Cooper v. Sagert
| Decision Date | 18 March 1924 |
| Citation | 223 P. 943,111 Or. 27 |
| Parties | COOPER v. SAGERT ET AL. [*] |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Washington County; George R. Bagley Judge.
Action by W. L. Cooper against F. W. Sagert and another. Judgment for defendants, and plaintiff appeals. Affirmed.
This is a suit to set aside a deed of 10 acres of land and to subject the land to the payment of a certain judgment. Upon motion of defendants for a judgment and decree upon the pleadings, a decree was rendered in favor of defendants and against plaintiff, from which plaintiff appeals.
W. L. Cooper, of Portland, for appellant.
Thomas H. Tongue, Jr., of Hillsboro, for respondents.
It appears from the complaint of plaintiff, W. L. Cooper, that on the _______ day of June, 1917, one O. Ellenreider instituted a suit in the state of Washington against F. W Sagert, and a deficiency judgment was rendered against F. W Sagert on the 15th day of November, 1917, for the sum of $933.60, no part of which has been paid.
It is further alleged that about December --, 1917, the said O Ellenreider instituted an action in the circuit court of the state of Oregon for the county of Washington against the defendant F. W. Sagert, setting forth the deficiency judgment rendered in the superior court of the state of Washington for Clarke county, and in December, 1917, secured judgment against defendant F. W. Sagert for the sum of $933.60, together with interests and costs; that no part of said judgment has been paid or secured; that at the time the complaint was filed in Washington county an attachment was issued and levied upon a certain 10 acres of land in that county.
It is further alleged that on the 4th day of September, 1917, F. W. Sagert executed a deed of the 10-acre tract to defendant Mildred F. Johnson in fraud of the creditors of said F. W. Sagert, and particularly O. Ellenreider, with the knowledge of and notice to defendant Mildred F. Johnson.
Prior to the institution of this suit it is alleged O. Ellenreider, for a valuable consideration, sold, assigned, and transferred that certain judgment recovered in the circuit court of the state of Oregon for Washington county on the _______ day of December, 1917, against F. W. Sagert for the sum of $933.60, with interest and costs, to plaintiff, W. L. Cooper, and prays that the deed from F. W. Sagert to Mildred F. Johnson, conveying the 10 acres of land, be set aside and held for naught, and the judgment lien of this plaintiff be declared to be a superior lien upon the 10-acre tract.
Defendant F. W. Sagert answered, admitting the foreclosure suit mentioned in the state of Washington instituted by O. Ellenreider to foreclose two mortgages, naming as defendant in the suit, among others, M. Ritter, also known as Mike Ritter, and that a deficiency judgment was rendered against M. Ritter and defendant Sagert for approximately $933.63; but denies that no part of said deficiency judgment has been paid and alleges the same has been paid in full. Defendant also admits the rendition of the judgment in Washington county, Or., in favor of O. Ellenreider and against F. W. Sagert, based upon the deficiency judgment rendered in the state of Washington for the sum of $933.60, with interest and costs, admits the deed executed for Sagert to Mildred F. Johnson, and denies the allegations as to its being fraudulent.
For a further and separate answer the defendant alleges the facts in relation to the suit by O. Ellenreider in the superior court of the state of Washington for Clarke county against J. F. Rann and B. Barbara Rann, his wife, J. W. Rubish, F. W. Sagert, and Mr. Ritter, also known as Mike Ritter, for the foreclosure of a mortgage for the sum of $4,200 given by G. F. Rann, B. Barbara Rann, and J. W. Rubish to Mike Ritter, upon land in Clarke county, Wash., and also to foreclose a second mortgage for the sum of $800 given by F. W. Sagert to Mike Ritter upon the same land, both of which notes and mortgages had been sold and assigned to O. Ellenreider, and that a decree was entered therein on the 3d day of October, 1917, in favor of plaintiff and against defendant, and thereafter the land was sold under execution for the sum of $3,500. Thereafter on November 15, 1917, the superior court of the state of Washington for Clarke county entered a deficiency judgment and decree in favor of O. Ellenreider for the sum of $1,488.59, and on the same day a decree and judgment was entered in the Washington court against F. W. Sagert and M. Ritter for the sum of $933.60; said M. Ritter having guaranteed the payment of said promissory note.
It is further alleged: That on December 3, 1917, O. Ellenreider commenced an action in the circuit court of the state of Oregon for Multnomah county against Mike Ritter, alias M. Ritter, to recover $1,488.59 with interest, and the further sum of $800 with interest, and the sum of $100 as attorney's fees, on the second cause of action, being the sums remaining unpaid after the foreclosure of the mortgages in the state of Washington for which the deficiency judgment was rendered. That thereafter on November 15, 1917, judgment was regularly entered in Multnomah county in favor of O. Ellenreider as plaintiff and against Mike Ritter, alias M. Ritter, as defendant for the sum of $1,488.59, with interest at 6 per cent. from the 15th of November, 1917, on the first cause of action, and the sum of $800, with interest, at 6 per cent. from the 28th of October, 1916, together with interest at 6 per cent. upon $24 from April 28, 1917, and the sum of $80 attorney's fees. That said sum of $800 and interest and costs, on the second cause of action, in the suit above mentioned in Multnomah county, was for the same note for $800 given by this defendant F. W. Sagert to M. Ritter, and by him assigned to O. Ellenreider, and is the same note upon which a deficiency judgment was entered in the superior court of the state of Washington for Clarke county, which plaintiff alleges has been sold and assigned by O. Ellenreider to him, and upon which plaintiff bases his cause of action.
It is further alleged that thereafter execution was duly issued on the judgment in Multnomah county to the...
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...claim was extinguished with respect to all remaining contract obligors. In support of that assertion,VTNA relies on Cooper v. Sagert et al., 111 Or. 27, 33, 223 P. 943 (1924), in which the court held that, although a creditor may obtain separate judgments for the same debt against separate ......
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...on the plaintiffs to reimburse the assignee if we uphold the trial court's decision on the defendant's motions. See Cooper v. Sagert, 111 Or. 27, 33, 223 P. 943 (1924) (if assigned judgment is set aside, assignee may recover for failure of consideration); cf. Hall v. Mathewson, 192 Wash. 65......
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...the payment of the principal's obligation in full and upon approval of its exercise by a court of equity. See also Cooper v. Sagert, 111 Or. 27, 34-35, 223 P. 943, 945 (1924). This is true whether the surety entered into a previous contract binding him to payment or whether the surety is a ......
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Mayer v. First Nat. Bank of Or.
...appear to draw a distinction between the right of subrogation and the enforceability of the rights thus acquired. In Cooper v. Sagert, 111 Or. 27, 34--35, 223 P. 943 (1924) this court 'The modern rule seems to be that a surety by payment does not become Ipso facto subrogated to the rights o......