Darr v. Guaranty Sav. & Loan Ass'n.

• Decision Date: 17 July 1905
• Citation: 81 P. 565,47 Or. 88
• Parties: DARR v. GUARANTY SAVINGS & LOAN ASS'N et al. [*]
• Court: Oregon Supreme Court

81 P. 565

47 Or. 88

DARR v. GUARANTY SAVINGS & LOAN ASS'N et al. ^[*]

Supreme Court of Oregon

July 17, 1905

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by I.G. Darr against the Guaranty Savings & Loan Association and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The complaint alleges the incorporation of the defendants the Guaranty Savings & Loan Association and the State Institution for Savings; that the latter claims some interest in the realty involved; that defendant Guesmer claims to be the assignee of the mortgage in question; that plaintiff is the owner of certain real property (describing it); "that on or about March 1, 1895, plaintiff executed to defendant Guaranty Savings & Loan Association a nonnegotiable first mortgage bond, by which he agreed to pay said defendant $900 with interest at the rate of 6 per cent. per annum, interest payable monthly, also premium at the rate of 7 per cent. per annum, payable monthly, and 60 cents per month as dues on each of 9 shares in said defendant company, and also plaintiff executed to said defendant Guaranty Savings & Loan Association a nonnegotiable mortgage by which he mortgaged to said defendant the aforesaid property to secure the payment of the said $900, premium and interest, according to the tenor of the above-described nonnegotiable first mortgage bond, which mortgage was duly recorded in the office of the recorder of conveyances of Multnomah county, Oregon, in Book 159 of Mortgages, at page 400 thereof; that, by the terms of said bond and mortgage, plaintiff agreed to pay, and defendant agreed to accept from plaintiff, for the use of the money so loaned, more than 10 per cent. per annum, viz interest at the rate of 6 per cent. per annum, payable monthly, and premium at the rate of 7 per cent. per annum payable monthly; that said bond, mortgage, and all other papers signed and executed by plaintiff were made and delivered by said plaintiff to defendant in the city of Portland. Multnomah county, Oregon, and all of said payments were to be made and were made by plaintiff and received by defendant in said city of Portland. Plaintiff further alleges that he has paid said defendant Guaranty Savings & Loan Association all of said principal sum, with more than 6 per cent. interest per annum for the use of the said $900, and is entitled to have all payments made to defendant Guaranty Savings & Loan Association applied in satisfaction of the original debt, and to have said mortgage canceled and released, and the cloud on the title to said property removed, and the title to said property quieted." The prayer is that the mortgage be decreed to be usurious; that all payments made thereon by plaintiff, above 6 per cent interest, be applied upon the original debt; that the bond and mortgage be decreed to be paid and satisfied, and the mortgage canceled; that the cloud upon plaintiff's property by reason of said mortgage be removed, and his title quieted; and for such other relief as may seem equitable. The defendants interposed a demurrer to this complaint, which was overruled, and, refusing to plead further, the plaintiff had a decree, from which the former appeal.

R.F. Belt, for appellants.

Raleigh Trimble, for respondent.

WOLVERTON C.J. (after stating the facts).

This suit is denominated by plaintiff as one to remove a cloud from title, but it is in reality for the cancellation of a mortgage upon the ground that the debt which it was given to secure has been fully paid and satisfied. The question presented is whether the...