181 P. 7 | Or. | 1919
Partition of real property is governed by statute. The procedure laid down in this state is part of the Code of 1862, which contains also provisions for the foreclosure of liens upon real property. The latter is delineated in Chapter 5 of Title VI, L. O. L., and the former in the following chapter, L. O. L., Sections 422-483. It is primary learning that all parts of the same statute must be construed together and so that all shall stand if possible.
“When the lien is upon an undivided interest or estate of any of the parties, such lien, if a partition be made, is thenceforth a lien only upon the share assigned to such party; hut such share shall be first charged with its just proportion of the costs of the partition, in preference to such lien.”
Section 442 is here set down in full:
“If it he alleged in the complaint and established by evidence, or if it appear by the evidence, without such allegation in the complaint, to the satisfaction of the court, that the property or any part of it is so situated that partition cannot he made without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made; it shall decree a partition according to the respective rights of the parties, as ascertained by the court, and appoint three referees therefor, and shall designate the portion to remain undivided for the owners whose interests remain unknown or not ascertained.”
It remains to be seen by an examination of the statute whether the result, as to a mortgage lien, is changed by the subsequent sections of the enactment. It is true that by Section 440 a lien creditor defendant is required to declare in his answer how his lien is created, the amount of the debt secured thereby and remaining due and whether such debt is secured in any other way, and if so, the nature of such other security. The reason for the requirement respecting the nature of the other security is found in Section 457, which gives the court the power to require such a lien creditor to marshal his securities, exhausting other assurances for the payment of his debt before attacking the undivided interest in the land which is made the subject of partition. The reason for calling upon the lien creditor to declare the amount of his lien is that under Section 437 the court may declare the amount of the lien which thenceforward attaches to the portion of the land set apart to the lien debtor. By Section 444 a decree confirming a partition is binding and conclusive on parties who have an interest in the estate as owners in fee, or as tenants for life or for years', or as entitled to the reversion, remainder, or inheritance of such property or any part thereof after the termination of a particular estate therein, etc. This category does not include mortgage lienholders, for, as already pointed out, such persons have no estate in the realty sought to be partitioned. Indeed, Section 445 expressly declares that the decree and partition shall not
We note that under Section 456: •
“The proceeds of the sale of the encumbered property shall be distributed by the decree of the court, as follows:—
“1. To pay its just proportion of the general costs of the suit;
“2. To pay the costs of the reference;
■ “3. To satisfy the several liens, in their order t>f priority, by payment of the sums due, and to become due, according to the decree;
“4. The residue among the owners of the property-sold, according to their respective shares. ” ' ,
“All sales of real property made by the referees shall be made by public auction to the highest bidder, in the manner required for the sale of real property on execution. The notice shall state the terms of sale, and if the property or any part of it is to be sold subject to a prior estate, charge, or lien, that shall be stated in the notice.”
A sale may be made on credit: Section 462. Securities may be taken by the referee for the payment of the purchase price: Section 463.
“As has also been stated, one of the generally recognized tests of the identity of causes of action is this: Is full and adequate relief obtainable in the prior suit? If it is, then the second suit is unnecessary and vexatious and should abate; but it is otherwise if the whole relief sought in the second suit is not obtainable in the first. If the relief which may be given or the remedies available in the second suit are more extensive than can be attained in the first, a plea to the second suit of the pendency of the first is not good. The rulé in equity is ithe same as at law, that the plea of a prior suit pending can be pleaded when, and only when, all the relief sought in the second action is obtainable in the first.”
“To abate the second suit, the remedy in the first must be coextensive, and equally beneficial to the complainant.”
Recurring to the provisions of Chapter 5 of Title VI we find that a lien upon real property, other than that