104 P. 978 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
1. In support of the points insisted upon by the demurrer, our attention is called to the conceding facts in each of the cases to the effect that it appears that the mortgages involved were given to two mortgagees, and to secure separate indebtedness represented by separate and individual promissory notes, by reason of which it is argued that the plaintiffs cannot be joined in the foreclosure proceedings. The defense thus intended to be presented, as we gather it from the record and from the argument, is that_there is not a defect, but a misjoinder, of parties plaintiff. The first ground assigned in the demurrer is not insisted upon, and, furthermore, is untenable. State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791: 53 Pac. 1071: 41 L. R. A. 692). While no provision is made in the statute for'-demurring on the grounds of misjoinder of parties plaintiff under that particular designation, the demurrer is sufficient to present what is equivalent to that defense for the consideration of the trial and appellate courts. Pomeroys’ Code Rem. (3 ed.), §212; Smith v. Day, 39 Or. 531, 539 (64 Pac. 812: 65 Pac. 1055).
2. The sole question therefore is whether, under the conceded facts as disclosed by the complaints, the plain
3. It is argued, however, that the ownership in the notes is separate and distinct from that in the mortgage, and that the notes may be assigned independent of the mortgage. Whether such notes may be assigned inde
Some of the authorities cited from other jurisdictions tend to support the theory advanced by defendant’s counsel on the points presented; but the conclusions there announced appear to be based upon statutes different from ours. Our statute is clear and explicit upon the subject, and we believe decisive of the controversy.
The judgment of the trial court is affirmed.
Affirmed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
4. It is ably argued in support of the petition for rehearing that we are in error in assuming that plaintiffs
6. The mortgage in the case at bar, being the subject of the suit, or the res, giving the court jurisdiction, and each of the plaintiffs being interested “in the subject of the suit, and in obtaining of the relief demanded,” they may be joined as plaintiffs, as expressly stated in Section-394 of the Code, unless their interests, as indicated in the last sentence of the section cited, are claimed adversely to each other. That they do not claim adversely to each other is manifest from the fact that they consent to join as plaintiffs, in doing which they impliedly consent to share pro rata in any proceedings arising out of the foreclosure of the mortgage. As stated in 27 Cyc. 1147:
“Where a mortgage is given to two mortgagees, jointly, but to secure separate debts, they do not take as joint tenants, but as tenants in common, and they will take, not necessarily by moities, but undivided interests proportioned to their respective claims.”
And a court of equity in pursuance of the chancery rule of doing complete equity to all parties before the court, in the foreclosure decree may, when warranted by the pleadings and proof, determine all questions and claims arising between different parties to the suit as to the ownership of the debt, liability for or exoneration from it, the proportions in which it should be shared, or priority or preference; and these rights may be determined as easily and completely where the mortgagees are co-plaintiffs as where but one institutes the suit, making his co-mortgagees defendants. 27 Cyc. 1644. The con
7. It is next argued that under Section 5339, B. & C. Comp., a deficiency judgment cannot be recovered against the defendant. This section of the Code provides:
“No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured; and when there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.”
Appellant’s contention on this point is based upon the assumption that there is no express covenant contained in the mortgage for the payment of the debt. This assumption, however, overlooks the fact that the mortgage was given to secure the payment of promissory notes, such notes containing an express agreement to pay the sums specified therein, with interest. It appears from the complaint that the notes constituted a part of the mortgage, from which it necessarily follows they become express covenants for the payment of the debt, and are within the section of the statute quoted. 27 Cyc.1746.
Counsel cites Myer v. Beal, 5 Or. 130, and Kramer v. Wilson, 49 Or. 333 (90 Pac. 183), in support of their contention. In the first case mentioned a promissory
The petition is denied.
Affirmed: Rehearing Denied.