11 Or. 154 | Or. | 1883
By the Court,
The denial of “any knowledge or information sufficient to form a belief” was a good denial,under the statute,and has been so held by this court. (Civil Code, sec. 713; Robbins v. Baker, 2 Or., 52; Sherman v. Osborn, 8 Or., 66.) But the issue thus joined was immaterial. If the respondent was a surety only on the first note secured by the mortgage executed by the principal debtor to Smith, Brassfi’eld & Co., that fact would not of itself entitle him to control the application of the proceeds of sale of the property covered by the mortgage. It is true that considerable diversity and, perhaps, some conflict exist among the authorities upon this point. But those which hold that a surety in the situation of the respondent has no such right, are not only more direct adjudications upon the precise question involved here than the others, which seem to countenance the opposite view, but the doctrine they announce appears _ consonant with sound legal principles. (Belcher v. Hartford Bank, 15 Conn., 381; Stamford Bank v. Benedict, id., 437; Wilcox v. Fairhaven Bank, 7 Allen, 270; Mathews v. Switzler, 46 Mo., 301.)
The appellants in this case held all three of the notes, as well as the mortgage. There is no such question here as is usually presented where there is litigation over the application of payment between creditors holding distinct debts
Decree reversed, with directions to dismiss the bill.