143 P. 51 | Or. | 1915
Lead Opinion
delivered the opinion of the court.
The ground on which this motion is based is that the appeal was not taken within 60 days from the date of the decree, and that service was not made on the Sheflers. Laws of 1913, page 617, amending Section 550, L. O. L., provides, among other things:
“An appeal * * shall be taken by serving and filing the notice of appeal, within 60 days from the entry of the * * decree. * * ”
The decree in this case was rendered April 30, 1914. The notice of appeal was served by mail. In the return of service it does not appear when or where the service was made, except that the affidavit of mailing was sworn to June 29,1914. Geo. C. Shefler and Belle M. Shefler were not served although they were the debtors on said note, against whom a personal judgment for $75,000 was rendered in the decree appealed from. The notice, with the return indorsed thereon, was filed June 30th.
The motion to dismiss is denied.
Motion Denied.
Opinion on the Merits
Affirmed October 19, 1915.
On the Merits.
(152 Pac. 234.)
In Banc. Statement by Mr. Justice Harris.
M. L. Jones conveyed certain real property to George C. Shefler by a deed dated January 31, 1912; and on the same day Shefler gave Jones a note for $35,000, payable two years after date, which was secured by a mortgage on the land. On April 25,1912, George C. Shefler and his wife, Belle M. Shefler, gave to Ladd & Bush a note for $5,000, payable on or before one year after date, and on the same day the payees indorsed the note, without recourse, to M. L. Jones, and on the following day Shefler and his wife secured the note by a second mortgage on the land described in the deed dated January 31, 1912.
The United States National Bank of Salem commenced this suit on February 15,1914, for the purpose of foreclosing the $35,000 note and mortgage. The defendants are George C. Shefler, Belle M. Shefler, Ladd & Bush, a corporation, J. H. Cummings, S. C. Spencer, Beneta R. Stroud, F. J. Eldriedge and Swastika
Ladd & Bush appeared by filing an answer and cross-complaint. This corporation alleges the execution of the $5,000 note to Ladd & Bush on April 25, 1912, and the indorsement without recourse to Jones; that on April 26, 1912, Shefler and wife secured the note by giving a second mortgage on the land; that afterward Jones indorsed the note to Ladd & Bush; and that he also assigned the mortgage. Shefler, Eldriedge and the Swastika Farms Company answered the pleading filed by Ladd & Bush by alleging that the real property had been transferred to Shefler in trust
Submitted on briefs without argument under the proviso of Supreme Court Buie 18: 56 Or. 622 (117 Pac. xi). Affirmed.
For appellants there was a brief submitted over the names of Mr. George G. Bingham, Mr. George J. Cameron, Mr. Dan R. Murphy, Messrs. Conley & De Neffe, Messrs. Brodie & Swett, Mr. E. E. Heckbert, Messrs. Wilbur & Spencer and Mr. Henry St. Rayner.
For respondent there was a brief over the name of Messrs. Carson & Brown.
delivered the opinion of the court.
The real purpose of the defenses interposed against the notes and mortgages was to compel the plaintiff and Ladd & Bush to stand in the shoes of Jones. As revealed by the printed abstract, the trial court found from the evidence that both the plaintiff and Ladd & Bush purchased the notes and mortgages for a valuable consideration without notice of any infirmities. The suit commenced by Jones on July 26, 1912, ter
“Jones cannot have both the land and the $35,000 note signed by Shefler. If for any reason the note has been reduced to a judgment, Jones must cause it to be satisfied immediately upon the filing of the mandate 'in the Circuit Court. If the note has not been transformed into a judgment, Jones must at once cause the note to be canceled and surrendered. If Jones is not willing to comply with the conditions imposed, the conveyance to Shefler will not be disturbed, because as between Eldriedge and Shefler a court of equity will leave the controversy where it was first found.”
Concerning the $5,000 note we said that:
“Shefler kept at least $1,000 of the $5,000 borrowed from Ladd & Bush, and Eldriedge used the remainder for improvements. Shefler should not be permitted to profit from the transaction. Except as to the $1,000 retained by Shefler and not used for improvements, the $5,000 note and mortgage should be taken care of by Jones.”
It will be noted that the decree in Jones v. Shefler, 77 Or. 284 (151 Pac. 463), adjudicates the rights and equities of the interested parties and provides for every contingency. The decree of the Circuit Court in the instant case is affirmed; but it must be understood that this decree does not in any way modify or limit the directions contained in Jones v. Shefler, 77 Or. 284 (151 Pac. 463). Affirmed.