Duclos v. Walton

• Citation: 28 P. 1,21 Or. 323
• Parties: DUCLOS v. WALTON.
• Decision Date: 24 November 1891
• Court: Supreme Court of Oregon

28 P. 1

21 Or. 323

DUCLOS v. WALTON.

Supreme Court of Oregon

November 24, 1891

Appeal from circuit court, Marion county; R. P. BOISE, Judge. Reversed.

Suit in equity by John B. Duclos against James Walton for an accounting. Judgment for plaintiff. Defendant appeals.

(Syllabus by the Court.)

Where a party deeded his property to another, who held a mortgage upon it, nearly equal to its value, to avoid the expense of foreclosure, and the latter made his written promise that if he should sell the same for a greater sum than his debt and expense he would pay the former all sums of money in excess of the same, held, that the transaction was not a mortgage with power of sale, and the defendant, a trustee, but that he was liable on his promise in an action at law or for money had and received, when there was such surplus arising from the sale in his hands.

J.J. Johnson, for respondent.

LORD, J.

This is a suit in equity brought by the plaintiff for an accounting and to recover such sum as may be found due him by the defendant upon such accounting as trustee in the sale of certain real property. Briefly, the facts as disclosed by the record are these: That on the 10th day of August, 1885, the plaintiff borrowed of defendant the sum of $750 for two years, with interest at 10 per cent., and secured the same by a mortgage on certain real property described therein; that neither the principal nor interest was paid when the same became due; and that in 1888, after the expiration of three years, and when the defendant was about to bring suit to foreclose the mortgage, the plaintiff, to avoid the expense legally incident to such proceeding, made and delivered to the defendant a warranty deed for said premises, and at the same time the defendant made and delivered to the plaintiff a writing to the effect that, if he should be able to sell said premises for a greater sum than the amount of the indebtedness on the note and mortgage, and the amount of any expense which he should incur in caring for and selling the same, then he promised and agreed to pay to the plaintiff all sums of money in excess of said indebtedness as aforesaid reserving to himself sufficient and no more than would reimburse him for his debt and expenses; that on the 21st day of December, 1888, the defendant sold said premises to one Imus for a span of horses, a buggy, and promissory notes for $1,000, and that he sold the horses and buggy for $300; but that before the notes were collected in full, and any sum of money was in the hands of the defendant in excess of the amount of his debt and expenses, the present suit was instituted. Upon this state of facts the plaintiff has brought this suit, upon the theory that the whole transaction constitutes a mortgage with a power of sale, and that the defendant was trustee for the full sum for which the premises were sold, and liable for the same, less his debt and expenses. The contention for the defendant is that the plaintiff has not pursued his remedy, which is at law, and not in equity, when his right of action accrues. He insists that by the terms of his contract he is not liable for any sum of money except such sum as is in excess of his debt and expenses incurred, and as this sum, when received is a definite and ascertained sum, his remedy is at law for money had and received or for breach of his promise to pay. Looking at...