208 P. 583 | Or. | 1922
In May, 1908, the defendant Gr. P. Miller was the owner of a strip of land 30 feet wide and some eight or nine hundred feet long*, lying alongside the right of way of the Oregon-California Railroad then in Douglas County, but now in Lane County owing to a legislative change in the boundaries of the two counties. At that time Miller and his wife conveyed to the defendants Tonole by metes and bounds 500 feet off the east end of the tract. The grantees entered into possession and proceeded to build a house thereon. The undisputed evidence is that they made no survey to locate the boundary line between the original tract and the part sold. When the Tonoles began the erection of the house, it is without contradiction in the testimony that their grantor, Miller, warned them to construct their house far enough to the east to be certain that they were on their own premises, and claimed at that time that they were building upon his land. He also told them then that if the event proved that the house was upon his land, he would keep it and they should not remove it. The Tonoles, however, persisted in building a house at the point they had selected.
Subsequently they mortgaged their realty to the plaintiff John W. Trunnell, representing to him that the house which they had erected was on their own
After all this it was discovered through some surveys made by the state highway commission for an adjacent road that in truth the house was not on the Tonoles’ land but was located at the west of the division line, so that it rested almost entirely upon Miller’s land, the only exception being the major portion of the front porch. At this point, the Trunnells, husband and wife, instituted this suit against the Tonoles, Miller, and the latter’s wife, praying for a decree adjudging that the residence mentioned is a part of the property covered by the mortgage, and passed to the plaintiffs by virtue of the sale and certificate of sheriff’s sale issued thereunder; and that the defendants and all of them be enjoined from interfering with the possession of plaintiffs, unless the property is redeemed from the sale.
The Tonoles answered, admitting the conveyance to them from Miller, and the marital relations of the defendants, but otherwise traversing the complaint except as stated in the answer. They aver in substance that the note and mortgage upon which the suit in foreclosure was based were given as boot in a trade of horses between the husband Tonole and John W. Trunnell, in which Trunnell had fraudulently, represented the qualities of the horse he exchanged with Tonole. This, however, is not important, because it was disregarded by the Circuit Court and no appeal
After a hearing the Circuit Court entered a decree dismissing the suit of the plaintiffs and awarding damages against them in favor of the Tonoles for $50 and for costs, the defendants Miller being required to pay their own costs and disbursements. The plaintiffs appeal.
The contention of the plaintiffs is that the legal effect of the mortgage, considering the representation made by Tonole to Trunnell about the boundary when the mortgage was executed, was to invest the mortgagees with a lien not only npon the land described in the boundaries set out in the mortgage, but also upon the house situated on adjoining premises; and that with like legal effect the foreclosure and sale invested the purchasers with the title to that house.
There is abundant authority for the doctrine that as between the original parties, if, by mistake, one erects his building on the land of another, the land owner on his part may by mandatory- injunction •compel the removal of the building; and on the other hand, the man who erected the building may by proper proceeding have leave to remove the same on payment of any damage accruing to the freehold. All this, however, amounts only to a cause of suit. It is not an estate in real property. It is not con
The suit is an effort to bring within that description a structure not actually there. The mortgage, the terms of which are not attacked, contains no ambiguity, but explicitly describes a certain tract of land. It purports to pledge only that land for the payment of the debt. It does not effect to pledge as security for the liquidation of the debt the cause of suit Tonole may have had against Miller to secure permission to remove the house. The only hold which the mortgagee had upon the land was his mortgage. The only object of that instrument was to secure the payment of the debt. That payment was accomplished by the foreclosure and sale. At the sale the judgment creditor bid the full amount of his decree and took title to what was sold to him. Such a purchaser is affected by the doctrine of caveat emptor, and buys at his peril, taking only what the decree gives him: Hexter v. Schneider, 14 Or. 184 (12 Pac. 668); Kaston v. Storey, 47 Or. 150 (80 Pac. 217). The foreclosure and sale operated as a satisfaction of the debt. They extinguished the mortgage, the only claim the Trunnells had upon the land. Having by its foreclosure and the consequent sale of the land worked out full satisfaction of the debt it secured, that instrument is functus officio, no matter how much besides the land might have been included in its terms.
If the question presented had been one of disputed boundaries, the plaintiffs might have made parties defendant of the Tonoles and the Millers, and if the proper knowledge of the truth could have been imputed to those parties and a mutual mistake established in which the Millers, the Tonoles and the
The time for urging that contention has long since passed, and the plaintiffs, having satisfied their debt by the purchase of the land for the full amount of the claim, have no standing to contend for more.
The doctrine that foreclosure and sale destroy the mortgage is taught in Flanders v. Aumack, 32 Or. 19 (51 Pac. 447); Williams v. Wilson, 42 Or. 299 (70 Pac. 1031); Higgs v. McDuffie, 81 Or. 256 (157 Pac. 794, 158 Pac. 953). As against their effort to include in their mortgage what they thought was there, but which in fact was not, the plaintiffs have allowed the water to run by the mill of opportunity. They are bound by the decree which was framed in their own suit; and, having satisfied their mortgage by buying under the terms of caveat emptor, they are concluded. The decree of the Circuit Court is affirmed. Aeeirmed.
