a judgment lien creditor, who was not made a party to the foreclosure of a prior mortgage, was considered in the case of Sellwood v. Gray, 11 Or. 534 (5 Pac. 196), and it was held that a suit to compel him to redeem within a reasonable time or be barred and foreclosed was the proper practice, and this has since been recognized as the rule. Thus, in Osborn v. Logus, 28 Or. 302, 310 (37 Pac. 456, 38 Pac. 190, and 42 Pac. 997, 998), Mr. Justice Wolverton, in discussing the question as to whether subsequent lien creditors are necessary parties to a suit to foreclose a mechanic’s lien, after quoting the statute, says : “No one will contend, under this statute, that, without the presence of a subsequent lienor as a party defendant, the suit
