153 P. 486 | Or. | 1915
delivered the opinion of the court.
It appears that on August 12, 1889, Frederick Shetter and Emily G. Shetter, his wife, deeded the real property in question to one Thomas Harkins, by a general warranty deed absolute upon its face, which was intended by the parties and was in force and effect a mortgage to secure the payment of the sum of $3,000, with interest at 8 per cent from that date. The deed was duly recorded in the records of Coos County. Frederick Shetter paid the interest accruing on the lien up to April 1,1898, and also paid all the taxes assessed against the property up to the time of his death on April 23, 3902. In March, 1903, Otto Shetter was appointed sole executor of the last will and testament of Frederick Shetter, deceased, and thereafter continued to pay the taxes on the property up to and including the year 1905.
On December 19, 1903, Thomas Harkins and Kate Harkins, his wife, conveyed the real estate in controversy to Edward F. Niehaus, husband of the plaintiff, to secure the payment of certain advances made by
7. The lower court did not foreclose the declared mortgage, and left that matter for another proceeding. We are of the opinion, however, that the controversy should be fully adjusted in this suit. For that purpose, the cause will be remanded to the lower court, where the parties should be allowed to take all such proceedings as may be necessary to determine the amount of the lien upon the land and complete the foreclosure of the mortgage deed. The costs upon this
Reversed and Remanded. '